{
  "id": 8547030,
  "name": "LEO B. NEASHAM and wife, WINNIFRED NEASHAM v. JOHN D. DAY and wife, DORIS DAY",
  "name_abbreviation": "Neasham v. Day",
  "decision_date": "1977-09-07",
  "docket_number": "No. 7630SC958",
  "first_page": "53",
  "last_page": "56",
  "citations": [
    {
      "type": "official",
      "cite": "34 N.C. App. 53"
    }
  ],
  "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": "173 S.E. 2d 589",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "weight": 2,
      "year": 1970,
      "pin_cites": [
        {
          "page": "591"
        }
      ],
      "opinion_index": 0
    },
    {
      "cite": "8 N.C. App. 58",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8548915
      ],
      "year": 1970,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/8/0058-01"
      ]
    },
    {
      "cite": "225 S.E. 2d 833",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
    },
    {
      "cite": "290 N.C. 308",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8561061,
        8561029,
        8561098,
        8561046,
        8561079
      ],
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/nc/290/0308-03",
        "/nc/290/0308-01",
        "/nc/290/0308-05",
        "/nc/290/0308-02",
        "/nc/290/0308-04"
      ]
    },
    {
      "cite": "224 S.E. 2d 654",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
    },
    {
      "cite": "29 N.C. App. 498",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8556379
      ],
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/29/0498-01"
      ]
    },
    {
      "cite": "184 S.E. 2d 65",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1971,
      "opinion_index": 0
    },
    {
      "cite": "12 N.C. App. 519",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8550783
      ],
      "year": 1971,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/12/0519-01"
      ]
    },
    {
      "cite": "194 S.E. 2d 1",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "282 N.C. 610",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8568004
      ],
      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
        "/nc/282/0610-01"
      ]
    },
    {
      "cite": "221 S.E. 2d 316",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1976,
      "opinion_index": 0
    },
    {
      "cite": "289 N.C. 260",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8567883
      ],
      "year": 1976,
      "opinion_index": 0,
      "case_paths": [
        "/nc/289/0260-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 358,
    "char_count": 6101,
    "ocr_confidence": 0.805,
    "pagerank": {
      "raw": 5.547729923529181e-07,
      "percentile": 0.9470256760143159
    },
    "sha256": "8d3cd7dfbca8fda38847ed18cd03d0fb5def966ee414eec8f35b38ef39d86c95",
    "simhash": "1:d763275f2c672c6d",
    "word_count": 1021
  },
  "last_updated": "2023-07-14T20:28:15.830309+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Martin concur."
    ],
    "parties": [
      "LEO B. NEASHAM and wife, WINNIFRED NEASHAM v. JOHN D. DAY and wife, DORIS DAY"
    ],
    "opinions": [
      {
        "text": "ARNOLD, Judge.\nOnly one assignment of error is contained in the record on appeal:\n\u201cThe Court erred in denying the defendants\u2019 Motions for a Directed Verdict at the close of plaintiffs\u2019 evidence and renewed at the closing of all the evidence.\nDefendants\u2019 Exceptions No. 1 and 2\u201d\nIn an action tried without a jury the appropriate motion by which defendants test the sufficiency of plaintiffs\u2019 evidence is by motion for dismissal. G.S. 1A-1, Rule 41(b). However, this Court may elect to consider defendants\u2019 motions for directed verdict as motions to dismiss in order to pass on the merits of this appeal. Whitaker v. Earnhardt, 289 N.C. 260, 221 S.E. 2d 316 (1976).\nA motion to dismiss made pursuant to Rule 41(b) permits the trial judge to weigh the evidence, to find facts against the plaintiff, and to sustain defendant\u2019s motion at the conclusion of plaintiff\u2019s evidence even though plaintiff may have made out a prima facie case which could have precluded a directed verdict for defendant in a jury case. Helms v. Rea, 282 N.C. 610, 194 S.E. 2d 1 (1972). Under Rule 41(b), the trial judge may decline to render judgment until all the evidence is in. The practice of withholding judgment until all the evidence has been presented is considered the better practice \u201cexcept in the clearest cases.\u201d Helms v. Rea, supra.\nThe question raised by defendants\u2019 motion to dismiss made at the close of all the evidence is whether any findings of fact could be made from the evidence which would support a recovery for plaintiffs. Pegram-West, Inc. v. Homes, Inc., 12 N.C. App. 519, 184 S.E. 2d 65 (1971). If such findings can be made the motion to dismiss must be denied.\nIn the case at bar, competent evidence introduced by plaintiffs tended to show that the Claude Hunter and Lawton Zachary roads were excepted from the deed which conveyed property to defendants, and this evidence is sufficient to justify a finding of fact in support of judgment for plaintiffs. Hence, there is no basis for defendants\u2019 contentions that denial of their motions was error. Defendants\u2019 Assignment of Error is, therefore, without merit.\nDefendants also undertake to attack the conclusions of law reached by the trial court as being unsupported by the findings of fact. Under App. R. 10(b)(2) defendants\u2019 contentions will not be considered on this appeal. There are no exceptions, and no assignments of error, in the record on appeal to any conclusions of law or findings of fact. App. R. 10(b)(2), in pertinent part, provides: \u201cA separate exception shall be set out to the making or omission of each finding of fact or conclusion of law which is to be assigned as error.\u201d Koehring Co. v. Marine Corp., 29 N.C. App. 498, 224 S.E. 2d 654 (1976); pet. denied 290 N.C. 308, 225 S.E. 2d 833 (1976). Also, see Fetherbay v. Motor Lines, 8 N.C. App. 58, 173 S.E. 2d 589 (1970), where this Court noted that the State Constitution gives exclusive authority to the Supreme Court to make rules of practice and procedure for the appellate division, and even where the North Carolina General Statutes conflict with Rules of Appellate Procedure, .the Rules of Appellate Procedure will prevail. Id. at 60, 173 S.E. 2d at 591.\nAffirmed.\nJudges Parker and Martin concur.",
        "type": "majority",
        "author": "ARNOLD, Judge."
      }
    ],
    "attorneys": [
      "No brief filed for plaintiff appellee.",
      "McKeever, Edwards, Davis & Hays, by George P. Davis, Jr., for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "LEO B. NEASHAM and wife, WINNIFRED NEASHAM v. JOHN D. DAY and wife, DORIS DAY\nNo. 7630SC958\n(Filed 7 September 1977)\n1. Rules of Civil Procedure \u00a7 41\u2014 trial by judge without jury \u2014 motion to dismiss\nA motion to dismiss made pursuant to Rule 41(b) permits the judge to weigh the evidence, to find facts against the plaintiffs, and to sustain defendants\u2019 motion at the conclusion of plaintiffs\u2019 evidence even though plaintiffs may have made out a prima facie case which could have precluded a directed verdict for defendants in a jury case; however, the practice of withholding judgment until all the evidence has been presented is considered the better practice except in the clearest cases.\n2. Highways and Cartways \u00a7 12.2\u2014 deed excepting roads \u2014 obstruction by landowner improper\nIn an action to enjoin defendants from interfering with plaintiffs\u2019 use of roads for access to their property, the trial court properly determined that defendants had no right, title or interest in the roads except as joint users with other landowners where the evidence tended to show that the roads were excepted from the deed which conveyed property to defendants.\nAppeal by defendants from Snepp, Judge. Judgment entered 29 June 1976 in Superior Court, JACKSON County. Heard in the Court of Appeals 23 August 1977.\nPlaintiffs\u2019 complaint alleges that defendants improperly interfered with plaintiffs\u2019 use of a public road known as the \u201cClaude Hunter and Lawton Zachary Roads\u201d which plaintiffs use for access to their residence. In support of their contention that defendants do not own the road plaintiffs incorporate defendants\u2019 deed \u201cexcepting and reserving from the operation of this deed . . . [t]he Main State Road and the Claude Hunter and Lawton Zachary Roads, as they are not (sic) located on and upon said lands . . . Plaintiffs further allege that roads have been opened and used by area residents and the public for over forty years, and they seek a declaration of right-of-way and an injunction against defendants\u2019 further interference with the road.\nDefendants allege that the roads have not been used by the public since 1964 when they purchased their property. They deny the validity of the exception in their deed and further allege that the exception gives plaintiffs no rights to use the road, and that plaintiffs\u2019 use of the road has been with defendants\u2019 knowledge and consent. Defendants deny that plaintiffs have established an easement by prescription.\nThe trial court sitting without a jury concluded that defendants have no right, title, or interest in the Claude Hunter and Lawton Zachary roads except as joint users with other adjacent landowners. Defendants were enjoined from further interference with the use of the road and they appeal.\nNo brief filed for plaintiff appellee.\nMcKeever, Edwards, Davis & Hays, by George P. Davis, Jr., for defendant appellant."
  },
  "file_name": "0053-01",
  "first_page_order": 81,
  "last_page_order": 84
}