Hunter v. . West

*161 Clark, 0. J. This is an action to enforce the opening of an alleyway. The plaintiff’s grantor and the defendants, or those under whom they claim, were parties to a partition of the lands of R. W. 'Ring, deceased. A clause in the report of the commissioners, confirmed 16 March, 1894, provides: “In order to make said allotment convenient, the committee have laid off and allotted an alleyway 20 feet wide, to ran in a northern and southern direction through all of said lots beginning on the northern side of Ring Street at a point 210 feet from the corner of Ring and Queen streets and running parallel with Queen Street to the Miller or Dunn line.” The summons in this case was issued 9 August, 1915, more than twenty-one years later. The defendants plead the statute of limitations of twenty years adverse possession. There is evidence that the alley described and allotted in the report was never physically and actually laid off and used. The defendants also rely upon the plea of abandonment and nonuser. On the intimation of the court that it would instruct the jury if they believed the evidence they should answer the second issue, “Has the plaintiff lost the right to the alleyway by failing to_ use the same, or by adverse user thereof by others, or in any other way?” in the affirmative, the plaintiff took a nonsuit and appealed. In the' view expressed by the court there was no error. We pass by the objections urged by the defendants,' that certain of the defendants have not been served, and, therefore, that the decree could not be entered opening up only a disconnected part of the alleyway, and also the objection raised that it was beyond the scope of the authority of the commissioners in making partition to direct an alleyway to be laid off. We prefer to put our decision upon the ground that the alleyway not having been shown ever to have been in use, there has been an abandonment by the plaintiff of any right to cause the same to be now laid out after twenty years of nonuser, and that the presumption of abandonment is not rebutted. And also upon the ground that possession for twenty years by the defendants and those under whom they claim is necessarily an adverse possession as to a right of way, and the same having continued more than twenty years with possession under known and visible metes and bounds, is a bar to a recovery by the plaintiff, especially as there is no evidence that the alleyway has ever been used. If the proceeding be considered as an action to enforce the execution of the decree which confirmed the report directing the alleyway to be laid off. and such action was within the scope of the authority of the commissioners, the action is barred by the lapse of ten years. Rev., 399; Smith ex parte, 134 N. C., 495; McAden v. Palmer, 140 N. C., 258; Rice v. Rice, 115 N. C., 43. The decree does not mention the alleyway. Adverse possession by defendants for more than twenty years is *162 admitted by tbe allegations in tbe complaint, wbicb are binding on tbe plaintiff, and wbicb set out tbat tbe defendants bave beld continuous adverse possession of tbe alleyway. Tbe complaint doe.s not allege tbat tbe alley was ever laid off and in use. Tbis would justify a nonsuit. Besides, there is abundant testimony as to tbe actual bolding of tbe land adversely. Tbe allegations in tbe complaint in paragraphs 9, 10, and 11 are that tbe defendants, “against tbe interest and rights of tbe plaintiff, bave denied and continued to deny tbe plaintiff’s right and privilege of ingress and egress over and through tbe alley.” Tbe evidence of tbe defendants is tbat there never has been such an alley, no attempt to lay it off, and tbat all tbe land covered by tbe proposed alley- has been in tbe open, notorious, and adverse possession of tbe defendants and those under whom they claim ever since tbe division proceeding; tbat it has been under fence and with buildings on it, and at no time would it bave been possible to lay out tbe alley except by invading tbe actual inclosures of defendants and tearing down permanent structures. Tbis state of fact is shown also by plaintiff’s evidence and is nowhere contradicted. Tbe mere fact tbat tbe parties bave bad tbe same agent to collect rents and pay taxes in no wise conflicts with tbe allegations in tbe complaint and tbe evidence of both parties to tbe above effect. Land Co. v. Floyd, 171 N. C., 543. No error.