Scott v. Shackelford , 241 N.C. 738 ( 1955 )

86 S.E.2d 453 (1955) 241 N.C. 738

Johnnie L. SCOTT
v.
Reuben C. SHACKELFORD and wife, Helen Shackelford.

No. 27.

Supreme Court of North Carolina.

March 30, 1955.

Jennette & Pearson, by J. W. Jennette, Elizabeth City, for plaintiff-appellee.

LeRoy & Goodwin, by J. C. Goodwin, Elizabeth City, for defendants-appellants.

HIGGINS, Justice.

The defendants' evidence has not been summarized and need not be considered in the determination of the questions presented by this appeal. The motions for nonsuit and to set aside the findings of fact and reverse the conclusions of law on the ground the findings are not supported by the evidence, lead us to inquire whether there is competent evidence in the record to support, not necessarily all the findings, but sufficient of them to warrant the conclusion that the street or alley is a public way. If such evidence appears in the record, we are bound by the findings and the judgment must be affirmed.

Under the early decisions of this Court the problem here presented would be easy to solve. In early times, when the country was thinly populated, when lands were of relatively little value, when public funds for road and street construction and maintenance were simply not available, when proceedings, records, and plats showing the authorization and location of streets and highways were ineptly drawn,—sometimes recorded and sometimes not—when the method of keeping and preserving records consisted in placing longhand papers in pigeonholes in some wooden cabinet, stored away in a wooden courthouse or town meetinghouse, it was both practical and sensible for the Court to hold as it did in State v. Marble, 26 N.C. 318, "When a road has been used by the public as a public road for 20 years and there is no evidence as to how this user commenced, a presumption in law arises that the road has been, by due course of law, and by the proper tribunal laid off and established as a public road or highway." Likewise, in State v. Cardwell, 44 N.C. 245, this Court said: "Furthermore, the use of a road as a public highway for twenty years will authorize a jury to presume its dedication to that purpose." Woolard v. McCullough, 23 N.C. 432; Tarkington v. McRea, 47 N.C. 47, 48; Askew v. Wynne, 52 N.C. 22; Tise v. Whitaker-Harvey Co., 146 N.C. 374, 59 S.E. 1012.

By admission of counsel for the defendants as recited in Judge Grady's finding of fact, the lane or alley in question is a part of a fifty-acre tract of land described in the Act of Assembly of North Carolina, Chapter XVI, Volume 25, Public Laws 1789-1790, and reported in Volume XXV, State Records of North Carolina, the pertinent parts of which are as follows:

"An Act For Establishing A Town On The Lands Formerly Belonging To Zachariah Nixon, Lying On The North East Side Of Little River, In Pasquotank County.

"I. Whereas, it hath been represented to the Assembly, that in the year of our Lord one thousand seven hundred and forty-six, one hundred and sixty-one and a half acres of land were purchased for a town and commons, fifty acres of which hath been laid out in half acre lots, with convenient streets; that there are now upwards of twenty habitable houses erected thereon, and upwards of seventy inhabitants; and the same might soon be improved, if it was erected into a town by lawful authority.

"II. Be it therefore enacted, by the Governor, Council, and Assembly, and by the authority of the same, That the said one hundred and sixty-one and a half acres of land, be, and the same is hereby constituted, erected and established a town, and a town commons, and shall be called by the name of Nixon's town."

It is of significance the Act recites fifty acres "hath been laid out in one-half-acre lots with convenient streets." According to history, Nixonton, or Nixontown, was the county seat of Pasquotank County from 1785-1800. At the time of the Act of Assembly above referred to, the town was the county seat and the fifty acres seems to have been the settled or built up part of the town. The title to the Act states the lands lie on the North East side of Little River. The record indicates Little River is a navigable stream, so that in 1789-1790, it is not difficult to understand why streets leading to the river would be of importance, for the navigable rivers of that section in that day were the highways of the time. It is of significance also, the plaintiff's lot comprises one-half acre, and in the record of all conveyances connecting his title with Timothy Morgan in 1856, the description is always the same—one-half acre. The plaintiff does not attempt to carry his title beyond 1856. In every conveyance from that date the eastern boundary of his one-half acre lot is given as the lane or alley from Main Street to Little River.

Soon after the Act of Assembly in 1789-1790, the county seat was moved from Nixonton to Elizabeth City. After Nixonton ceased to be the county seat in 1800, it is not unreasonable to conclude the growth of the town was over and there no longer existed reasons for laying out streets. Likewise, it is not unreasonable to conclude such streets as were laid out in that remote and hazy past are traceable to that time of promise and growth—while it was the county seat. No reason appears why a new street or alleyway should be laid out between 1800 and 1856, in which year the map shows the street in question.

The map recorded in Division Record Book B, page 153, shows Main, or Elm Street, and the alley or lane connecting that street with Little River. Further west, another street is shown to intersect Main or Elm Street at exactly the same angle as the alley in question and this street also runs exactly parallel to the alley or street here in question from Main Street to Little River. The map is attached to the judgment and is a part of the record on appeal.

The plaintiff offered evidence of witnesses who had known the property for a period going back as far as 61 years. The substance of the testimony is that during all the time the witnesses had known the property, the lane was used as a public street and it had the general reputation of being a public road. At one time the post office was located on this alley and, further towards the river, there was a blacksmith shop; that the alley was used by the public as a means of access to the river. One of defendants' witnesses testified that part of the street or alley was used as a star mail route; that it was fenced on both sides. He had been familiar with it for more than 60 years.

There can be no doubt but that under the old decisions of this Court the evidence of the use of the alley by the public for the time shown by the plaintiff's evidence would be amply sufficient to sustain the findings and judgment in this case. Under the later decisions, we think the facts offered, though somewhat inconclusive as proof of acceptance, constitute some evidence and as such will support Judge Grady's findings.

However, as the State and the towns developed, and larger and larger sums of money became available for highways and streets, they were surveyed with mathematical exactness. They were authorized by carefully prepared proceedings. Records of surveys and plans showing the exact location were made and were available at every courthouse and town hall. The authority for the location and construction can be ascertained without difficulty. As a consequence, the recent decisions of this Court are in harmony with and recognize the change in conditions. In an opinion by Barnhill, J., now C. J., in the case of Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906, 908, the Court clearly states the modern view: "According to the current of decisions in this court there can be in this State no public road or highway unless it be one either established by public authorities in a proper proceeding regularly instituted before the proper tribunal; or one generally used by the public and over which the proper authorities have asserted control for the period of twenty years or more; or one dedicated to the public by the owner of the soil with the sanction of the authorities and for the maintenance and operation of which they are responsible." (Emphasis added.)

Long after the time the alley in question here had been in use according to the plaintiff's evidence, maintenance of streets and highways generally consisted of the draining or filling up of mudholes, often by the owner of the adjacent property. Then, the use alone was sufficient to establish the right. Then, no provision or facilities were provided for maintenance. Now, it is not enough for the public to use the streets, highways or alleys for twenty years. The public authorities must assert control over them.

If the street or alley in question here was accepted by the Assembly in 1789-1790, as seems probable, it became a public way and its use as such is shown by the map recorded 99 years ago. It has been recognized in all the deeds constituting plaintiff's chain of title. It has been used by the public and has borne the general reputation of being a public way for 61 years.

When once accepted, the acceptance cannot be withdrawn or the character of a public street destroyed, except by abandonment or by adverse user for a period or 20 years. The doctrine of abandonment and adverse user is fully discussed in an opinion by Denny, J., in the case of Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664.

The defendants have a deed for the Shackelford lot which includes in the description of the property conveyed, the alley in question. This deed was executed to them in 1951. From a review of the record, we conclude there was sufficient evidence to warrant Judge Grady in finding the street or alley as shown by the map is a public street which the defendants have shown no right to obstruct.

The judgment of the Superior Court of Pasquotank County is

Affirmed.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.