Wright v. Town of Lake Waccamaw

Adams, J. A street or highway may be established by prescription, dedication, or condemnation. “According to tbe current decisions of tbis Court, there can be no public highway, unless it be one either established by tbe public authorities in a proceeding regularly constituted before tbe proper tribunal, or one generally used by tbe public over which tbe proper authorities have exerted control for tbe period of twenty years, or one dedicated to tbe public by the owner of tbe soil with tbe sanction of tbe authorities, and for the maintenance and reparation of which they are responsible.” Kennedy v. Williams, 87 N. C., 6. This position finds support, not only in the cases cited in the opinion, but in subsequent decisions of the Court. There is no evidence that the defendant appropriated the plaintiff’s property under the law of eminent ddmain. The adoption of an official map did not serve the purpose of condemnation. The question is whether the defendant acquired an easement by prescription or dedication. There is no proof that tbe plaintiff has ever executed a grant for an easement. Tbe defendant’s principal contention is that tbe'town acquired an easement by adverse use of tbe streets, squares, and commons. In Boyden v. Achenback, 79 N. C., 539, it is said that where tbe public has used a way as a public road, and tbe road has been worked and kept in order by “an overseer and hands” for more than twenty years, it will be presumed that the owner dedicated it to the public. This case is cited in Kennedy v. Williams, supra. But in the later case of Haggard v. Mitchell, 180 N. C., 255, the.Court said this: “In this last case, however (Kennedy v\ Williams), the road in question had only been open and used 'for about six years, and while the case is undoubtedly well decided, this reference to a working by an overseer and *618 bands is only by way of suggestion on tbe part of tbe able and learned judge wbo wrote tbe opinion, and it was by no means tbe effect and intention of tbat decision to bold tbat in order to establish a public way by user, there must be direct proof of formal recognition by tbe public authorities having charge of tbe matter, but such recognition and other essentials could be inferred from tbe occupation itself, when sufficiently general and of an extent and character as to permit tbe inference as stated tbat tbe public bad assumed control, and were exercising it adversely and as of right. Accordingly, in tbe subsequent case of S. v. Eastman, 109 N. C., 785, indictment for nuisance in obstructing a public square, it was expressly decided tbat a public square was in effect a part of tbe public highway; tbat tbe appointment of an overseer and bands was not an essential, and in this and several of tbe other authorities cited, it is fully recognized tbat tbe existence of a highway can be established by other facts showing adverse user on tbe part of tbe public.” In case of a direct dedication of land to tbe public use there sboulid ordinarily be some evidence of acceptance; for as declared in S. v. Fisher, 117 N. C., 733, 739, “Tbe owner of land cannot, by executing a deed to tbe public conveying a right of way to a highway, compel tbe authorities to assume tbe burden of repairing it unless tbe properly constituted agents of tbe county or town accept it.” But where dedication is relied upon as implied from adverse user or where adverse user is invoked under tbe doctrine of prescription there must be evidence not only tbat tbe way was used for tbe requisite period, but tbat tbe user was adverse. Haggard v. Mitchell, supra; Draper v. Conner, 187 N. C., 18; Weaver v. Pitts, 191 N. C., 747. Tbe burden of showing adverse user is upon tbe person who asserts it. S. v. Fisher, supra. An examination of tbe record leads us to tbe conclusion tbat there is not sufficient evidence of tbe adverse use by tbe public of tbe property in question to justify a finding to this effect, and tbat there is no error in tbe instruction given tbe jury. No error.