Dodge v. State Highway & Public Works Commission

Denny, J. The jury having answered the first issue in favor of the respondent, the question before this Court is to determine whether or not the petitioner has established any easement or right by having constructed this canal in 1923 which would entitle him to recover from the respondent, the public roads agency of the State, for an alleged interference with those rights. It was alleged in the petition that the petitioner had an agreement with the State Highway Commission to maintain a removable or drawbridge. However, this was denied by the respondent and no evidence offered to prove the existence of such a contract at the trial in this proceeding. The statute, C. S., 3195, requires that every person who for the purpose of draining his lands, or for any other purpose, shall construct any ditch, drain or canal across a public road to keep at his own expense in good and sufficient repair all bridges that are or may be erected over which a public road may run. The petitioner unquestionably recognized this duty and performed it for some ten years. This road was a public highway when petitioner built his canal. In the case of Shelby v. Power Co., 155 N. C., 196, 71 S. E., 218, Brown, J., says: “It is well settled that, unless by legislative enactment, no title can be acquired against the public by user alone, nor lost to the public by non-user. Commonwealth v. Morehead, 4 Am. St., 601, and cases cited; 22 Am. and Eng., page 1190. Public rights are never destroyed by long-continued encroachments or permissive trespasses,” cited and approved in the case of Lenoir v. Crabtree, 158 N. C., 357, 74 S. E., 105. *7 In Hildebrand v. Telegraph Co., 219 N. C., 402, 14 S. E. (2d), 252, it is stated: “It may be conceded that tbe easement acquired by the State for a public highway is, under existing law, so extensive in nature and the control exercised by the Highway Commission is so inclusive in extent that the subservient estate in the land, from a practical standpoint, amounts to little more than the right of reverter, in the event the easement is abandoned.” And again, on page 409 of the same opinion: “As we view it, the effect of this act is to give dominance to the easement acquired by the State. Under the terms thereof the Highway Commission has authority to control the uses to which the land embraced within the easement may be put. If it deems it wise or expedient so to do, in the interest of the traveling public, it may altogether exclude the imposition of any additional easement or burden.” In Perry v. White, 185 N. C., 79, 116 S. E., 84, this Court, speaking through Clark, C. J., said: “Conceding that the ditch had existed and been kept up continuously for draining plaintiff’s land for the past 30 years over the land of the defendant, the plaintiff would not have acquired the right of easement thereby. This user may have been permissive, and the law presumes that it was. Mere user for 30 years will not confer an easement unless it appears that it was adverse.” See, also, Barr v. Aluminum Co., 215 N. C., 768, 3 S. E. (2d), 434, and eases cited therein. We do not think the petitioner has established any rights adverse to the easement of the respondent and its predecessor in title, the Board of Commissioners of Tyrrell County. We think the rights exercised by the petitioner have been permissive and not adverse, and the judgment of the court below is Reversed.