Farr v. City of Asheville

ReogdeN, J. Was there evidence that the defendant did “on and after 30 June, 1929, wrongfully take possession of said water main and appropriate the same to its own use?” The facts relied upon by the plaintiff to show wrongful taking and appropriation are as follows: (a) The extension of the limits of the city of Asheville in June, 1929, thus incorporating the water system into the general system of the city. (b) The repairing of a leak on Farrwood Avenue near Vineyard Street. (c) The flushing of a hydrant at a dead-end on Vineyard Street by the city plumber. (d) The extension of the Virginia Avenue water line and connection thereof to the Farrwood line after city extension. Manifestly, the bare extension of the city limits did not amount to a wrongful taking or appropriation of plaintiffs’ property. The city owned a water line on the western boundary of the development, and also another line on Kimberly Avenue, which is east of the Farrwood development. The Farrwood construction was made in 1923 or 1924, and the city began furnishing water through the pipes claimed by the *85 plaintiffs and collected water rentals from users witbin tbe area. Tbe repairing- of a leak and tbe Hushing of a dead-end was incident to furnishing water. Indeed a witness for plaintiffs said that there has been no change in tbe method of furnishing water since the installation of the system. “It was handled in 1929 just as it was done prior to 1929.” Neither does the fact that a connection was made to the Earr-wood Avenue line outside the development constitute a wrongful appropriation of plaintiffs’ property. In the last analysis the plaintiff built a private water system, and for his own convenience and profit, connected it with the city system on the east and west of his development. The city immediately began to furnish water to residents in the subdivision on the completion of the system and has continued to do so up to the time the suit was brought on 3 February, 1932, without any change in its methods and without any assertion of ownership of the water pipes laid by the plaintiffs. Consequently,. the court is of the opinion that there was no evidence of a wrongful taking or appropriation of plaintiffs’ property within the definition of such terms. Cavaness v. R. R., 172 N. C., 305, 90 S. E., 244; Powell v. R. R., 178 N. C., 243, 100 S. E., 424. Therefore, the motion for nonsuit should have been allowed. Reversed.