City of Durham v. Wright

130 S.E. 161, 190 N.C. 568, 1925 N.C. LEXIS 124

• Court: Supreme Court of North Carolina
• Decided: November 25, 1925
• Status: Published

Opinion

ClaeKSON, J.

-The city of Durham claims to own the locus in quo■ — • a strip of land 34.4 feet in length and 35 inches (nearly 3 feet) in width, between the projections (or pilasters) of the sidewalks of the building. It has never paid any “just compensation” for it, but claims it (1) by dedication, (2) by prescription, (3) under statutory dedication or authority. We do not think the position of the city can be sustained.

In Shute v. Monroe, 187 N. C., p. 683, it was said: “The Anglo-Saxon holds no material thing dearer than the ownership of the land; his home is termed his ‘castle.’ Although there is nothing in the Constitution of North Carolina that expressly prohibits the taking of private property for public use without compensation (the clause in the United States Constitution to that effect applies only to act by the United States and not to government of tbe State), yet tbe principle is so grounded in natural equity and justice tbat it is a part of tbe fundamental law of tbis State tbat private property cannot be taken for public use without just compensation. Johnston v. Rankin, 70 N. C., 555.” Wade v. Highway Commission, 188 N. C., 210; Stamey v. Burnsville, 189 N. C., 39; Finger v. Spinning Co., ante, 74.

Hoke, J., in Tise v. Whitaker, 146 N. C., p. 375, lays down tbe rule long recognized in tbis State: “It is well understood witb us tbat tbe right to a public way cannot be acquired by adverse user, and by tbat alone, for any period short of twenty years. It is also established tbat, if there is a dedication by tbe owner, completed by acceptance on tbe part 'of tbe public, or by any persons in a position to act for them, tbe right at once arises, and tbe time of user is no longer material. Tbe dedication may be either in express terms, or it may be implied from conduct on tbe part of tbe owner; and, while an intent to dedicate on tbe part of tbe owner is usually required, it is also held tbat tbe conduct of tbe owner may, under certain circumstances, work a dedication of a right of way on bis part, though an actual intent to dedicate may not exist. These principles are very generally recognized and have been applied witb us in numerous and well considered decisions,” and cases cited. Draper v. Conner, 187 N. C., 18, and cases cited; 18 C. J., pp. 40, 41 and 51.

It is, we think, sufficiently clear from tbe findings of fact tbat neither tbe defendant, nor bis predecessor in title, ever intended to dedicate tbe strip of land to tbe public for use as a sidewalk, and tbe projections (pilasters) of tbe east and west walls of tbe building were made and erected for tbe purpose of marking tbe boundaries of tbe lot, and were notice to tbe world tbat tbe strip of land connecting them was a part of tbe lot upon which tbe projections were erected, thus negativing a dedication.

Tbe land under tbe locus in quo was admittedly used as a basement by defendant and those under whom be claimed. Tbe fact tbat tbe public crossed tbe locus in quo to get to tbe place of business, go into tbe stores, or went around tbe pilasters and got on tbe locus in quo as they walked along tbe street, was only permissive. At all time tbe pilasters stood there marking tbe corners of tbe lot. Tbe facts show tbat there was no adverse user by tbe city and no dedication by tbe owners. Plaintiff further contends tbat there was a statutory dedication and cites tbe charter of tbe city of Durham, chap. 142, sec. 66, Private Laws 1921, and chap. 235, sec. 60, Private Laws 1899, ratified 6 March, 1899, which is as follows: “Tbat in tbe absence of any contract or contracts witb said city in relation to tbe lands used or occupied by it for tbe purpose of streets, sidewalks, alleys or’other public works of said city, signed by the owner thereof, or his agent, it shall be presumed that the said land has been granted to said city by the owner or owners thereof, and said city shall have good right and title thereto, and shall have, hold and enjoy the same as long as the same shall be used for the purpose of the said city, and no longer. Unless the owner or owners of said land, or those claiming under them shall, at the time of the occupation of the said land, as aforesaid, apply for an assessment of said land, as provided for in the charter of said city, within two years next after said land was taken, he or they shall be forever barred from recovering said land, or having any assessment or compensation therefor; Provided, nothing herein contained shall effect (affect) the rights of feme coverts or infants until two years after the removal of their respective disabilities.” There is a slight difference between the two acts, but not material.

The record shows that none of those who claim the locus in quo have been under disabilities since 6 March, 1899. From a careful anlaysis of this section, it will be seen before this statute is applicable that the locus in quo must be used or occupied for the purpose of a street, and the land was talcen. In other words, from a construction of the entire statute, there must be an adverse user before the city can acquire title. Black’s Law Dictionary, 2 ed., p. 846, defines “occupation”: “In its usual sense 'occupation’ is where a person exercises physical control'over land. Thus, the lessee of a house is in occupation of it so long as he has the power of entering into and staying there at pleasure, and of excluding all other persons (or all except one or more specified persons) for the use of it. Occupation is therefore the same thing as actual possession. Sweet. The word 'occupation’ applied to real property, is, ordinarily, equivalent to 'possession.’ In connection with other expressions, it may mean that the party should be living upon the premises; but, standing alone, it is satisfied by actual possession. Lawrence v. Fulton, 19 Cal., 683.” Occupied indicates pedis possessio. Black, supra,, p. 1134, defines “take”: “To lay hold of; to gain or receive into possession; to seize; to deprive one of possession of; to assume ownership. Thus, it is a constitutional provision that a man’s property shall not be taken for public uses without just compensation. Evansville & C. R. Co. v. Dick, 9 Ind., 433.”

Plaintiff contends further: “In addition to a statutory dedication in this case, there was a dedication by prescription.” In 9 R. C. L., p. 772, it is laid down: “To establish an easement by prescription there must be, first, continued and uninterrupted use or enjoyment; second, identity of the thing enjoyed; third, a claim of right adverse to the owner of the soil, known to and acquiesced in by him.” Draper v. Conner, supra; 19 C. J., p. 873, et seq. The facts show no prescriptive right. There was no grant, dedication, prescription or statutory authority of the easement.

Ill the present case it is admitted that nothing has been paid for the locus in quo by the city of Durham. The municipality claims that it has a right to the land for street purposes, by dedication, prescription and statutory authority. We think the entire evidence shows that defendant and those from whom he claimed always exercised control and dominion over it and never dedicated it to the city, nor does the evidence show any prescriptive right. The “pilasters” were landmarks of ownership. The going in and out of the store over the locus in quo was permissive and the public going around the “pilasters” and over the locus in quo in no way gave the city an easement. There is no evidence from the findings that give a right to plaintiff to have an easement over this land for street purposes either by dedication, prescription or statutory authority. The statutory authority was never complied with, it neither occupied nor was the land taken by the city. The city desires the land for street purposes, and just compensation must be given the owner. The law gives the machinery. A jury assesses its value.

For the reasons given, we find

No error.