Colvin v. Tallassee Power Co.

ClaeksoN, J. At the close of plaintiffs’ evidence and at the close of all the evidence defendant made motions for judgment as in case of nonsuit. C. S., 567. The court below overruled the motions, and in this we can see no error. The questions involved: First, Was the obstruction and flooding by the defendant of the roads which gave plaintiffs ingress and egress to their land wrongful? We think so. It is admitted by defendant that prior to 1910, and up to 5 December, 1927, there was a public road, known as the Santeetlah Eoad, which led into the old State Turnpike Eoad at Stump Ford, which traversed Graham County by Eobbinsville. As to the road up Watauga (Wa-toogah) Branch which plaintiffs used to travel from their home to the Santeetlah Eoad, thence to the Turnpike, the main public highway, plaintiffs claimed an easement by adverse user, which defendant disputed. These two roads were flooded by defendant up to within 400 yards of plaintiffs’ home and prevented plaintiffs ingress and egress over them to the main public highway. A legal question arises as to the closing of the Santeetlah Eoad. Defendant claimed that they had a contract with the commissioners of Graham County and the road commissioners of certain townships whereby this public road that existed up to this time, under certain conditions, would be abandoned and flooded. The agreement was made 2 February, 1920. We need not discuss'this agreement on the minutes of the board of county commissioners of Graham County, as the record discloses that the road in controversy was in Yellow Creek Township. We find in Public-Local Laws, 1919, ch. 197, part sec. 5, the following : “Said highway commission shall have the same supervision, powers and rights in respect to all public roads and bridges in Yellow Creek Township as has heretofore been vested in the board of county commissioners of Graham County,” etc. The record evidence discloses that there was no legal meeting of the highway commission of Yellow Creek Township to discontinue this road. O’Neal v. Wake County, 196 N. C., 184. Of course it goes without saying that if there had been a legal meeting the discontinuance of the road had to be governed by the law in such'cases. In the minutes *358 of tbe board of commissioners of Grabara County, held years after 5 December, 1927, we find the following, which recognized the power in the highway commission of Yellow Creek Township: “Whereas, since the passage of the above resolutions and orders (2 February, 1920) the highway commission of Yellow Creek Township has been abolished and its authority vested in the board of county commissioners of Graham County, which takes the -place of and has all the authority heretofore conferred upon the highway commission of Yellow Creek Township.” On 5 December, 1927, the board of county commissioners of Graham County, after making certain recitals, passed the following: “Do hereby collectively and severally condemn and abandon and turn over to said company all their rights, title and interest in and to all those parts of the present public roads or any public roads which have been constructed by them or any or under their authority or jurisdiction of them within the flooded areas, and do hereby authorize the closing of and the disuse of said roads and do hereby authorize and empower said company to flood same.” The record discloses that no petition was filed or notice given or hearing had. On 2 January, 1928, the board of county commissioners of Graham County passed a resolution rescinding and annulling the resolution of 5 December, 1927. The resolution reciting: “It appears that no petition has been filed for closing or abandoning any of the said public roads affected by said order, and that no notice of the same has been given, and that no public hearing has been given for the purpose, as this board has since been informed and advised is required by law.” The board of county commissioners of Graham County that passed it rescinded it, and thought it illegal, and we are of the same opinion. In regard to the road up Watauga Branch, which did not go through but by plaintiffs’ land, and which was used for ingress and egress — we think the evidence sufficient to go- to the jury as to adverse user. It was in evidence that this road was built and opened up about 1887 or 1888 to move timber and a right of way obtained and plaintiffs and those under whom they claim have used the road and it has been worked by those who used it and been used by the public in general ever since. The right of way was given to move timber off the land now owned by plaintiffs and others, and used for that purpose and continuously used ever since. “From that time on the road up Watauga Branch was used continuously by the people who lived on that branch and anybody else who wanted to go up and down it.” The record discloses that in all the years since 1887 or 1888 no landowner through whose land this road ran made any objection to its use by plaintiffs or others. On this aspect the court below charged: “We come now to determine was there an adverse user for the requisite period, and in. this connec *359 tion the court charges you as a matter of law that to establish adverse use there must be of the roadway sought to he shown as a private way, a clear, definite, positive and notorious use thereof. Such use must be continuous, adverse, hostile and exclusive during the entire statutory period of twenty years, with an intention on the part of the user to claim a private way over the lands over which such roadway ran. A use hy permission or license for such period would be insufficient to establish a private way, and any other use other than an adverse use would likewise be insufficient, the use must be with the intent to hold to the exclusion of others, and not by sufferance of others.” We think the charge is in accordance with the law in this jurisdiction. In Gruber v. Eubank, 197 N. C., at p. 285, it is said: “The legal essentials for creating an easement by prescription are thus stated in 9 E. C. L., 772: ‘To establish an easement by prescription it 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, 187 N. C., 18, 121 S. E., 29; Durham v. Wright, 190 N. C., 568, 130 S. E., 161.” The fact that in going over the road at some period bars had to be laid down was for the jury to consider on adverse user. In Grant v. Power Co., 196 N. C., at p. 619, speaking to the subject: “It is well settled, of course, in this State, that the right to a private way over and across the land of another may he acquired as against the owner of the land, by a continuous adverse use for twenty years, and that a mere user for the required period is not sufficient to confer the right.” Second. Can plaintiffs maintain an action against defendant for damages resulting from the wrongful obstruction of said roads? We think so. The following principle is applicable in this action — 13 E. O. L., “Highways,” p. 231, part sec. 195: “It is generally held that one whose means of ingress to and egress from his property is completely cut off by an obstruction suffers a special injury, different from that suffered by the public at large, as, for example, where the obstructed way affords the only means of getting to market with the products of his adjoining-farm. It is not material whether access is completely cut off from every _ point, or whether the obstruction merely cuts off the means of reaching particular places with which it is necessary or advantageous for the plaintiff to communicate.” This question was not directly presented in the Grant case, supra, but the opinion cites the principle above enunciated, as taken from 29 C. J., at pages 631 and 632, as follows: “It is said that an action for *360 damages against one wbo injures a public highway may be maintained by a private person, if-he has sustained special damages, differing not merely in degree, but in kind from that suffered by the community at large, as where access to plaintiff’s property is cut off. Many decisions are cited in support of the text. As the question is not presented on this appeal, we do not decide it. It would seem, however, that plaintiff sustained special damages in this case, caused by defendant’s flooding the road and cartways upon which he was dependent for access to his land.” Grant case, supra, p. 619. In the present action plaintiffs and their families are marooned far up on the mountain side by defendant flooding the roads. The roads heretofore used for ingress and egress for over forty years by plaintiffs and those under whom they claim, covered with water to within 400 yards of plaintiff’s land, cutting off their ingress and egress to the main turnpike highway. The Santeetlah public road totally submerged with water and plaintiffs’ private way also covered with water for some distance. The court below gave a most minute and detailed charge covering the law on every phase of the evidence. The contentions were given fairly to both sides. We have examined the exceptions and assignments of error made by defendant, to admission and rejection of evidence, to refusal to submit issues tendered by defendant and to the charge of the court, and can find no prejudicial or reversible error. No error.