Hubbard v. Josey , 267 N.C. 651 ( 1966 )

148 S.E.2d 638 (1966) 267 N.C. 651

A. P. HUBBARD and wife, Marion T. Hubbard, Randolph Kabrich and wife, Nancy B. Kabrich,
v.
Claude K. JOSEY and wife, Linnell B. Josey.

No. 701.

Supreme Court of North Carolina.

May 25, 1966.

Thomas Turner and Harry Rockwell, Greensboro, for plaintiffs, appellants.

Douglas, Ravenel, Josey & Hardy, Greensboro, for defendants Josey, appellees.

PER CURIAM.

Unquestionably the instant case presents a justiciable controversy and the parties are entitled to a declaration of their rights, and the action should be disposed of only by a judgment declaring them. Nationwide Mutual Insurance Co. v. Roberts, 261 N.C. 285, 134 S.E.2d 654, where it is said:

"``The test of the sufficiency of a complaint in a declaratory judgment proceeding is not whether the complaint shows that the plaintiff is entitled to the declaration of rights in accordance with his theory, but whether he is entitled to a declaration of rights at all, so that even if the plaintiff is on the wrong side of the controversy, if he states the existence of a controversy which should be settled, he states a cause of suit for a declaratory judgment. And where a complaint in a proceeding for a declaratory judgment stated a justiciable controversy, a demurrer should have been overruled, and after the filing of an answer a decree containing a declaration of right should have been entered.'" 1 Anderson, Declaratory Judgments, (2d ed.) § 318; Cabell v. City of Cottage Grove, 170 Or. 256, 130 P.2d 1013, 144 A.L.R. 286.

"In the absence of a stipulation, a declaratory judgment may be entered only after answer and on such evidence as the parties may introduce upon the trial or hearing. For the safe reason, a judgment of nonsuit may not be entered. Board of Managers etc. v. City of Wilmington, 237 N.C. 179, 194, 74 S.E.2d 749. This rule is analogous to that which prohibits a nonsuit in a caveat proceeding. In re Will of Redding, 216 N.C. 497, 5 S.E.2d 544."

We held in Shingleton v. State, 260 N.C. 451, 133 S.E.2d 183, that a controversy between an individual and the State as to the extent of an easement granted by the State may be determined in an action brought in the Superior Court pursuant to the provisions of the Declaratory Judgment Act.

It was also held a controversy as to whether the deeds in question created a fee upon special limitation and as to whether title would revert to grantors upon the happening of the contingency, may be maintained under the Declaratory Judgment Act. Charlotte Park & Recreation Commission v. Barringer, 242 N.C. 311, 88 S.E. 2d 114.

We likewise held the right to close an alley at the cul-de-sac end could be determined under the Declaratory Judgment Act. Hine v. Blumenthal, 239 N.C. 537, 80 S.E. 2d 458.

In the case of Carver v. Leatherwood, 230 N.C. 96, 52 S.E.2d 1, it was held that an action to obtain a judicial declaration of plaintiff's right to an easement appurtenant over the lands of defendants is authorized by the Declaratory Judgment Act.

The judgment of nonsuit entered below is set aside. The cause is remanded for a trial de novo and for an adjudication of the respective rights of the parties.

Reversed.

MOORE, J., not sitting.