Tise v. Whitaker Harvey Co

• Citation: 144 N.C. 507,57 S.E. 210
• Parties: TISE v. WHITAKER HARVEY CO.
• Decision Date: 07 May 1907
• Court: United States State Supreme Court of North Carolina

57 S.E. 210

144 N.C. 507

TISE

v.WHITAKER HARVEY CO.

Supreme Court of North Carolina.

May 7, 1907.

1. Injunction — Preliminary Injunction — Grounds fob Continuing Until Hearing.

Where, in an action to enjoin the obstruction of an alley on the ground that it had become a public way, the evidence raises serious question as to the existence of facts making for plaintiff's right and sufficient to establish it, a preliminary restraining order will be continued to the hearing.

[Ed. Note.—For cases in point, see Cent, Dig. vol. 27, Injunction, § 358.]

2. Easements — Creation, Existence, and Termination — Rights as Against Purchaser of Servient Estate.

An unrecorded writing, not under seal, giving a person permission to use an alley, is of no effect as a grant of a private way as against a registered deed of the property subsequently executed to another person.

3. Licenses—Use of Real Property—Estoppel.

A license to use an alley does not estop the licensee from denying the licensor's ownership except during the time that the license exists and the right is being exercised.

4. Easements — Estoppel to Claim —Right of Way.

The conveyance of a lot, the boundaries of which included an alley, did not estop the grantor from' afterwards asserting a claim to use the alley as a public way incident to his ownership of an entirely different piece of property.

Appeal from Superior Court, Forsyth County; Ward, Judge.

Action by J. C. Tise against the Whitaker Harvey Company. From a judgment for plaintiff, defendant appeals. Affirmed.

There was evidence on the part of plaintiff tending to show that plaintiff owned a tobacco factory abutting on an alley in the city of Winston, N. C, running from Liberty street on the north, to Seventh street on the south and also a number of tenement houses fronting on Liberty street. That this alley was the only present actual or practicable means of access from the other public streets of the town to the said factory and to the rear of said tenement houses. That this alley, for 20 years and more, had been used by the public adversely and of right as a public highway. And, further, that S. A. Ogburn, under whose deed of conveyance the present defendant claimed and held the property prior to said deed to defendant, executed and delivered to plaintiff, for valuable consideration, a written paper conferring upon the plaintiff the right to use said alley in words as follows: "This is to certify that I agree to give to J. Cicero Tise the privilege of using my alley, or driveway, between Liberty street and Seventh street." Dated May 10, 1888, and signed "S. A. Ogburn." That afterwards, to wit, said S. A. Ogburn conveyed his own factory, which also abutted on the alley, to defendant company, a corporation duly organized under the laws of the state, together with a lot of land, the boundaries of which included a lot adjacent to said factory of defendant and included also the alley in question. That the existence of this alley as a public street was well known to 5. A. Ogburn and to the officers of said corporation at the time they bought and took deeds for their property. That, soon after taking its deed from S. A. Ogburn, defendant commenced to build a strong, permanent fence across said alley, claiming the right to do so, and would proceed with this purpose and obstruct and prevent all use of said alley as a means of approach to plaintiff's property, unless restrained, etc. There was much evidence offered by defendant to the effect that there had never been any dedication of this alley, nor any adverse user of same by the public; but that any and all user thereof had been permissive only. Defendant further claimed that the very paper writing which plaintiff claimed as one source of his right was, in fact, an acknowledgment of the ownership of S. A. Ogburn, the grantor of defendant, and plaintiff was estopped by thispaper from resisting defendant's claim, and offered evidence to show that this paper was only a license without any consideration, and revocable at the will of S. A. Ogburn or his assignee. Defendant further showed that in 1888 said S. A. Ogburn, grantor of defendant, had bought from plaintiff a lot of land, the boundaries of which included the alley in question, and plaintiff had conveyed same to said S. A. Ogburn without excepting or reserving any right of way over the alley, and without making any reference to it. The court below adjudged that the preliminary injunction be continued to the hearing, and defendant excepted and appealed.

Watson, Buxton & Watson, for appellant.

Lindsay Patterson and A. H. Eller, for appellee.

HOKE, J. (after stating the facts). It is the rule with us that, in actions of this character, the main purpose of which is to obtain a permanent injunction, if the evidence raises serious question as to the existence of facts which make for plaintiff's right and sufficient to establish it, that a preliminary restraining order will be continued to the hearing. Hyatt v. De Hart, 140 N. C. 270, 52 S. E. 781; Harrington v. Rawls, 131 N. C. 30, 42 S. E. 461; Whittaker v. Hill, 96 N. C. 2, 1 S. E. 639; Marshall v. Commissioners, 89 N. C. 103. And it is well to note here that, while the subject-matter of dispute is termed an alley, there is evidence tending to show that it has become a public way; and, if this view should prevail on the final hearing, the rights of the parties with reference to it must be determined by the rules applicable to streets and highways. Elliott on Roads and Streets, §§ 23, 24. In section 24 it is said: "Whatever may be the dimensions of a way, if it be opened to the free use of the public, it is a highway; nor Is its character determined by the number of persons who actually use it for passage. The right of the public to use the way, and not the size of the way or the number of persons who choose to exercise that right, determines its character. An alley of small dimensions, actually used by only a limited number of persons, but which the public have a general right to use, may be regarded as a public way. Itis to be understood, of course, that the way cannot be deemed a public one so as to charge the local authorities with the duty of maintaining it, unless it has been legally established or accepted; but, if It is so established or accepted, it is to be considered one of the public ways, whatever may be its size or situation, provided it is suitable for any kind of travel by the public." And in such case, too, it is held that where a highway is Injured by an obstruction which is unlawful and continues, and which causes special damage to an abutting owner, such owner has a peculiar interest in the matter, which entitles him to maintain an action in his own name for the wrong, and may, as a general rule, call on the court to Interfere for his relief by...