West v. Slick, 111PA83

Citation313 N.C. 33,326 S.E.2d 601
Decision Date27 February 1985
Docket NumberNo. 111PA83,111PA83
PartiesMargaret M. WEST, Clifford Scott, Caleb Poyner, Elwyn Walker, James O. Dunton, Donald Adams, Samuel H. Lamb, Samuel H. Lamb, II, Pamela V. Weiland, Petitioners, v. Earl F. SLICK and wife, Jane P. Slick, Pine Island Development Venture, RDC, Inc., Respondents.
CourtUnited States State Supreme Court of North Carolina

Sanford, Adams, McCullough & Beard by J. Allen Adams, Charles C. Meeker and Steven J. Levitas, Raleigh, for petitioners.

Womble, Carlyle, Sandridge & Rice by W.F. Womble, Allan R. Gitter and William McBlief, Winston-Salem, Leroy, Wells, Shaw, Hornthal, Riley & Shearin by Dewey W. Wells, Elizabeth City, for respondents.

MEYER, Justice.

The primary issue presented on this appeal is whether the petitioners' evidence was sufficient to take the case to the jury. We find that it was and for the reasons stated herein we reverse the decision of the Court of Appeals and remand the case to the trial division for trial on the merits.

The area of North Carolina known and usually referred to as "the Outer Banks" consists of narrow windswept islands and spits of land guarding our coastal sounds and waters and is characterized by its remoteness, its sparsity of population, its frequent battering by high winds and high seas and the accompanying shifting sands, erosion and accretion. The area offers over three hundred miles of ocean beaches stretching from Corolla near the Virginia border to Sunset Beach on the South Carolina border. Scattered on these barrier islands are villages and communities of unique qualities with picturesque names such as Duck, Kitty Hawk, Kill Devil Hills, Nags Head, Whalebone, Waves, Salvo, Salter Path, Indian Beach, Topsail, and Sunset. This unique area is not only home to a hardy people, it beckons to the vacationer, the naturalist, the sightseer, the sailor, the fisherman and the hunter alike. These lands are, at the same time, sturdy guardians of our mainland against fierce winds and seas and fragile coastal ecosystems.

Respondents are individuals and joint ventures owning a tract of land known as the "Pine Island property" approximately four miles long and from three hundred yards to three-quarters of a mile wide running between the Atlantic Ocean on the east and Currituck Sound on the west and lying between Corolla to the north and the Currituck-Dare County line to the south. 1 The northern property line of the tract is approximately seven miles south of Corolla while the southern property line is located near the Currituck-Dare County line. The tract actually extends into Dare County a short distance but the allegations in the pleadings refer only to the tract bounded on the south by the Currituck-Dare County line.

Petitioners are nine individuals, some of whom are owners of real property on the Outer Banks of Currituck County. Some of the petitioners are residents of Corolla, some of Knotts Island, and some are residents of other areas of Currituck County north of respondents' property. Yet others are nonresidents of North Carolina.

The property in question consists of sand beach, dunes and marsh, and comprises about four of the eleven miles of the outer banks between the Currituck-Dare County line and the Village of Corolla. The property has always been and largely still is wild, open land.

Pursuant to a private easement respondents permit certain individuals to cross their property on a new paved road. Respondents however have, by the use of chain link gates, a guard house and conspicuous signs, prohibited vehicular traffic by the general public, including petitioners, from crossing the Pine Island property. Because vehicular access to Corolla from the north is blocked by the Back Bay National Wildlife Refuge and from the east and west by the Atlantic Ocean and Currituck Sound respectively, respondents in effect are denying the petitioners and the public the only available vehicular access to and from Corolla and the northern reaches of the Currituck outer banks. The respondents have denied access contending that the ways and easements across their property are private.

N.C.G.S. § 136-67 provides, in pertinent part, as follows:

Neighborhood public roads.--All those portions of the public road system of the State which have not been taken over and placed under maintenance or which have been abandoned by the Department of Transportation, but which remain open and in general use as a necessary means of ingress to and egress from the dwelling house of one or more families, and all those roads that have been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Human Resources, and all other roads or streets or portions of roads or streets whatsoever outside of the boundaries of any incorporated city or town in the State which serve a public use and as a means of ingress or egress for one or more families, regardless of whether the same have ever been a portion of any State or county road system, are hereby declared to be neighborhood public roads and they shall be subject to all of the provisions of G.S. 136-68, 136-69 and 136-70 with respect to the alteration, extension, or discontinuance thereof,.... Provided, that this definition of neighborhood public roads shall not be construed to embrace any street, road or driveway that serves an essentially private use, and all those portions and segments of old roads, formerly a part of the public road system, which have not been taken over and placed under maintenance and which have been abandoned by the Department of Transportation and which do not serve as a necessary means of ingress to and egress from an occupied dwelling house are hereby specifically excluded from the definition of neighborhood public roads, and the owner of the land, burdened with such portions and segments of such old roads, is hereby invested with the easement or right-of-way for such old roads heretofore existing. Upon request of the board of county commissioners of any county, the Department of Transportation is permitted, but is not required, to place such neighborhood public roads as above defined in a passable condition without incorporating the same into the State or county system, and without becoming obligated in any manner for the permanent maintenance thereof.

This statute declares three distinct types of roads to be neighborhood public roads. The first part of the statute concerns only those roads which were once a part of the "public road system." The second part of the statute declares to be neighborhood public roads all those roads that had been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare. The third part of the statute declares to be neighborhood public roads all those roads outside the boundaries of municipal corporations which served a public use and as a means of ingress and egress for one or more families. See Walton v. Meir, 14 N.C.App. 183, 188 S.E.2d 56, cert. denied, 281 N.C. 515, 189 S.E.2d 35 (1972).

By this proceeding the petitioners sought to establish the existence of two roads for use by the public across respondents' lands by one or more of the following theories: (1) a "neighborhood public road" under the first part of N.C.G.S. § 136-67 relating to roads which were once a part of the public road system, (2) a "neighborhood public road" under the third part of N.C.G.S. § 136-67 concerning roads located outside city limits which serve a public use, (3) a "public road" (as opposed to a "neighborhood public road") through prescription based upon continuous and open public use for over twenty years, and (4) a "public road" by implicit or explicit dedication.

The Court of Appeals did not reach the question of whether petitioners' evidence concerning any one or more of the four theories was sufficient for submission to the jury. That court held that as a preliminary matter, petitioners' evidence failed to establish the identity or situs of either roadway claimed--that is, the evidence failed, as a matter of law "to disclose that travel was confined to a definite and specific line," citing Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371 (1946) and Cahoon v. Roughton, 215 N.C. 116, 1 S.E.2d 362 (1939).

Upon review, this Court must determine: (I) whether the Court of Appeals erred in its holding that the evidence failed as a matter of law to identify specific and definite routes of use, and (II) if the Court of Appeals erred in that regard, whether there was sufficient evidence to take the case to the jury on one or more of the theories propounded by the petitioners and brought forward on appeal.

I.

At the close of the petitioners' evidence the respondents made a motion for a directed verdict and the trial judge allowed the motion and entered judgment dismissing the action. We conclude that, upon the evidence presented by the petitioners, the trial court erred in so directing the verdict and dismissing the action.

In a jury trial, the motion for a directed verdict is the only procedure by which a party may test the sufficiency of his adversary's evidence to go to the jury. Creasman v. Savings & Loan Assoc., 279 N.C. 361, 183 S.E.2d 115 (1971), cert. denied, 405 U.S. 977, 92 S.Ct. 1204, 31 L.Ed.2d 252 (1972).

Upon a motion for a directed verdict pursuant to N.C.G.S. 1A-1, Rule 50, the court must view the evidence in the light most favorable to the nonmovant, resolving all conflicts in his favor and giving him the benefit of every inference that could reasonably be drawn from the evidence in his favor. Norman v. Banasik, 304 N.C. 341 283 S.E.2d 489 (1981); Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). It is only where the evidence, when so considered, is insufficient to support a verdict in the nonmovant's favor that the motion for directed verdict should be granted. Snow v. Power Co., 297 N.C. 591, 256 S.E.2d...

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