State v. Fisher

• Decision Date: 05 November 1895
• Citation: 23 S.E. 158,117 N.C. 733
• Parties: STATE v. FISHER.
• Court: North Carolina Supreme Court

23 S.E. 158

117 N.C. 733

STATE v. FISHER.

Supreme Court of North Carolina

November 5, 1895

Appeal from superior court, Guilford county; Starbuck, Judge.

B. J Fisher, indicted for obstructing a highway, was acquitted and the state appeals. Affirmed.

Where the public claims title to the easement in a highway by user the burden rests upon the state to show adverse possession.

The Attorney General, for the State.

D Schenck and R. M. Douglas, for appellee.

AVERY J.

As a rule, the right to the easement in a public highway is acquired either by dedication, the exercise of the power of eminent domain, or user. Kennedy v. Williams, 87 N.C. 6. After the execution of grants to the easement, or the rendition of a final decree in condemnation proceedings controversies seldom arise as to the existence of the servitude imposed by either of the two methods. Where the public claims title to the easement by user, however, the burden rests upon the state, or its agencies, such as towns, as it does upon an individual claiming the right to pond water upon the land of another, to show title by adverse possession. The public, like an individual attempting to establish title under like circumstances, must prove such acts as indicate a continuous and unequivocal assertion of the right by the public for 20 years, and the best evidence of such user is the fact that the proper authorities have appointed overseers, and designated hands to work, and assumed for the public the responsibility of keeping the way in repair. Kennedy v. Williams, supra; Frink v. Stewart, 94 N.C. 484; State v. Purify, 86 N.C. 682; State v. McDaniel, 8 Jones (N. C) 284. The continuous use, by the people living in the neighborhood, or in the state, for a period of even 60 years, does not deprive the owner of his right to resume control, nor does it devolve upon the properly constituted authorities of the county, or the town, as the case may be, the duty, with the incidental expense to the public, of its reparation. State v. McDaniel, supra; Boyden v. Achenbach, 79 N.C. 539; State v. Johnson, 11 Ired. 651. In Johnson's Case, supra, Judge Pearson said that 20 years was "the shortest time there could have been the presumption of a dedication," and added, in discussing the facts of that case: "Still, that has not been done, and so there has neither been an express user nor implied dedication." A mere verbal license or permission to enter upon the land of another for the purposes of a private way excuses the person entering pursuant to it from liability for a trespass, but is always revocable at the option of the owner who grants it. Railroad v. Railroad, 104 N.C. 658, 10 S.E. 659. Where it is the intent of the parties, in case of a mere license, "to pass a more prominent and continuing right in the land, whereby the authority or estate of the owner could be in the least impaired, it is then not only necessary to be evidenced by writing, but would only be made effectual by deed." McCracken v. McCracken, 88 N.C. 277. The owner of land cannot, by executing a deed to the public conveying a right of way to a highway, compel the authorities to assume the burden of repairing it, unless the properly constituted agents of the county or town accept it. Kennedy v. Williams, supra. The ordinary, but not the only, method of signifying such acceptance is by working it, in the usual way, as a public street, or the appointment of an overseer and the assignment of hands to work it by the county. The implication that the dedication is accepted may arise from other acts of dominion which show an unequivocal claim by the public to the benefits or the burdens incident to its full and complete enjoyment. When the defendant opened up the street, then outside of the confines of the city of Greensboro (in the year 1890), if before the subsequent passage of the act (Laws 1891, c. 300) which extended the limits so as to include it, he had sold a single one of the lots abutting on this apparent extension of North Elm street, he and those claiming under him would have been estopped from denying the right of such purchaser and those in privity with him to use the street, as laid down in the plot, and called for as his boundary line in the deed conveying it to him, to all intents...