{
  "id": 8655329,
  "name": "MATTHEW B. PERRY v. JOHN WHITE",
  "name_abbreviation": "Perry v. White",
  "decision_date": "1923-03-07",
  "docket_number": "",
  "first_page": "79",
  "last_page": "80",
  "citations": [
    {
      "type": "official",
      "cite": "185 N.C. 79"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [
    {
      "cite": "86 N. C., 397",
      "category": "reporters:state",
      "reporter": "N.C.",
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        11274207
      ],
      "opinion_index": 0,
      "case_paths": [
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    {
      "cite": "159 N. C., 497",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8659678
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nc/159/0497-01"
      ]
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  "last_updated": "2023-07-14T20:46:28.944101+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "MATTHEW B. PERRY v. JOHN WHITE."
    ],
    "opinions": [
      {
        "text": "Clare, 0. J.\nThe plaintiff, alleging an easement, seeks to drain the water from certain basins on bis land across the lands of defendant and into defendant\u2019s canal. the defendant denied that the plaintiff bad sucb easement or the right to drain across bis land into the canal.\nThe court charged the jury: \u201cBoth sides have tendered issues, and I have selected from both, but I confess tbat I am doubtful whether they are proper ones or not.\u201d\nIn Snowden v. Bell, 159 N. C., 497, the rule is clearly laid down tbat while the right to a private way over the lands of another may be acquired by a continuous adverse use for 20 years, a mere user for the required period is not sufficient to confer the right. It is necessary to show that the true owner had notice of the claim as one of right by direct evidence or circumstances tending to prove it. When the evidence of the use or possession of a private way over the lands of another is consistent with the contention of the true owner that it was not hostile and adverse, but permissive, the jury should- decide the question of adverse user, and it is error for the trial judge to instruct the jury to answer the issue for the one claiming the right if they believe the evidence.\nAn examination of the record and the exceptions show that this essential element whether the use of the asserted right was adverse was not submitted to the jury. The issue submitted was, \u201cHas said ditch existed and been kept up continuously for draining plaintiff\u2019s land for the past 30 years over the land of the defendant?\u201d; and the court erred in rejecting the issue which the defendant tendered as follows: \u201cIs the plaintiff entitled to drain the water from his land through the ditch over the defendant\u2019s land and into the canal across defendant\u2019s land, as alleged in the complaint?\u201d An affirmative answer to this rejected issue, submitted under proper instructions, would have established the easement. An affirmative answer to the issue submitted does not do so. No right or easement is established thereby; nothing is concluded. Issues must necessarily conclude the matter; nothing must be left to conjecture.\nConceding that the ditch had existed and been kept up continuously for draining plaintiff\u2019s land for the past 30 years over the land of the defendant, the plaintiff would not have acquired the right of easement thereby. This user may have been permissive, and the law presumes that it was. Mere user for 30 years will not confer an easement unless it appears that it was adverse. Snowden v. Bell, supra, and cases cited therein. Boyden v. Achenbach, 86 N. C., 397.\nIf the defendant had submitted to the issue as given and raised no objection, he would be estopped to object to its wording, but he did object to the issue as submitted by'the court, and tendered the court the correct issue, which was rejected, and excepted. For this error there must be a\nNew trial.",
        "type": "majority",
        "author": "Clare, 0. J."
      }
    ],
    "attorneys": [
      "Craig <& Pritchett and Daniel & Daniel for plaintiff.",
      "Winston & Matthews for defendant."
    ],
    "corrections": "",
    "head_matter": "MATTHEW B. PERRY v. JOHN WHITE.\n(Filed 7 March, 1923.)\n1. Easements \u2014 Adverse User \u2014 Issues.\nIn order to establish an easement over the lands of another for the flowing of water into a draining ditch, it is not only necessary to show a continuance of this user for twenty years, but that it was continued under a claim of adverse right, and not a permissive user; and an affirmative answer to an issue which does not establish these essential elements necessary to the right of the easement claimed, is insufficient.\n2. Issues.\nIssues must be so framed that the verdict thereon must necessarily con- \u25a0 elude the matter, and leave nothing to conjecture.\n3. Same \u2014 Appeal and Error \u2014 Objections and Exceptions \u2014 New Trials.\nWhere the court submits, over the appellant\u2019s objection, an issue to which the answer is not conclusive, and has refused a proper issue submitted by the appellant, a new trial will be ordered on appeal.\nAppeal by defendant from Allen, J., at May Term, 1922, of Bertie.\nYerdict and judgment for plaintiff. Appeal by defendant.\nCraig <& Pritchett and Daniel & Daniel for plaintiff.\nWinston & Matthews for defendant."
  },
  "file_name": "0079-01",
  "first_page_order": 145,
  "last_page_order": 146
}