Taylor v. West Virginia Pulp & Paper Co., 20

• Decision Date: 23 September 1964
• Docket Number: No. 20,20
• Citation: 262 N.C. 452,137 S.E.2d 833
• Court: North Carolina Supreme Court
• Parties: John T. TAYLOR, Jr., Petitioner, v. WEST VIRGINIA PULP & PAPER COMPANY, Respondent.

Page 833

137 S.E.2d 833

262 N.C. 452

John T. TAYLOR, Jr., Petitioner, v. WEST VIRGINIA PULP & PAPER COMPANY, Respondent.

No. 20

Supreme Court of North Carolina.

Sept. 23, 1964

LeRoy, Wells & Shaw, Elizabeth City, for petitioner.

Rodman & Rodman, Washington, for respondent.

SHARP, Justice.

The assignments of error properly made raise only this dual question: Are the judge's findings of fact supported by the evidence and, if so, do they support the judgment?

As one taking action preparatory to cutting and removing standing timber from his land, petitioner is entitled to condemn a cartway over respondent's property, provided (1) there is no public road or other adequate means of transportation affording him necessary and proper access to his own property, and (2) he satisfies the court that it is necessary, reasonable and just that he had such a private way. G.S § 136-69. Respondent's evidence that ten years ago logs were transported over the sixty-foot easement to Mill Tail Creek and rafted down it to Alligator River is sufficient to sustain his Honor's finding of fact that Mill Tail Creek is a navigable stream. 'If a stream is 'navigable in fact * * * it is navigable in law.' Gould on Waters, (3 Ed.) § 67. The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test, and not the extent and manner of such use. ' State v. Twiford, 136 N.C. 603, 48 S.E. 586; accord, State v. Baum, 128 N.C. 600, 38 S.E. 900; Swan Island Club, Inc. v. White, 114 F.Supp. 95 (E.D.N.C.), aff'd sub nom. Swan Island Club, Inc. v. Yarbrough, 209 F.2d 698 (4th Cir.). There is no evidence in the record to suggest that Mill Tail Creek is not still navigable. Therefore, it appears that petitioner does, in fact, have access to his lands albeit by water. If such access affords adequate and proper means of ingress and egress he is not entitled to another and different way by land even though it would prove more convenient and economical. Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890; Kanupp v. Land, 248 N.C. 203, 102 S.E.2d 779; Warlick v. Lowman, 104 N.C. 403, 10 S.E. 474; Plimmons v. Frisby, 60 N.C. 200.

Petitioner argues that the 'facts epitomize the necessity, reasonableness, and justice of a cartway from petitioner's land to and over respondent's existing road (Mill Tail Road) to the public road,' and that the court erred in not so finding. We hold otherwise. Even a petitioner qualifying under G.S. § 136-69 for a private way over the lands of another is not entitled to select his route or to use existing private roads on a respondent's land as a matter of right, however expedient and economical their use would be to him. The location of the way is the task of a jury of view, but its acts are reviewable by the court. Candler v. Sluder, 259 N.C. 62, 130 S.E.2d 1; Garris v. Byrd, 229 N.C. 343, 49 S.E.2d 625. Mill Tail Road, over which petitioner seeks to acquire an easement, has been constructed and is maintained by respondent at great cost. Its use by petitioner as a logging road would increase both maintenance and supervision costs for respondent and, once established as a cartway for petitioner's use, it would also become a quasi-public road. Parsons v. Wright, 223 N.C. 520, 27 S.E.2d 534.

If the Pulp and Paper Company had constructed no roads whatever on its property and Taylor required a road across it, he would perforce have to construct his own road. Unless the only avenue over a respondent's land reasonably adequate for access to a petitioner's property happened to be a road already constructed by the respondent, a petitioner entitled to a cartway would have no right, as a matter of law, to the use of that particular road. Otherwise, a petitioner is in no more favored a position because a respondent has constructed a road across his property than he would be if no such road existed. G.S. § 136-68 and G.S. §...