Woods v. City of Durham

ClakksoN, J. "We think the court below correct in allowing defendant’s motion as in case of nonsuit at the close of all the evidence. We think the charter of the city of Durham, section 66, in relation to the defense of the statute of limitation properly set up in the answer and offered by the defendant in evidence. The plaintiff relies on what he alleges that the city engineer told him. “He said: ‘Yes, Woods, I will do that. I will send a man tomorrow and have the grade fixed and the line set back as far as it will be necessary to take when they made a permanent job, but mind you, we are not taking any land now.’ ” But the answer to this is that defendant in 1923 did cut the bank down at its own expense and graded the street and actually took the land, and it has been used by the public until 1929, when this suit was instituted. Plaintiff put up a cement retaining wall, 4 to 6 feet high, which, including the steps, was 72 feet long — and this was done leaving the land in controversy a part of the street, occupied by the city and used by the public. By the court: “You mean the line of the strip — between the strip and what was left of your land?” Answer: “Yes, sir. I built it on what is known now as the land that belongs to me outside of what they taken.” The plaintiff testified: ‘Nobody for the city told me they wanted the strip of land for a sidewalk, but they took it. ... I have not exercised any control over that sidewalk since 1923. I have not claimed it at all.” *612 Since 1923 tbe land taken has been kept open and clear and used by the public as a street and sidewalk, and has been under the custody and control of the city ever since. We do' not think the expression made by the city engineer and what he testified to, in regard to this matter, under the facts and circumstances of this case, is such evidence as appeared in. Gaddis v. Road Commission, 195 N. C., 107, and cases therein cited, in which it was held inequitable to plead the statute of limitations. The two-year statute of limitations provided in the charter started to run, in the language of the statute, “after said land was taken.” The conduct and acts of plaintiff; the city cutting down the embankment and widening the street at its expense; the plaintiff putting up the retaining wall on his property at his expense, in line with the street, widened with his permission; the land taken by the city and adverse use by the public from 1923 until this suit was instituted in 1929, are such that under the facts and circumstances of this case, the two-year statute under defendant’s charter,' which was pleaded, commenced to run in 1923, when the land was taken, and is sufficient to bar plaintiff from recovery in this action. Tise v. Whitaker, 146 N. C., 374; City of Durham v . Wright, 190 N. C., 568. The judgment of the court below is Affirmed.