Williams v. Foreman

Supreme Court of North Carolina

Williams v. Foreman

77 S.E.2d 499, 238 N.C. 301, 1953 N.C. LEXIS 730

CourtSupreme Court of North Carolina

DecidedSeptember 30, 1953

Docket21

StatusPublished

Cited by11 cases

This text of 77 S.E.2d 499 (Williams v. Foreman) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Williams v. Foreman, 77 S.E.2d 499, 238 N.C. 301, 1953 N.C. LEXIS 730 (N.C. 1953).

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Opinion

Ervin, J.

The only assignment of error requiring discussion is that based upon the entry of the compulsory nonsuit.

The party claiming a right of way by prescription has the burden of proving the several elements essential to its acquisition. McCracken v. Clark, 235 N.C. 186, 69 S.E. 2d 184; Speight v. Anderson, 226 N.C. 492, 39 S.E. 2d 371; Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906; McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Perry v. White, 185 N.C. 79, 116 S.E. 84.

Thus he must show, among other things, not only that a way over another’s land was used for the requisite period, but also that such use was adverse or under a claim of right. Darr v. Aluminum Co., 215 N.C. 768, 3 S.E. 2d 434; Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246; Grant v. Power Co., 196 N.C. 617, 146 S.E. 531; Perry v. White, supra; Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Boyden v. Achenbach, 86 N.C. *303 397; Ray v. Lipscomb, 48 N.C. 185; Smith v. Bennett, 46 N.C. 372; Mebane v. Patrick, 46 N.C. 23. A mere permissive use of a way over another’s land, however long it may be continued, cannot ripen into an easement by prescription. Colvin v. Power Co., 199 N.C. 353, 154 S.E. 678; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2; Perry v. White, supra; S. v. Norris, 174 N.C. 808, 93 S.E. 950; Snowden v. Bell, supra; Boyden v. Achenbach, supra; Ingraham v. Hough, 46 N.C. 39.

The evidence of the plaintiffs does not indicate that they and their predecessors in title used the roadway over the land of the defendants adversely or under a claim or right. Indeed, it engenders the conclusion that the use of the roadway was by permission of the owners of the soil. This being true, the evidence is insufficient to establish a right of way by prescription, and the compulsory nonsuit must be upheld. Weaver v. Pitts, supra.

Affirmed.

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Ervin, J.

The only assignment of error requiring discussion is that based upon the entry of the compulsory nonsuit.

The party claiming a right of way by prescription has the burden of proving the several elements essential to its acquisition. McCracken v. Clark, 235 N.C. 186, 69 S.E. 2d 184; Speight v. Anderson, 226 N.C. 492, 39 S.E. 2d 371; Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906; McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Perry v. White, 185 N.C. 79, 116 S.E. 84.

Thus he must show, among other things, not only that a way over another’s land was used for the requisite period, but also that such use was adverse or under a claim of right. Darr v. Aluminum Co., 215 N.C. 768, 3 S.E. 2d 434; Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246; Grant v. Power Co., 196 N.C. 617, 146 S.E. 531; Perry v. White, supra; Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Boyden v. Achenbach, 86 N.C. *303 397; Ray v. Lipscomb, 48 N.C. 185; Smith v. Bennett, 46 N.C. 372; Mebane v. Patrick, 46 N.C. 23. A mere permissive use of a way over another’s land, however long it may be continued, cannot ripen into an easement by prescription. Colvin v. Power Co., 199 N.C. 353, 154 S.E. 678; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2; Perry v. White, supra; S. v. Norris, 174 N.C. 808, 93 S.E. 950; Snowden v. Bell, supra; Boyden v. Achenbach, supra; Ingraham v. Hough, 46 N.C. 39.

The evidence of the plaintiffs does not indicate that they and their predecessors in title used the roadway over the land of the defendants adversely or under a claim or right. Indeed, it engenders the conclusion that the use of the roadway was by permission of the owners of the soil. This being true, the evidence is insufficient to establish a right of way by prescription, and the compulsory nonsuit must be upheld. Weaver v. Pitts, supra.

Affirmed.

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77 S.E.2d 499, 238 N.C. 301, 1953 N.C. LEXIS 730, Counsel Stack Legal Research, https://law.counselstack.com/opinion/williams-v-foreman-nc-1953.

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