Hylton v. Town of Mount Airy

Winborne, J. The only exception presented in the assignment of error in the record on this appeal is to the signing, of the judgment from which appeal is taken. Such an exception challenges only the conclusions of law upon the facts found by the court or upon which the parties *625 agree, — as in this case, the facts set out in the agreed statement and those admitted in the pleadings in accordance with the stipulations of the parties. Vestal v. Machine Co., 219 N. C., 468, 14 S. E. (2d), 427; Manning v. Ins. Co., ante, 251. If the judgment be supported by the facts it will be affirmed. Rader v. Coach Co., 225 N. C., 537, 35 S. E. (2d), 609. In the light of these principles, appellant fails to show error. It would seem that the conclusions of law reached by the court logically follow the facts to which the parties agree. Upon these facts the court could properly conclude as a matter of law that the town had acquired the street, at least by prescription. See Boyden v. Achenbach, 79 N. C., 539; Wright v. Lake Waccamaw, 200 N. C., 616, 158 S. E., 99, and cases cited. Plaintiffs, the appellants, concede in their brief that the facts are as shown in the agreed statement of facts, but they say that the facts fail to show that the town of Mount Airy has acquired title to any part of Mitchell Street, or, if so, what part. This appears to be the basis of their contention that there is error in the judgment signed. However, they allege in their complaint that one of the streets to be constructed from the funds derived from the sale of the bonds is Mitchell Street. And the thing complained of is not that Mitchell Street is not a street, but that the Board of Commissioners propose to pave it of the width of 27 feet, and not of the width of 30 feet, in violation of law. Hence, they pray that the Mayor and Board of Commissioners of the town shall be restrained from constructing Mitchell Street “less than 30 feet in width, and with 5-foot sidewalks.” This is the purpose of the action. And they have agreed in the statement of facts (1) that Mitchell Street is the same as North South Street, which was received by the town of Mount Airy on 2 August, 1910; (2) that in the acceptance of it by the town no reference was made to the width; (3) that since the opening of the street by the town in 1910, the town has kept up and maintained it as a public street and it has been so used by the public; and (4) that the width of the street is as stated in the agreed statement. Furthermore, plaintiffs themselves petitioned the town to pave the street. Summing up plaintiffs’ position, it would seem that Mitchell Street is a street if it is to be paved 30 feet in width, but is not a street if it is to be paved 27 feet in width. The provisions of the town’s charter, Private Laws 1925, Chapter 160, Section 50, that streets “shall be not less than 30 feet in width” relate to streets thereafter opened and constructed for the use of the public within the town of Mount Airy and not to those then in use. Hence it is inapplicable here. Therefore, the court properly held that the determination of the width of Mitchell Street is within the discretion of the Board of Commissioners of the town. Indeed, the parties agree that the charter *626 of the Town of Mount Airy (Private Laws 1925, Chapter 160, Section 49) expressly authorizes the Board of Commissioners to establish the width and ascertain the location of those streets already established, and to widen or reduce the width of streets “now established,” that is, established at time of enactment of the charter — 1910. Nevertheless, plaintiffs move in this Court to be permitted to amend their complaint so as to allege that the town of Mount Airy has no title to Mitchell Street, either by deed or otherwise, and that the defendants have no legal authority to expend thereon moneys belonging to the town' of Mount Airy, and that the question of title to the property is a fact to be found by the jury. The motion is denied. The introduction of such amendment would substantially change the character of the cause at issue, and will not be permitted. G. S., 1-163. “It is well understood that except in proper instances a party to a suit should not be allowed to change his position with respect to a material matter in the course of litigation. . . . Especially is this so where the change of front is sought to be made between the trial and appellate courts.” Stacy, C. J., in Ingram, v. Power Co., 181 N. C., 359, 107 S. E., 209. See also Roberts v. Grogan, 222 N. C., 30, 21 S. E. (2d), 829. The judgment below is Affirmed.