Austin v. Willis, 205 N.C. 831 (1933)

Sept. 20, 1933 · Supreme Court of North Carolina

205 N.C. 831

ROBERT S. AUSTIN v. TINE WILLIS.

(Filed 20 September, 1933.)

Appeal by defendant from Barnhill, J., at May Term, 1933, of Dare. No error.

The object of the action is to enjoin the defendant from interfering with the plaintiff’s use of a certain road and to require the removal of obstructions placed on it by the defendant. The jury returned the following verdict:

1. Is the plaintiff the owner and entitled to the possession of the tract of land described in paragraph 1 of the complaint, as alleged? Answer: Yes.

2. If so, is the plaintiff the owner of an easement appurtenant to said tract of land described in paragraph 1 of the complaint, as a driveway from said tract of land to the neighborhood road and thence to the public road as the same is now laid out and in use? Answer: Yes.

3. If so, did the defendant wrongfully obstruct said driveway, as alleged? Answer: Yes.

Judgment for plaintiff; appeal by defendant.

M. B. Simpson for appellant.

Worth & Horner for appellee.

Pee CubiaM.

Tbe only question raised by tbe defendant is whether the evidence justifies the finding that the plaintiff has an easement in the driveway described in the complaint as appurtenant to his land. It is insisted that the user must be “adverse and of right,” as pointed out in Mebane v. Patrick, 46 N. C., 23; that the plaintiff has failed to show that the defendant had knowledge of any claim of right to the asserted easement; and that the action should have been dismissed. We think there is sufficient evidence to sustain the finding; and the charge as to adverse user is clear, explicit, and free from error.

No error.