Candler v. Sluder

130 S.E.2d 1 (1963)

259 N.C. 62

W. W. CANDLER, Eloise Candler Willis, Coke Candler, Mabrye G. Brenton and Lucinda C. Bell, Petitioners, v. Willie Mae SLUDER, widow of L. L. Sluder, and Vance S. Byrd and wife, Grace C. Byrd, Mrs. Carlee Ledford, Alice Ledford Watkins Soper, Lee Ledford Trexler, Lena Gudger and Mary Lou Gudger, Respondents.

No. 90.

Supreme Court of North Carolina.

March 20, 1963.

*3 Don C. Young, Asheville, for petitioners.

Van Winkle, Walton, Buck & Wall, and Herbert L. Hyde, Asheville, for respondent Sluder.

MOORE, Justice.

Appellant assigns as error the denial of her motion for nonsuit.

Plaintiffs' evidence is summarized in the following numbered paragraphs:

(1) The public road, "Billy Cove Road," dead-ends at the northern boundary of the Byrd tract (80.2 acres). Byrds' land does not adjoin plaintiffs' tract. The Sluder land (116.35 acres) does not about the public road but is 140 feet therefrom and has access to the public road by a private way over the Byrd land. The Sluder and Ledford lands adjoin plaintiffs' land. The Ledford land (49 acres) does not extend to the public road. For about 50 years there was a road across the Byrd and Sluder lands to plaintiffs' land, but it was closed by a locked gate and a rock 12 to 18 years before this suit was instituted. After this road was closed plaintiffs had permission to use a road over the Byrd and Ledford lands. About two years prior to the filing of this action Byrd withdrew permission, closed the road by means of a locked steel gate, and posted "No Trespassing" signs.

(2) On plaintiffs' land there is an apple orchard of 40 to 50 trees. The trees annually produce 6 to 10 bushels per tree. Plaintiffs, when they had access, gathered the apples, used some and gave the rest to their neighbors. They sold some "way back."

(3) About a third of the land is in grass suitable for pasture. It was used as summer range for cattle. On one occasion after the road was closed defendant Byrd permitted one of the plaintiffs to take cattle to the land, and offered him a key to the gate and permission to use the road if he would grade it, but did not offer the others this permission.

(4) There is merchantable timber on the land. There are locust trees, suitable for fence posts, and poplars and oaks 2 to 3 feet in diameter. The trees are deteriorating and need to be cut, and plaintiffs plan to cut and remove them as soon as a road is available.

(5) There is a cabin on the land. Hunters occasionally lease the cabin and the hunting rights to the land.

Appellant contends nonsuit should have been granted because (a) plaintiffs' principal purpose is to provide a road for the use of hunters, (b) plaintiffs have made no preparations for removing timber, (c) they have never sold apples and walnuts commercially, and (d) there is "no evidence they had failed to get their cattle in and out by permission of respondent Byrd."

The pertinent portion of G.S. § 136-69 provides: "If any person * * * shall be engaged in the cultivation of any land or the cutting and removing of any standing timber * * * or taking action preparatory to the operation of any such enterprises, to which there is leading no public road or other adequate means of transportation affording necessary and proper means of ingress thereto and egress therefrom, such person * * * may institute a special proceeding as set out in the preceding section, and if it shall be made to appear to the court necessary, reasonable and just that such person shall have a private way to a public road * * * over the lands of *4 other persons, the court shall appoint a jury of view * * *."

G.S. § 136-68 and G.S. § 136-69 are in derogation of the free and unrestricted use and enjoyment of realty by the owner of the land over which it is sought to establish a cartway, and must be strictly construed. Brown v. Glass, 229 N.C. 657, 50 S.E.2d 912; Warlick v. Lowman, 103 N.C. 122, 9 S.E. 458. The use to which petitioner for a cartway is putting or preparing to put his land must comply with statutory specifications. Hunting is not a use contemplated by G.S. § 136-69. But the fact that hunting is one of the principal uses does not necessarily defeat petitioners' right to a cartway, where there are other uses which do conform. The rule of strict construction does not limit the uses to those specified in the statute if in fact there are uses which do meet statutory requirements. We think the presence of an apple orchard of forty or more trees, which had annually produced large quantities of apples and were so producing at the time of the trial, is sufficient compliance with the statute to withstand nonsuit on the question of enterprises. In its narrow sense "engaged in the cultivation of land" means breaking the soil as with a plow, but in its broad sense it means use of the land for raising crops, whether of apples or cattle. See "cultivate," Webster's Third New International Dictionary unabridged (1961). The fact that crops are gathered and used by the owners and given to neighbors and not sold commercially is not a disqualification on motion to nonsuit. It is suggested that there is no evidence of preparations to cut and remove timber. One of the petitioners testified: "Yes, I have made preparations to take it (the timber) off. I am right now waiting to cut some timber up there and take it off and market a bunch of it. I am going to make preparations if I get a road up there." To make preparations to cut timber, under the situation here presented, it is not necessary that petitioner take his implements to a gate he is forbidden to enter and wait there until he has established his right to enter by court action. Petitioner testified he was ready to cut the timber as soon as he has a way over which to transport it. Defendant Byrd on one occasion permitted one of the petitioners to take cattle to the land after the road had been closed, and offered this particular petitioner a key to the gate lock on condition petitioner would grade the road. The limited permission offered does not establish as a matter of law that petitioners have a way "affording necessary and proper means" of ingress and egress. The questions raised by appellant on her motion for nonsuit are more properly for jury consideration. Garris v. Byrd, 229 N.C. 343, 49 S.E.2d 625; Barber v. Griffin, 158 N.C. 348, 74 S.E. 110. The motion for nonsuit was properly overruled.

The court submitted one issue and the jury answered it in the affirmative. It is: "Are petitioners entitled to have a cartway established under G.S. 136-69 across the lands of respondents?" Appellant excepted to the issue submitted and tendered an issue relating to the Sluder land only. In short, appellant contends that the inquiry is whether petitioners are entitled to a cartway over the Sluder land.

The defendants, other than Sluder, did not except to or appeal from the clerk's order. The order was a final determination as to them of plaintiffs' right to a cartway. The jury of view has taken no action and no cartway has been laid off. Carried to its logical conclusion, appellant's contention seems to be that, if an adequate and proper road can be established over the Byrd and Ledford lands, plaintiffs are not entitled to a cartway across the Sluder land.

An order of a clerk of superior court adjudging the right to a cartway is a final judgment and an appeal lies therefrom. A defendant is not required to wait until a roadway is laid off before availing himself of the right to appeal, though he may, if he so elects, except to the order and defer his appeal until after the cartway has been located. Pritchard v. Scott, 254 N.C. 277, 118 S.E.2d 890; Dailey v. Bay, 215 N.C. *5 652, 3 S.E.2d 14. Once the right to a cartway has been determined, the mechanics of locating and laying it off is for the jury of viewit is for them to determine the location, its termini, and the land to be burdened thereby. G. S. § 136-69. Triplett v. Lail, 227 N.C. 274, 41 S.E.2d 755. The acts and findings of the jury of view are reviewable. Tucker v. Transou, 242 N.C. 498, 88 S.E.2d 131. Any defendant, even if he does not except to or appeal from the order for a cartway and appointment of a jury of view, may except to and have reviewed the report of the jury of view. Garris v. Byrd, supra.

Upon appeal from the clerk the trial in superior court is de novo. McDowell v. Western N. C. Insane Asylum, 101 N.C. 656, 8 S.E. 118; Warlick v. Lowman, 101 N.C. 548, 8 S.E. 120. The issue to be tried in superior court is the same as before the clerkwhether petitioners are entitled to a cartway over some lands. It involves only the elements set out in G. S. § 136-69. It does not involve the actual location of the road, or, as between defendants, whose lands shall be burdened thereby. These matters are for the jury of view, and it is error for the court to undertake to dispose of them. Garris v. Byrd, supra; Triplett v. Lail, supra. The pleadings involve more than the rights of Sluder, and issues arise upon the pleadings. General Tire & Rubber Co. v. Distributors, 253 N.C. 459, 466, 117 S.E.2d 479. Adoption of appellant's view of the matter would nullify the statute with respect to the manner of locating cartways. The court did not err in submitting the issue.

Appellant excepts to the following portion of the charge:

"* * * Members of the Jury, if the Petitioners have satisfied you from the evidence and by its greater weight that they, or some of them, are engaged in the cultivation of the Petitioners' 45 acre tract by using it for the production of apples, walnuts, grassland, or a part thereof, or are engaged in the removing of any standing timber on said tract, or a part thereof, or taking action preparatory to the operation of such enterprises, and that there is no public road or other adequate means of transportation affording necessary and proper means of ingress and egress to said 45 acre tract of the Petitioners, it would be your duty to answer the issue `Yes.' "On the other hahd, if you are not so satisfied by the evidence it would be your duty to answer the issue `No.'"

Appellant contends that the instruction is erroneous in that it does not require plaintiffs to show that it is "necessary, reasonable and just" that a cartway be established. G.S. § 136-69, after stating the factual requisites for instituting and maintaining such proceeding, provides that "if it shall be made to appear to the court necessary, reasonable and just that such person shall have a private way to a public road * * * over the lands of other persons, the court shall appoint a jury of view * * *." We have held that a petitioner's evidence must show that the proposed cartway is "necessary, reasonable and just." Rhodes v. Shelton, 187 N.C. 716, 122 S.E. 761; Warlick v. Lowman, 103 N.C. 122, 9 S.E. 458. The following excerpt from Burwell v. Sneed, 104 N.C. 118, 121, 10 S.E. 152, 153, is self-explanatory: "The plaintiff seems to have thought that, inasmuch as the jury found by their verdict that there was no public road leading to the smaller tract of land, on which the tenant resided, they should have found further as a consequence that the proposed cartway was `necessary, reasonable, and just.' This is a misapprehension of the law applicable. The petitioner is not entitled to have a cartway simply upon the ground that no public road leads to his land, or because it will be more convenient for him to have it; it must appear further that it is `necessary, reasonable, and just' that [he] shall have it * * *."

The learned trial judge in the instant case was undoubtedly influenced by the following language in Garris v. Byrd, supra: "The statute grants the right to a cartway only *6 in the event the land of petitioner is not adjacent to a public road and has no `other adequate means of transportation affording necessary and proper means of ingress thereto and egress therefrom.' If he has such means available to him at the time, the petitioner is not entitled to the relief provided by G.S. 136-69." The cartway statute has been often amended. The provisions of the statute at the time the Garris case was decided (1948) were essentially the same as when the instant case was instituted. The present statute should be compared with that set out in the second Warlick case (1889).

We do not suggest that under the present statute it is not required that petitioners satisfy the jury by the greater weight of the evidence that the proposed cartway is necessary, reasonable and just. There is no material difference, however, in requiring petitioners to show they have no "adequate means of transportation affording necessary and proper means of ingress and egress" and in requiring them to show that a cartway is "necessary, reasonable and just." The difference is only in the approach to the questionthe former has a negative and the latter an affirmative approach. The word "proper" embraces "reasonable and just." "Proper" is defined: "Sanctioned as according with equity, justice, ethics or rationale." Webster's Third New International Dictionary unabridged (1961). In law the words "proper" and "reasonable" are often used interchangeably. For cases involving similar questions, see Barber v. Griffin, supra; Mayo v. Thigpen, 107 N.C. 63, 11 S.E. 1052.

The charge could have been more detailed and comprehensive in applying the law to the facts, but considered as a whole we think it presents the material phases of the case fairly, and such errors as appear therein are not sufficiently prejudicial to overthrow the verdict. There was no request for special instructions.

No error.