State v. . Fisher

23 S.E. 158, 117 N.C. 733

• Court: Supreme Court of North Carolina
• Decided: September 5, 1895
• Status: Published

Opinion

Avery, J.:

As a rule the right to the easement in a public highway is acquired either by dedication, the exercise of the power of eminent domain, or user. Kennedy v. Williams, 87 N. C., 6. After the execution of grants to the easement or the rendition of a final decree in condemnation proceedings, controversies seldom arise as to the existence of the servitude imposed by either of the two methods. Where the public claims title to the easement by user, however, the burden rests upon the State or its agencies, such as towns, as it does upon an individual claiming the right to pond water upon thelan.dof another, to show title by adverse possession. The public, like an individual attempting to establish title under like circumstances, must prove such acts as indicate a continuous and unequivocal assertion of the right by the public for'twenty years, and the best evidence of such user is the fact that the proper authorities have appointed overseers and designated hands to work and assumed for the public the responsibility of keeping the way in repair. Kennedy v. Williams, supra; Frink v. Stewart, 94 N. C., 484; State v. Purify, 86 N. C., 682; State v. McDonald, 8 Jones, 284. The continuous use by the people living in the neighborhood or in the State for a period of even sixty years does not deprive the owner of his right to resume control, nor does it devolve upon the properly constituted authorities of the county or the town, as the case may be, the duty with the incidental expense to the public of its reparation. State v. McDonnel, supra; Boyden v. Achenback, 79 N. C., 539; State v. Johnson, 11 Iredell, 647. In Johnson’s case, supra, Judge PearsoN said that 20 years was “the shortest time that there could have been the presumption of a dedication,” and added in discussing the facts of that case, “Still that has- not been done, and so there has neither been an express user or implied dedication.” A mere verbal license or permission to enter upon the land of another for the purposes of a private way excuses the person entering pursuant to it from liability for a trespass, but is always revokable at the option of the owner who grants it. Railroad v. Railroad, 104 N. C., 658. Where it is the intent of - the parties in case of a mere license “to pass a more prominent and continuing right in the land whereby the authority or estate of the owner could be in the least impaired, it is then not only necessary to be evidenced by writing but would only be made effectual by deed.” McCracken v. McCracken. 88 N. C., 272. The owner of land cannot by executing a deed to the public conveying a right of way to a highway, compel the authorities to assume the burden of repairing it unless the properly constituted agents of the county or town accept it. Kennedy v. Williams, supra. The ordinary but not the only method of signifying such acceptance is by working it in the usual way, as a public street, or the appointment of an overseer and the assignment of bands to work it by the county. Tlie implication that the dedication is accepted may arise from other acts of dominion which show an unequivocal claim by the public to the benefits or the burdens incident to its full and complete enjoyment.

When the defendant opened up the street, then outside of the confines of the city of Greensboro (in the year 1890), if, before the subsequent passage of the Act (Laws of 1891) which extended the limits so as to include it, he had sold a single one of the lots abutting on this apparent extension of North Elm street, he and those claiming under him would have been estopped from denying the right of such purchaser and those in privity with him to use the street, as laid down in the plot and called' for as his boundary line in the deed conveying it to him, to all intents and purposes as a highway, and this dedication of the easement appurtenant to the land sold would have been, as between the parties, irrevocable, though the street had never been accepted by the town for public use. Moose v. Carson, 104 N. C., 431. The estoppel in pais arising out of the fact that the grantee in such cases has been induced to part with money or its equivalent upon the representation of the grantor that a highway would be opened, makes the street as between them what it was represented to be, Grogan v. Town of Haywood, 4 Fed. Rep., 164. The offer of the easement to the public as well as the grant of the appurtenant right to its use as a highway would thus have been made irrevocable, and though the city of Greensboro could not have been, against the wish of its governing officers, subjected to the burden of keeping the open way in repair, yet they might have accepted, as a continuing offer to the city at any future time, the street which as between the parties to the deed the grantor could not deny was dedicated to public use. But there was no such sale and consequent estoppel to prevent the defendant from revoking a license apparently given to the public to use the extension or from recalling the offer. "Whatever might have been the effect of its acceptance at an earlier period the city did not signify in the proper manner its willingness to assume the responsibility of making it a part of the highway under its care, until the alleged offer was revoked.

The jury find as apart of the special verdict, “That in the year 1890 the defendant graded and threw open to the use of the public a way through land owned by him, lying north of and adjoining the corporate limits of the city of Greensboro.” The Attorney General insists that this was a dedication of the street for the use of the city, though not then within its boundaries. The legislature by the Act of 1891, Oh. 300, ratified March 7th, extended the corporate limits of the <5ity so as to include the extension of the street opened by the defendant. On the 4th of September following the mayor and aldermen passed a resolution looking to the condemnation of the way opened by him and thereby instituted the proceeding for that purpose which was quashed on appeal to the Superior Court at August Term, 1893. Under permission granted by the city, while the appeal was pending, a street railway was constructed over the extension of Elm street by the Belt Line Co., but it was not operated after the judgment of the court in 1893. The Attorney General insists that this was an adverse occupancy which in contemplation of law amounted to an acceptance. He contends further that in 1895 the authorities of the city divided it as extended into wards, calling for the extension of Elm street as a boundary and by this recognition of it as a street, accepted it. It was contended by the learned counsel for the defendant that while the public could accept and use the easement acquired by the purchaser of an abutting lot by way of estoppel, a dedication conld not be made directly to the State or to one of its agencies by estoppel but only by grant; and that proof of twenty years adverse user by the public (as was said by PearsoN in Johnson’s case, supra) raised a presumption of dedication by actual grant or of purchase under condemnation proceedings. The defendant insisted in support of this contention that it had never been held in North Carolina that the public, though possession was taken with the assent of the owner, could acquire an easement any more than an individual by the exercise of actual dominion for a less period than twenty years, and that in no case had a defendant been convicted where the charge was predicated upon the existence of a highway, and dedication was shown by user, without actual grant for a less period than twenty years.

It is not necessary to pass upon this cfuestion involving the application of the statute of frauds in disposing of this appeal. If it be conceded that the finding that the defendant threw open the street to the public in 1890 before it became a part of the town, was a dedication of it for the purposes of a public street, we would still be confronted by the significant fact that when the defendant refused in September, 1891, to grant the right of way, the city proceeded to institute condemnation proceedings, and, if he had in any way verbally dedicated or offered the right to the public, it was withdrawn when he subsequently refused to execute the grant, and a controversy arose involving the right of way. It is needless to cite authority to show the right of the land owner to revoke until bound by acceptance or estoppel. "Whatever other differences may exist, that is admitted by all. If the defendant had offered to dedicate and had recalled his offer, the subsequent entry upon the street under a license from the city by the Street Railway Company was in no view an acceptance. There was no error and the judgment is affirmed.

Affirmed.