Taylor v. WEST VIRGINIA PULP & PAPER COMPANY

Shaep, J. The assignments of error properly made raise only this dual question: Are the judge’s findings of fact supported by the evidence and, if so, do they support the judgment? *456 As one taking action preparatory to cutting and removing standing timber from his land, petitioner is entitled to condemn a cartway over respondent’s property, provided (1) there is no public road or other adequate means of transportation affording him necessary and proper access to his own property, and (2) he satisfies the court that it is necessary, reasonable and just that he have such a private way. G.S. 136-69. Respondent’s evidence that ten years ago logs were transported over the sixty-foot easement to Mill Tail Creek and rafted down it to Alligator River is sufficient to sustain his Plonor’s finding of fact that Mill Tail Creek is a navigable stream. “If a stream is ‘navigable in fact ... it is navigable in law.’ Gould on Waters, (3 Ed.), sec. 67. The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test and not the extent and manner of such use.” State v. Twiford, 136 N.C. 603, 48 S.E. 586; accord, State v. Baum, 128 N.C. 600, 38 S.E. 900; Swan Island Club, Inc. v. White, 114 F. Supp. 95 (E.D.N.C.), aff’d sub nom. Swan Island Club, Inc. v. Yarbrough, 209 F. 2d 698 (4th Cir.). There is no evidence in the record to suggest that Mill Tail Creek is not still navigable. Therefore, it appears that petitioner does, in fact, have access to his lands albeit by water. If such access affords adequate and proper means of ingress and egress he is not entitled to another and different way by land even though it would prove more convenient and economical. Pritchard v. Scott, 254 N.C. 277, 118 S.E. 2d 890; Kanupp v. Land, 248 N.C. 203, 102 S.E. 2d 779; Warlick v. Lowman, 104 N.C. 403, 10 S.E. 474; Plimmons v. Frisby, 60 N.C. 200. Petitioner argues that the “facts epitomize the necessity, reasonableness, and justice of a cartway from petitioner’s land to and over respondent’s existing road (Mill Tail Road) to the public road,” and that the court erred in not so finding. We hold otherwise. Even a petitioner qualifying under G.S. 136-69 for a private way over the lands of another is not entitled to select his route or to use existing private roads on a respondent’s land as a matter of right, however expedient and economical their use would be to him. The location of the way is the task of a jury of view, but its acts are reviewable by the court. Candler v. Sluder, 259 N.C. 62, 130 S.E. 2d 1; Garris v. Byrd, 229 N.C. 343, 49 S.E. 2d 625. Mill Tail Road, over which petitioner seeks to acquire an easement, has been constructed and is maintained by respondent at great cost. Its use by petitioner as a logging road would increase both maintenance and supervision costs for respondent and, once established as a cartway for petitioner’s use, it would also become a quasi-public road. Parsons v. Wright, 223 N.C. 520, 27 S.E. 2d 534. *457 If the Pulp and Paper Company had constructed no roads whatever on its property and Taylor required a road across it, he would perforce have to construct his own road. Unless the only avenue over a respondent’s land reasonably adequate for access to a petitioner’s property happened to be a road already constructed by the respondent, a petitioner entitled to a cartway would have no right, as a matter of law, to the use of that particular road. Otherwise, a petitioner is in no more favored a position because a respondent has constructed a road across his property than he would be if no such road existed. G.S. 136-68 and G.S. 136-69 are in derogation of the rights of private property and must be strictly construed. Brown v. Glass, 229 N.C. 657, 50 S.E. 2d 912. The judge who heard the evidence upon the parties’ waiver of a jury trial has found that Taylor has adequate means of access for the removal of his timber by the sixty-foot right of way appurtenant to his tract and by Mill Tail Creek. A navigable stream is a public highway. Gaither v. Hospital, 235 N.C. 431, 70 S.E. 2d 680; Cromartie v. Stone, 194 N.C. 663, 140 S.E. 612. Certainly, access to a navigable stream would not in every instance afford an adequate outlet for the purposes enumerated in G.S. 136-69 and thus preclude relief under it. Here, however, the judge has found that it does. He has also found that respondent’s offer to petitioner of an easement to either Highway 64 or Highway 264 over its lands, other than by its private roads, provides for petitioner another adequate and proper means of ingress and egress for the removal of his timber. An adequate permissive way meets the requirements of G.S. 136-69. Garris v. Byrd, supra. The court’s ruling that petitioner has failed to establish that it is necessary, reasonable, and just that he have a cartway over the lands of respondent necessarily followed its finding that the petitioner already has an adequate way or ways. The court’s findings are supported by competent evidence and are therefore as conclusive as the verdict of a jury. Petitioner simply failed to carry his burden of proof to the satisfaction of the judge below, and both he and we are bound by the judge’s findings. In re Annexation Ordinances, 253 N.C. 637, 117 S.E. 2d 795. In the trial below we find No error.