Henry v. Farlow

78 S.E.2d 244 (1953)

238 N.C. 542

HENRY v. FARLOW et al.

No. 389.

Supreme Court of North Carolina.

November 4, 1953.

*245 Ottway Burton, Asheboro, for plaintiff, appellee.

G. E. Miller and Adam W. Beck, Asheboro, for defendants, appellants.

ERVIN, Justice.

The assignment of error raises this solitary question: Did the trial judge err in refusing to dismiss the action upon a compulsory nonsuit after all the evidence on both sides was in?

The defendants assert that the evidence is not sufficient to show that the use of the roadway by the plaintiff and her tenants was adverse or under claim of right, and that the question must be answered in the affirmative on that ground, even though the evidence may be ample to establish that the use of the roadway by the plaintiff and her tenants was continuous and notorious for twenty years or longer. We are constrained to agree.

The mere use of a way over another's land cannot ripen into an easement by prescription, no matter how long it may be continued. Williams v. Foreman, 238 N.C. 301, 77 S.E.2d 499; Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153; McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Colvin v. Tallassee Power Company, 199 N.C. 353, 154 S.E. 678; Gruber, Inc., v. Eubank, 197 N.C. 280, 148 S.E. 246; Grant v. Tallassee Power Company, 196 N.C. 617, 146 S.E. 531; Durham v. Wright, 190 N.C. 568, 130 S.E. 161; Draper v. Conner & Walters Co., 187 N.C. 18, 121 S.E. 29; State v. Norris, 174 N.C. 808, 93 S.E. 950; Snowden v. Bell, 166 N.C. 208, 80 S.E. 888; Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Boyden v. Achenbach, 79 N.C. 539, 540; Ray v. Lipscomb, 48 N.C. 185; Smith v. Bennett, 46 N.C. 372; Ingraham v. Hough, 46 N.C. 39; Mebane v. Patrick, 46 N.C. 23.

This is necessarily so because the law presumes that the use of a way over another's land is permissive or with the owner's consent unless the contrary appears. McCracken v. Clark, 235 N.C. 186, 69 S.E.2d 184; Speight v. Anderson, 226 N.C. 492, 39 S.E.2d 371; Chesson v. Jordan, 224 N.C. 289, 29 S.E.2d 906; Darr v. Carolina Aluminum Co., 215 N.C. 768, 3 S.E.2d 434; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 2, 3; Perry v. White, 185 N.C. 79, 116 S.E. 84. "There must then be some evidence accompanying the user, giving it a hostile character and repelling the inference that it is permissive and with the owner's consent, to create the easement by prescription and impose the burden upon the land." Darr v. Carolina Aluminum Co., supra [215 N.C. 768, 3 S.E.2d 437]; Nash v. Shute, 184 N.C. 383, 114 S.E. 470; Boyden v. Achenbach, 86 N.C. 397.

The evidence does not suffice to show that the use of the roadway by the plaintiff and her tenants was accompanied by circumstances giving it an adverse character and rebutting the presumption that it was permissive. The circumstance that the owners of the soil did not object to the use of the way harmonizes with the theory that they permitted the use of the way. There is, moreover, no inconsistency between the circumstance that the plaintiff and her tenants used the way without asking the owners of the soil for permission to do so, and the conclusion that the plaintiff and her tenants used the way with the implied consent *246 of the owners of the soil. When all is said, the assertion that the plaintiff and her tenants used the way without asking the permission of the owners of the soil is tantamount to the assertion that the plaintiff and her tenants used the way in silence. Neither law nor logic can confer upon a silent use a greater probative value than that inherent in a mere use.

For the reasons given, the judgment is

Reversed.