State ex rel. Transportation Advisory Commission v. Canady, 203 N.C. 195 (1932)

Sept. 21, 1932 · Supreme Court of North Carolina

203 N.C. 195

STATE OF NORTH CAROLINA Ex Rel. TRANSPORTATION ADVISORY COMMISSION v. J. W. CANADY et al.

(Filed 21 September, 1932.)

Appeal and Error K c — Petition to rehear this case is denied.

Where a petition to rehear a case is based upon the insufficiency of the evidence of defendant’s title to the lands in controversy, and the matter has been considered on the appeal and it appears from the admissions of the parties, the manner of trial, and the evidence that the petition should be dismissed it will be so ordered. '

PbtitiON by plaintiff to rehear this ease, reported in 202 N. C., 840.

I. M. Bailey, John D. Warticle and Nere E. Day for petitioner.

I. G. Wright for respondents.

Stacy, C. J.

The point presently mooted is the sufficiency of the evidence to show title in the defendants to the locus in quo. We were not inadvertent to this assignment on the original hearing, albeit the argument was confined principally to whether the oyster bed in question was covered by navigable or nonnavigable waters.

Considering the manner in which the case was tried, the admissions and other matters appearing of record, we are of opinion that the petition to rehear should be dismissed.

In the original petition, filed by the petitioner herein, the property was described by metes and bounds, alleged to be owned by J. W. Canady, and to contain 12.34 acres, more or less. On the hearing it was admitted, as appears from the charge and the judgment, “that 12.34 is the acreage of the land covered by water described in the petition.” It was also in evidence that the defendant, and those under whom he claims, had been in possession of the oyster garden in question for forty or forty-five years.

Petition dismissed.