Charlotte Consolidated Construction Co. v. City of Charlotte

CoNNou, J. At the close of all the evidence at the trial of this action, the defendant moved for judgment as of nonsuit, and excepted to the refusal of the court to allow its motion. On its appeal to this Court, in support of its assignment of error based on this exception, the defendant contends: 1. That there was no evidence from which the court could find that the defendant had taken from the plaintiff and appropriated to its own use the water mains owned by the plaintiff, as alleged in the complaint; 2. That all the evidence showed that plaintiff’s right of action, if any, to recover for the water main constructed by the defendant at the request of the plaintiff and paid for by the plaintiff, in accordance with its agreement, in 1916, had not accrued at the date of the commencement of this action; 3. That all the evidence showed that plaintiff’s right of action, as alleged in the complaint, is barred by the statute of limitations, which had been duly pleaded in the answer. 1. All the evidence showed that at the time they were constructed the plaintiff was the owner of the water mains described in the complaint. There was no evidence tending to show that the defendant had thereafter, and prior to 15 August, 1934, acquired title to the said water mains. There was evidence tending to show that prior to 15 August, *312 1934, tbe defendant bad been in possession of tbe water mains owned by tbe plaintiff continuously from tbe dates on wbicb they were constructed; tbat sucb possession was witb tbe permission of tbe plaintiff, and was at no time adverse to tbe plaintiff; and tbat sucb possession was pursuant to agreements witb respect to said water mains by and between tbe plaintiff and tbe superintendent of tbe defendant’s municipal water system. There was evidence tending to sbow further tbat on or about 15 August, 1934, tbe defendant refused to recognize plaintiff’s ownership of said water mains, and right to their possession; tbat since said date tbe defendant has remained in possession of said water mains, and continued to use tbe same as part of its municipal water system; and tbat defendant is now and has been since 15 August, 1934, in tbe adverse possession of said water mains. This evidence is sufficient to sustain tbe finding by tbe court tbat on or about 15 August, 1934, under its right of eminent domain, tbe defendant took tbe water mains described in tbe complaint from tbe plaintiff, and thereafter appropriated tbe same to its use as part of its municipal water system. Tbe instant case is distinguishable from Farr v. City of Asheville, 205 N. C., 82, 170 S. E., 125. In tbat case it was held tbat tbe evidence was not sufficient to sbow tbat tbe defendant bad appropriated tbe water mains owned by tbe plaintiff. 2. This is not action on a contract. The defendant in its answer alleges tbat there was no contract between tbe plaintiff and tbe defendant witb respect to any of tbe water mains described in tbe complaint. This is admitted by the plaintiff. For tbat reason, tbe second contention of tbe defendant witb respect to its motion for nonsuit cannot be sustained. Tbe evidence tending to sbow agreements between tbe parties witb respect to tbe water mains was offered, not for tbe purpose of establishing contractual rights on tbe part of tbe plaintiff against tbe defendant, but solely for tbe purpose of showing tbat tbe possession by tbe defendant of tbe water mains, prior to 15 August, 1934, was with tbe permission of tbe plaintiff, and was not adverse. 3. Tbe cause of action alleged in tbe complaint, and supported by tbe evidence at tbe trial, accrued, if at all, on or about 15 August, 1934. For tbat reason tbe action is not barred by tbe statute of limitations pleaded by tbe defendant, or subject to tbe provision in tbe defendant’s charter witb respect to notice of claims against tbe defendant. See Stephens v. City of Charlotte, 201 N. C., 258, 159 S. E., 414. Other assignments of error relied upon by tbe defendant are based upon exceptions to evidence admitted by tbe court over objections by defendant. These assignments of error cannot be sustained. We find no error in tbe trial of this action. Tbe judgment is Affirmed.