Nicholas v. Salisbury Hardware and Furniture Co.

103 S.E.2d 837 (1958) 248 N.C. 462

Dan NICHOLAS
v.
SALISBURY HARDWARE AND FURNITURE COMPANY.

No. 523.

Supreme Court of North Carolina.

June 4, 1958.

Hayden Clement and D. A. Rendleman, Salisbury, for plaintiff, appellee.

H. Nelson Woodson, Salisbury, for defendant, appellant.

PARKER, Justice.

The defendant assigns as error the refusal of the trial court to submit to the jury the following issue tendered by it: "Is the property described in the complaint a public alley, as alleged in the answer?" The defendant further assigns as error this part of the charge: "The court holds as a matter of law upon the evidence that the alleyway in controversy is not a public road."

The defendant asserted in its answer that the plaintiff, or his predecessors in title, dedicated this alley to the public at large, and an acceptance of the dedication by the public generally and by the city of Salisbury, which kept up the alley, used it, and paved it.

There is no evidence in the case of any express dedication of the alley to some proper public use, and of a formal acceptance of the alleged dedication. There is no evidence of any sale of land with reference to a map or plat showing this alley. The question we are faced with is whether there is any evidence to sustain the defendant's allegations in its answer of a dedication by the owner, or owners, of the strip of land in controversy as a public alley, and of an acceptance of the dedication.

It is familiar learning that the owner of a strip of land can dedicate it as an alley to the public, and the intention to dedicate may, in a proper case, be inferred from the circumstances without a formal act of dedication. 16 Am.Jur., Dedication, p. 363; Annotation, 58 A.L.R. 240-241.

The intention of the owner to set apart land for the use of the public is the foundation and very life of every dedication. Milliken v. Denny, 141 N.C. 224, 53 S.E. 867, 869. In this case the Court quotes with approval from Washburn on Easements, 3rd Ed., p. 188, as follows: "The acts and declarations of the landowner indicating the intent to dedicate his land to the public use, must be unmistakable in their purpose and decisive in their character to have that effect."

This Court said in Tise v. Whitaker-Harvey Co., 146 N.C. 374, 59 S.E. 1012, 1013: "It is well understood with us that the right to a public way cannot be acquired by adverse user and by that alone, for any period short of 20 years. It is also established that, if there is a dedication by the owner, completed by acceptance on the part of the public, or by persons in a position to act for them, the right at once arises, and the time of user is no longer material. The dedication may be either in express terms, or it may be implied from conduct on the part of the owner, and while an intent to dedicate on the part of the owner is usually required, it is also held that the conduct of the owner may, under certain circumstances, work a dedication of a right of way, on his part, though an actual intent to dedicate may not exist. These principles are very generally recognized and have been applied with us in numerous and well considered decisions."

The case of Summerville v. Duke Power Co., 4 Cir., 115 F.2d 440, 441, was an action to recover damages for the closing of a street or alley in the city of Charlotte, North Carolina. The Court said: "It is clear that there was no dedication by the owner of the strip of land in controversy as a public street or alley. The mere fact that it was used by the occupants of the houses on the property as a means of ingress or egress has no tendency to establish such dedication, nor does the fact that its use by the public was permitted."

"The owner's intention to dedicate some particularly described land to a public use must be clear. It may be manifested by his affirmative acts whereby the public use is invited and his subsequent acquiescence in such use, by his express assent to, or deliberate allowance of, the use, or merely by his acquiescence therein. * * * In order to establish a dedication, the acts and declarations of the owner must not be inconsistent with any dedication." 16 Am. Jur., Dedication, Sec. 20.

From the authorities which we have cited it seems clear that no owner of this strip of land, which is the subject of this action, has done anything from which a clear intent, unmistakable in purpose, to dedicate this strip of land to the public can be drawn or inferred. The fact that P. S. Carlton, the Receiver, in 1936 acting under an order of the court, sold and conveyed this strip of land to plaintiff, and stated in the deed that it was "subject, however, to the easements or rights of way for the purpose of ingress, egress and regress in, to, upon or over said lot heretofore conveyed by F. R. Brown, or Brown Insurance & Realty Company, or P. S. Carlton, Receiver, to Post Publishing Company of (sic) James M. Davis and wife, Rebecca Davis, or others, as will appear by reference to the deeds, conveyances or written contracts heretofore made," is inconsistent with any dedication to the public of this strip of land, while it was in his possession as Receiver. It would also seem from this statement in the deed that F. R. Brown and Brown Insurance & Realty Company also granted easements of ingress and egress over this strip of land, which is inconsistent with any dedication to the public of this strip of land by him or the corporation. W. F. Snider and wife conveyed a lot embracing this strip of land to F. R. Brown, who, in turn, conveyed it to Brown Insurance & Realty Company. There is no evidence from which it can be inferred that the Sniders dedicated this strip of land to the public. The mere fact that plaintiff permitted the public, in company with others having an easement, to use this strip of land, has no tendency to establish a dedication by plaintiff. The fact that plaintiff has paid taxes to the city and county on this strip of land since 1936 tends to negative any alleged intent on his part to dedicate it to the public. Annotation, L.R.A.1916B, p. 1175 et seq. The fact that the city of Salisbury sued plaintiff for ad valorem taxes on this strip of land, and collected them, and is still collecting taxes from plaintiff on it, tends to show there has been no dedication and acceptance. Lee v. Walker, 234 N.C. 687, 68 S.E.2d 664; 16 Am.Jur., Dedication, Sec. 80; Annotation, L.R.A.1916B, p. 1175 et seq. When the city received a letter from plaintiff in 1952 requesting it not to use this strip of land, except for the police and fire departments, the fact that it immediately stopped using it tends to show no dedication and acceptance. This stoppage of use of this alley by the city, and its suit for taxes on this alley tends to show a permissive use of the alley by the city, and not a use by a claim of right by reason of a dedication and acceptance. The alley was paved by the Hedrick Paving Company, but there is no evidence as to who had it done, or who paid for the paving. The fact that J. H. Weant for the city worked the alley so trucks could get in and out, under all the facts here, is not sufficient to permit an inference that there has been a dedication and acceptance of this alley.

Dedication is an exceptional and peculiar mode of passing title to an interest in land. The Supreme Court of California in City and County of San Francisco v. Grote, 120 Cal. 59, 52 P. 127, 128, 41 L.R.A. 335, 65 Am.St.Rep. 155, said: "It is not a trivial thing to take another's land, and for this reason the courts will not lightly declare a dedication to public use."

The assignments of error as to the court's holding as a matter of law upon the evidence that the alley is not a public alley, and to its refusal to submit an issue in respect thereto, are overruled.

Defendant assigns as error the part of the charge to the jury in which the court stated it held as a matter of law upon the evidence in the case that the defendant has no easement in the alley, and further assigns as error the refusal of the court to submit this issue timely tendered: "Is the defendant the owner of an easement over the property described in plaintiff's complaint, as alleged in the answer?"

Defendant claiming a right of way by prescription over the strip of land which is the subject of controversy, has the burden of proving all the elements essential to its acquisition. Williams v. Foreman, 238 N.C. 301, 77 S.E.2d 499; McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Perry v. White, 185 N.C. 79, 116 S.E. 84.

Defendant must show, among other things, not only that it used a way over this land continuously and uninterrupted for twenty years, but also that such use was adverse or under a claim of right. Williams v. Foreman, supra; Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906; Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153; Tise v. Whitaker-Harvey Co., supra.

A mere permissive use of a way over another's land, no matter how long continued, cannot ripen into an easement by prescription. Williams v. Foreman, supra; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2. "Permissive use is presumed until the contrary is made to appear." Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371, 374.

Defendant's evidence tends to show that it, its employees, and customers have been using this alley every day since 1924 up to the present, except a short time when a sewer line was laid. Plaintiff in his complaint alleges upon information and belief "that the defendant claims an estate or interest in said land adverse to the plaintiff, and that said alleged claim of the defendant is based upon an easement for the purpose of ingress and egress over said lands." Plaintiff, on cross-examination, said he alleged the above in his complaint. It would seem that plaintiff has alleged that the defendant is claiming an easement in this alley under a claim existing in its favor independent of all others. Stanley v. Mullins, 187 Va. 193, 45 S.E.2d 881.

Plaintiff contends that if there has been any adverse use of this alley by defendant, it has not been a continuous adverse use for 20 years, for the reason that the appointment of the Receiver in 1926 stopped the running of any adverse use by the defendant.

It is well recognized law in this jurisdiction from the earliest times that when the Statute of Limitations has begun to run, no subsequent disability will stop it. Pearce v. House, 4 N.C. 722; Mebane v. Patrick, 46 N.C. 23; Chancey v. Powell, 103 N.C. 159, 9 S.E. 298; Copeland v. Collins, 122 N.C. 619, 30 S.E. 315; Cameron v. Hicks, 141 N.C. 21, 53 S.E. 728, 7 L.R.A., N.S., 407; Holmes v. Carr, 172 N.C. 213, 90 S.E. 152; Caskey v. West, 210 N.C. 240, 186 S.E. 324; Battle v. Battle, 235 N.C. 499, 70 S.E.2d 492.

Ordinarily, the mere appointment of a receiver will not suspend the running of the Statute of Limitations, but the Statute of Limitations may be tolled where the circumstances are such that his appointment in effect precludes the bringing of suit. 54 C.J.S. Limitation of Actions § 249 (c); 34 Am.Jur., Limitations of Actions, Sec. 249. See Annotation, 21 A.L.R. 961, where it is stated, with cases cited, that "as a general rule, the mere appointment of a receiver will not suspend the running of the Statute of Limitations against an action on a debt due from the insolvent."

In O'Connell v. Chicago Park District, 376 Ill. 550, 34 N.E.2d 836, 840, 135 A.L.R. 698, it was held that the possessions of successive adverse holders of chattels may be tacked in determining the period of limitations. The Supreme Court of Illinois had this to say as to the effect of the appointment of a receiver on the running of the Statute of Limitations: "The cause of action having once accrued, the statute began to run at once, because the possession was wrongful from the outset, and no subsequent demand and refusal could start it afresh. Watkins v. Madison County Trust & Deposit Co. supra. The appointment of a receiver did not stop its running. Houston Oil Co. of Texas v. Brown, Tex.Civ. App., 202 S.W. 102, certiorari denied 250 U.S. 659, 40 S.Ct. 9, 64 L.Ed. 1194; 4 Cook on Corporations, 7th Ed., p. 3367, § 871. The statute runs against the right of action, not against the holder thereof. Hooker v. East Riverside Irrigation District, 38 Cal. App. 615, 177 P. 184." See also 2 C.J.S. Adverse Possession § 155, p. 730.

P. S. Carlton, Receiver of Brown Insurance & Realty Company had express statutory authority, G.S. § 55-148, to "demand, sue for, collect, receive and take into his possession all the goods and chattels, rights and credits, moneys and effects, lands and tenements, books, papers, choses in action, bills, notes, and property of every description of the corporation" of which he was Receiver. This statute is now codified as G.S. § 1-507.2.

The defendant's evidence tends to show its adverse use of this strip of land since 1924. At that time a cause of action accrued in behalf of the owner of this strip of land by reason of such adverse use. Brown Insurance & Realty Company became the owner of this strip of land on 9 September 1924, and owned it when it went into receivership in 1926. The cause of action by reason of such adverse use by the defendant having accrued in behalf of Brown Insurance & Realty Company before the appointment of its Receiver, the appointment of its Receiver did not stop the running of such adverse use.

After a careful examination of the evidence, we think that the question of whether the defendant has acquired a right of way over this strip of land by prescription should be determined by a jury. The defendant on that question is awarded a

New Trial.

JOHNSON, Justice (concurring in part and dissenting in part).

I concur in the conclusion that the evidence justifies a jury trial on the issue of prescription. Also, I am of the opinion that the evidence is sufficient to carry the case to the jury on the issue of dedication.

RODMAN, Justice (dissenting).

The law with respect to the acquisition of an easement by adverse user is clearly and concisely stated in Henry v. Farlow, 238 N.C. 542, 78 S.E.2d 244. As there shown by copious citations, user alone is not sufficient; the owner must be put on notice of the adverse character of the use.

The language of Clarkson, J., in Atlantic Coast Line R. Co. v. Town of Ahoskie, 202 N.C. 585, 163 S.E. 565, 568, is, I think, appropriate to the facts shown by this record. He said: "Neighborly conduct either on the part of a person or corporation ought not be so construed as to take their property, unless it has such probative force as to show adverse user for twenty years. Much of defendant's evidence is in the nature of omissions by plaintiff railroad company in not being unneighborly and chasing trespassers off its property. The fact that this was not done cannot be held for acquiescence or adverse user on the part of defendants. This goes too far, and we cannot agree to this * * *"

The evidence as summarized in the opinion of the majority is plenary to show use of the alley by defendant and any others who desire to use, but nowhere have I been able to discern any evidence tending to show that defendant's user was different in character from that of the other citizens of Salisbury. The only difference that I have been able to discover is that the defendant probably used the alley more frequently than the other witnesses it produced to testify to the fact of user. To my mind this evidence negatives the idea of adverse possession even more than it negatives the idea of dedication; but, if adverse, did not the permissive use by others interrupt defendant's possession and prevent it from acquiring by adverse possession? G.S. § 1-40.

It does not seem to me that the complaint which alleges a shadow presently cast on plaintiff's title can be interpreted as indicating the cloud has been in existence for more than twenty years. My vote is to affirm.

BOBBITT, J., concurs in dissent.