Woody v. Barnett

79 S.E.2d 789 (1954) 239 N.C. 420

WOODY et al.
v.
BARNETT et al.

No. 745.

Supreme Court of North Carolina.

January 29, 1954.

Fuller, Reade & Fuller, Durham, R. B. Dawes, T. B. Woody, Jr., Roxboro, for petitioners, appellants.

Davis & Davis, Roxboro, for defendants, appellees.

DEVIN, Chief Justice.

This case was here at Fall Term 1951, and is reported in 235 N.C. 73, 68 S.E.2d 810. Only preliminary questions of pleading were considered on that appeal. We have now before us the petitioners' appeal from a judgment rendered which is determinative of the merits of the action.

It is apparent that the rights of the parties with respect to the subject of the action are controlled by the statute now codified as G.S. § 136-67, the material parts of which we quote: "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 State Highway and Public Works Commission, 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 * * * are hereby declared to be neighborhood public roads * * *."

From the evidence offered the court found the facts above set out and thereupon rendered judgment dismissing the action. Jury trial having been expressly waived by the parties, in accord with the established rule, the findings of fact made by the trial judge have the force and effect of a verdict by a jury, and are conclusive on appeal if there be competent evidence to support such findings. St. George v. Hanson, N.C., 78 S.E.2d 885; Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E. 2d 351; Poole v. Gentry, 229 N.C. 266, 49 S.E.2d 464.

The petitioners noted exception to findings of fact numbered 2, 3, 4, 5 and 6 on the ground that they were not supported by the evidence. We have examined the evidence brought up in the record, to which those exceptions point, and are of opinion that none of the exceptions can be sustained. There was evidence sufficient to justify the court in finding the determinative facts set out.

It was contended that the occupants of the dwelling house of petitioner Ralph Ramsey, fronting on the east side of the old road, referred to in the second finding of fact, had no way of access to the new highway, but we think there was evidence that by roads constructed in connection with the new high school access to the highway was available to those occupying that house, and that the old road did not constitute a necessary means of access thereto.

Appellants also contended the court misunderstood the testimony of the School Superintendent as stated in the fifth finding of fact, but it is apparent, in any event, that there was evidence tending to show that the old road was not such as could be used by school buses, and that no effort was ever made to use it for this purpose outside the corporate limits of Roxboro. Other roads were constructed and used connecting the two schools west of the old road. The defendants were not interested in closing the segment of the old road which was within the town limits, but only claimed ownership of the land which reverted to them upon the abandonment by the state of its easement therein for public road purposes.

None of the exceptions noted and brought forward in petitioners' assignments of error can be upheld. The burden was on them to show error. There was no exception to any ruling of court with respect to the admission of testimony. There was no request for additional findings.

We conclude that the court's findings of fact were supported by competent evidence and that they are sufficient to sustain the judgment based thereon. Mosteller v. Southern R. Co., 220 N.C. 275, 17 S.E.2d 133; Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371; Raynor v. Ottoway, 231 N. C. 99, 56 S.E.2d 28.

Judgment affirmed.