City of New Bern v. Wadsworth

Hoke, J., after stating the case: This was a proceeding to condemn land, instituted by the city of New Bern, and his Honor below very properly submitted issues only on the question of damages. .It appeared that Pollock Street, to the point of its intersection with Queen Street, has heretofore been opened and used by the public to a width of sixty feet, and beyond that point, to End Street, th,e highway has been extended and used at a width of about thirty feet, and has been usually known as Trent Road; that in December, 1906, the municipal authorities passed an ordinance to open Pollock Street to a width of sixty feet for its entire length to End Street; whereupon the defendants, as ‘ owners and occupants ,of property lying along the proposed route, filed a claim for damages. Pursuing the method indicated and required by the charter, the city appointed three, assessors, who viewed the property, assessed the damage done defendants by the “opening and broadening of Pollock Street from Queen to End Streets,” and made report. The city, being dissatisfied with the amount awarded, filed exceptions to said report and appealed, and the cause was thereupon certified to the Superior Court for trial. ■ Upon these facts, and in this condition of the record, it was not open to plaintiff to assail the title of the defendants as abutting owners of the property along the line of the proposed route. No such issue was anywhere raised in the record. All the proof showed that the claimants were in the occupation of the property, claiming it as owners, and this position had thus far been recognized throughout by both sides of the controversy, and, as heretofore stated, the only relevant issues arising on the record were those as to the amount of damages. While there was no issue raised as to defendants’ title as abutting owners, it was no doubt permissible for the city of New Bern to show, if it could, by proper evidence on'the issues as to damhges, that the extension of Pollock Street to the proposed width of sixty feet did not *312 exceed the easement wbicb bad been already acquired by tbe public; for, if it bad been so acquired, no length of time or adverse user would bar or destroy it; such a right coming.'within the principle that statutes of limitation do not ordinarily run against the sovereign, king or commonwealth. Turner v. Commissioners, 121 N. C., 153; Moore v. Carson, 104 N. C., 431; Elliott on Roads and Streets, sec. 883. If the right, therefore, had ever existed in the public, and to the extent, that it did exist, no damage should be allowed for its present exercise; but in order to make such a position available in reduction of the claim of defendants, the easement for the benefit of the public must have taken its rise in some recognized manner by condemnation, by dedication and acceptance, by estoppel or adverse user for twenty or more years, and must be established by proper testimony; and it is not permissible, at least in this present case, to attain such a result indirectly by evidence in impeachment of defendants’ title as abutting owners. As to title by dedication and acceptance or by adverse user, see State v. Fisher, 117 N. C., 733. On the trial there was testimony admitted, over defendants’ objection, to the effect that a Mr. Meadows, one of the grantors in defendant "Wadsworth’s deed, at some survey had by him prior to such conveyance, had directed the surveyor to leave as much as sixty feet along the Trent Road to “widen it to that”; and deeds to some of the defendants. were shown in evidence which called for the northern boundary of the property conveyed as “Trent Road or Pollock Street extended.” These were relevant circumstances on the question whether an easement to the extent claimed had ever been acquired for the public, but this evidence was also admitted as testimony affecting adversely defendants’ title as abutting owners. This additional purpose was not only declared at the time the evidence was introduced, but it was given such effect in the charge of the court, as follows: “If you find that the northern line claimed by Enoch Wads-worth was the line of Pollock Street, and that the line of Pollock Street extended would include all of the thirty feet, then, under his deed, he would not hold any of the land to be occupied by the widening of the street, and you would answer the issue as to this claimant ‘Nothing.’ ” It is no satisfactory answer that the error suggested is cured by the verdict, which in effect upholds the title of defendant as abutting owners by awarding them damages; for, while damage is awarded, it clearly appears from a perusal of the verdict, more especially in the response to the fourth and fifth issues, that the assault made on the title of defendants was given substantial *313 consideration by the jury, and damages only allowed for moving houses off the property taken. The verdict so expressly states; and, referring more especially to the verdict on the fifth issue, here the lot, the one in the apex of the angle formed by junction of Queen and Pollock streets, would seem to be well-nigh destroyed for building purposes, and yet the award is only for moving the buildings off the lot. As 'heretofore indicated, it is competent for plaintiff to show on the issue as to damages the extent and nature of the easement already acquired for the public benefit, and the damages should only be allowed for the additional burden (Creighton v. Commissioners, 143 N. C., 171); but it is not open to plaintiff, on this record, to show that defendants are not abutting owners, or to offer testimony for the purpose of impeaching their titles as such; and, for the error in allowing this, we are of opinion that, as to those who have appealed, the cause should be referred to another jury, and it is so ordered. New trial.