{ "id": 8556524, "name": "J. T. TAYLOR, JR., and wife, DORA W. TAYLOR, Petitioners v. JOE ASKEW and wife, THELMA ASKEW, DAVID BOWEN and wife, MAXINE BOWEN, B. B. BOWEN, C. G. RESPESS and wife, MYRTLE RESPESS, H. L. RESPESS and wife, ELOISE RESPESS, BEULAH RESPESS, Widow, DEMPSEY BOWEN and wife, ALMA A. BOWEN, and HERMAN BOWEN and wife, GLADYS BOWEN, Respondents", "name_abbreviation": "Taylor v. Askew", "decision_date": "1973-03-28", "docket_number": "No. 722SC526", "first_page": "620", "last_page": "624", "citations": [ { "type": "official", "cite": "17 N.C. App. 620" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "181 S.E. 2d 192", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": -1 }, { "cite": "11 N.C. App. 386", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555083 ], "opinion_index": -1, "case_paths": [ "/nc-app/11/0386-01" ] }, { "cite": "49 S.E. 2d 625", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 343", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12165929 ], "opinion_index": 0, "case_paths": [ "/nc/229/0343-01" ] }, { "cite": "118 S.E. 2d 890", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "254 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625837 ], "opinion_index": 0, "case_paths": [ "/nc/254/0277-01" ] }, { "cite": "10 S.E. 474", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "104 N.C. 403", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8651490 ], "opinion_index": 0, "case_paths": [ "/nc/104/0403-01" ] }, { "cite": "50 S.E. 2d 912", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "229 N.C. 657", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 12167474 ], "opinion_index": 0, "case_paths": [ "/nc/229/0657-01" ] } ], "analysis": { "cardinality": 524, "char_count": 10557, "ocr_confidence": 0.488, "pagerank": { "raw": 1.007242587278462e-07, "percentile": 0.5410724717927571 }, "sha256": "4721b8e873da91b19bcc84878d98c868afe7e8019aff9660c64301b9f7ba0fe8", "simhash": "1:1f74d420698e679a", "word_count": 1774 }, "last_updated": "2023-07-14T17:26:57.402584+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Vaughn and Graham concur." ], "parties": [ "J. T. TAYLOR, JR., and wife, DORA W. TAYLOR, Petitioners v. JOE ASKEW and wife, THELMA ASKEW, DAVID BOWEN and wife, MAXINE BOWEN, B. B. BOWEN, C. G. RESPESS and wife, MYRTLE RESPESS, H. L. RESPESS and wife, ELOISE RESPESS, BEULAH RESPESS, Widow, DEMPSEY BOWEN and wife, ALMA A. BOWEN, and HERMAN BOWEN and wife, GLADYS BOWEN, Respondents" ], "opinions": [ { "text": "PARKER, Judge.\nThe statute, G.S. 136-69, which authorizes in certain cases the condemnation of a cartway for the benefit of one land owner over the lands of his neighbor, is in derogation of the rights of the owner of the land over which the cartway is to be established and must be strictly construed. Brown v. Glass, 229 N.C. 657, 50 S.E. 2d 912; Warlick v. Bowman, 104 N.C. 403, 10 S.E. 474. Accordingly, it is well settled that a petitioner is not entitled to condemn a cartway if he presently has reasonable access to a public road, Pritchard v. Scott, 254 N.C. 277, 118 S.E. 2d 890, and this is true even if such reasonable access is permissive. Garris v. Byrd, 229 N.C. 343, 49 S.E. 2d 625. \u201c[A] petitioner is not entitled to have a cartway laid out over another\u2019s land simply because it would give him a shorter and better outlet to the public road. If he already have a private way, or by parol license an unobstructed way, across the land of another, the petition should be denied, and evidence tending to show that the desired cartway would be shorter than the outlet in use should be excluded as immaterial.\u201d Warlick v. Lowman, supra.\nWhen the record in the present case is viewed in the light of these well-established principles, the judgment appealed from should be affirmed. The trial court concluded as a matter of law that petitioners had failed to show that they do not have an adequate means of ingress and egress to and from their property. This conclusion supports the judgment dismissing the proceeding and in turn is supported by the court\u2019s factual findings made on competent evidence.\nG.S. 156-93.6, enacted in 1961, provides that \u201c[a] 11 drainage districts theretofore created shall be deemed to own an easement or right of way in and to those lands upon which there are existing canals and spoil banks,\u201d and \u201c[w] henever the proposed repairs, maintenance or other improvement make it necessary for the drainage district to acquire additional land for easements or right of way, the procedure to secure the same shall be in accordance with G.S. 156-70.1.\u201d This latter statute in turn provides in part that \u201c[t]he district shall be deemed to have acquired title for the purpose of easements or rights-of-way to those areas of land identified in the final report of the board of viewers and as shown on the map accompanying said report, at the time said final report is confirmed by the clerk of the superior court.\u201d At the hearing, respondents introduced the final report of the board of viewers of the Albemarle Drainage District dated 5 December 1960 and the order confirming said report, and counsel for petitioners conceded that \u201crights of way were acquired pursuant to the authority of Chapter 156 of the General Statutes.\u201d Thus, the trial court\u2019s finding that \u201c[t]he Albemarle Drainage District owns' a right of way over the South spoil bank of the canal\u201d is fully supported by the record and by applicable statutes. There was also competent evidence to support the trial court\u2019s finding that \u201csaid right of way is suitable for use as a road subject to the necessity of placing tiles in approximately twenty farm drainage ditches which have been cut through the said spoil bank.\u201d An adjoining landowner testified that there is an existing road \u201csuitable for the passage of heavy equipment, such as combines and tractors,\u201d running on top of the spoil bank for approximately one mile, and there was competent evidence that the remaining 1.8 miles of the spoil bank could be made suitable for roadway purposes by installation of tile at the intersecting farm drainage ditches.\nWe do not agree with petitioners\u2019 contention that the powers of the Commissioners of the Drainage District were so limited that they lacked authority to grant petitioners permission to use a road over the spoil bank as a means of ingress and egress to and from petitioners\u2019 property. The construction and maintenance of such a road would be of obvious benefit to the Drainage District in carrying out its primary functions, by facilitating the repair, maintenance and improvement of its draining canal. Without attempting to delimit the exact extent of the Commissioners\u2019 authority to grant permission to others to utilize the right of way in question as a roadway, we hold that the trial court was correct in concluding that they did have lawful authority to grant petitioners such a right under the circumstances of this case.\nEvidence introduced by the parties was in sharp conflict as to the relative costs of constructing a road over the existing spoil bank as compared with the costs of constructing a new cartway to be condemned across respondents\u2019 lands. Again, we agree with the trial court that, even if petitioners\u2019 evidence in this regard be accepted as true, the conclusion is not thereby compelled that the more expensive road along the spoil bank is not \u201can adequate means of ingress and egress.\u201d Petitioners are not entitled to condemn a cartway across respondents\u2019 lands merely because this might prove the least expensive means for obtaining access to their property.\nAffirmed.\nJudges Vaughn and Graham concur.", "type": "majority", "author": "PARKER, Judge." } ], "attorneys": [ "David S. Henderson for petitioner appellants.", "Wilkinson, Vosburgh & Thompson by John A. Wilkinson for respondent appellees." ], "corrections": "", "head_matter": "J. T. TAYLOR, JR., and wife, DORA W. TAYLOR, Petitioners v. JOE ASKEW and wife, THELMA ASKEW, DAVID BOWEN and wife, MAXINE BOWEN, B. B. BOWEN, C. G. RESPESS and wife, MYRTLE RESPESS, H. L. RESPESS and wife, ELOISE RESPESS, BEULAH RESPESS, Widow, DEMPSEY BOWEN and wife, ALMA A. BOWEN, and HERMAN BOWEN and wife, GLADYS BOWEN, Respondents\nNo. 722SC526\n(Filed 28 March 1973)\n1. Highways and Cartways \u00a7 12\u2014 condemnation of cartway \u2014 absence of reasonable access\nA petitioner is not entitled to condemn a cartway if he presently has reasonable access to a public road, even if such reasonable access is permissive.\n2. Highways and Cartways \u00a7 12\u2014 cartway proceeding \u2014 failure to show absence of reasonable access\nIn this proceeding to condemn a cartway, the court\u2019s conclusion that petitioners had failed to show that they do not have an adequate means of ingress and egress to and from their property was supported by findings based on competent evidence that the commissioners of a drainage district had offered to allow petitioners to use a road over the spoil bank of a drainage canal to reach their property and that the spoil bank could be made suitable for roadway purposes by installation of tile at approximatealy 20 intersecting farm drainage ditches.\n3. Drainage \u00a7 4\u2014 drainage district commissioners \u2014 authority to permit road over spoil bank\nThe commissioners of a drainage district had authority to grant petitioners permission to use a road over the spoil bank of a drainage canal as a means of ingress and egress to and from their property since the construction and maintenance of such a road would benefit the drainage district by facilitating the repair, maintenance and improvement of its drainage canal.\n4. Highways and Cartways \u00a7 12\u2014 right to cartway \u2014 reasonable way \u2014 relative costs of construction\nPetitioners are not entitled to condemn a cartway across respondents\u2019 land merely because such cartway might be less expensive than constructing a road over the existing spoil bank of a drainage canal pursuant to an offer of the commissioners of the drainage district.\nAppeal by petitioners from Webb, Judge, 14 February 1972 Civil Session of Superior Court held in Beaufort County.\nPetitioners brought this special proceeding under G.S. 136-68 and 69 to condemn a cartway over lands of respondents to connect a tract of timberland owned by petitioners in Beaufort County with N. C. Highway 32. Petitioners alleged that they desire to cut and remove the timber from their tract and then to cultivate it; that they have no adequate means of ingress and egress; that Highway 32 lies approximately one mile west of their tract; and that an adequate and necessary cartway to said highway would cross lands of the respondents. Respondents admitted no public road leads to petitioners\u2019 land, but denied petitioners lacked other adequate way of ingress and egress. The case was once previously before this Court, and for the prior procedural history of this proceeding reference is made to the opinion of this Court rendered on the first appeal. Taylor v. Askew, 11 N.C. App. 386, 181 S.E. 2d 192.\nUpon remand from the first appeal, the Superior Court heard evidence and rendered judgment making findings of fact, including the following: Albemarle Drainage District, Beaufort County #5, has been in existence for approximatly half a century and was reorganized and reactivated just prior to 1960. It is organized under G.S. Chap. 156 and is duly functioning with a Board of Commissioners and other appropriate officials. One of the canals of said Drainage District runs along the northern boundary of petitioners\u2019 land for approximately one mile and then continues in a straight line eastwardly for approximately 2.8 miles to a paved public road. Findings of Fact No. 6 (in part), Nos. 7 and 8 are as follows:\n\u201c6. . . . The Albemarle Drainage District owns a right of way over the South spoil bank of the canal. It has at least enough right in this spoil bank to allow the petitioners to use a road over the spoil bank for means of ingress and egress.\n\u201c7. The said right of way is suitable for use as a road subject to the necessity of placing tiles in approximately twenty farm drainage ditches which have been cut through the said spoil bank. Taking as true the petitioners\u2019 evidence that the expense of building a road along this route will be substantially more than along an alternate route, the Court cannot conclude that this is not \u2018an adequate means of ingress and egress\u2019 to the property of the petitioners.\n\u201c8. The Court finds as a fact on the basis of the evidence introduced and before it for its consideration, that the Albemarle Drainage District has by resolution said that it would enter into an agreement or contract with the petitioners to allow them the use of the said roadway along the South bank of the Intercepting Canal provided the farm ditches leading across the same from the lands of Malvin Respess were adequately tiled and that the petitioners would help maintain the said roadway.\u201d\nUpon these findings of fact, the court concluded that petitioners had failed to carry the burden of showing that they do not have an adequate means of ingress and egress to and from their property and ordered this proceeding dismissed with prejudice. Petitioners appealed.\nDavid S. Henderson for petitioner appellants.\nWilkinson, Vosburgh & Thompson by John A. Wilkinson for respondent appellees." }, "file_name": "0620-01", "first_page_order": 644, "last_page_order": 648 }