Taylor v. Askew

195 S.E.2d 316 (1973) 17 N.C. App. 620

J. T. TAYLOR, Jr., and wife Dora W. Taylor, Petitioners,
v.
Joe ASKEW et al., Respondents.

No. 722SC526.

Court of Appeals of North Carolina.

March 28, 1973.

David S. Henderson, New Bern, for petitioner appellants.

Wilkinson, Vosburgh & Thompson by John A. Wilkinson, Washington, for respondent appellees.

PARKER, Judge.

The statute, G.S. § 136-69, which authorizes in certain cases the condemnation of a cartway for the benefit of one land owner over the lands of his neighbor, is in derogation of the rights of the owner of the land over which the cartway is to be established and must be strictly construed. Brown v. Glass, 229 N.C. 657, 50 S.E.2d 912; Warlick v. Lowman, 104 N.C. 403, 10 S.E. 474. Accordingly, it is well settled that a petitioner is not entitled to condemn a cartway if he presently has reasonable access to a public road, Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890, and this is true even if such reasonable access is permissive. Garris v. Byrd, 229 N.C. 343, 49 S.E.2d 625. "[A] petitioner is not entitled to have a cartway laid out over another's land simply because it would give him a shorter and better outlet to the public road. If he already have a private way, or by parol license an unobstructed way across the land of another, the petition should be denied, and evidence tending to show that the desired cartway would be shorter than the outlet in use should be excluded as immaterial." Warlick v. Lowman, supra.

When the record in the present case is viewed in the light of these well-established principles, the judgment appealed from should be affirmed. The trial court concluded as a matter of law that petitioners had failed to show that they do not have an adequate means of ingress and egress to and from their property. This conclusion supports the judgment dismissing the proceeding and in turn is supported by the court's factual findings made on competent evidence.

G.S. § 156-93.6, enacted in 1961, provides that "[a]ll drainage districts heretofore created shall be deemed to own an easement or right of way in and to those lands upon which there are existing canals and spoil banks," and "[w]henever the proposed repairs, maintenance or other improvement make it necessary for the drainage district to acquire additional land for easements or right of way, the procedure to secure the same shall be in accordance with G.S. § 156-70.1." This latter statute in turn provides in part that "[t]he district shall be deemed to have acquired title for the purpose of easements or rights-of-way to those areas of land identified in the final report of the board of viewers and as shown on the map accompanying said report, at the time said final report is confirmed by the clerk of the superior court." At the hearing, respondents introduced the final report of the board of viewers of the Albemarle Drainage District dated 5 December 1960 and the order confirming said report, and counsel for petitioners conceded that "rights of way were acquired pursuant to the authority of Chapter 156 of the General Statutes." Thus, the trial court's finding that "[t]he Albemarle Drainage District owns a right of way over the South spoil bank of the canal" is fully supported by the record and by applicable statutes. There was also competent evidence to support the trial court's finding that "said right of way is suitable for use as a road subject to the necessity of placing tiles in approximately twenty farm drainage ditches which have been cut through the said spoil bank." An adjoining landowner testified that there is an existing road "suitable for the passage of heavy equipment, such as combines and tractors," running on top of the spoil bank for approximately one mile, and there was competent evidence that the remaining 1.8 miles of the spoil bank could be made suitable for roadway purposes by installation of tile at the intersecting farm drainage ditches.

We do not agree with petitioners' contention that the powers of the Commissioners of the Drainage District were so limited that they lacked authority to grant petitioners permission to use a road over the spoil bank as a means of ingress and egress to and from petitioners' property. The construction and maintenance of such a road would be of obvious benefit to the Drainage District in carrying out its primary functions, by facilitating the repair, maintenance and improvement of its drainage canal. Without attempting to delimit the exact extent of the Commissioners' authority to grant permission to others to utilize the right of way in question as a roadway, we hold that the trial court was correct in concluding that they did have lawful authority to grant petitioners such a right under the circumstances of this case.

Evidence introduced by the parties was in sharp conflict as to the relative costs of constructing a road over the existing spoil bank as compared with the costs of constructing a new cartway to be condemned across respondents' lands. Again, we agree with the trial court that, even if petitioners' evidence in this regard be accepted as true, the conclusion is not thereby compelled that the more expensive road along the spoil bank is not "an adequate means of ingress and egress." Petitioners are not entitled to condemn a cartway across respondents' lands merely because this might prove the least expensive means for obtaining access to their property.

Affirmed.

VAUGHN and GRAHAM, JJ., concur.