{
  "id": 8625163,
  "name": "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGINS and EFFIE HODGINS",
  "name_abbreviation": "Winston Brick Manufacturing Co. v. Hodgins",
  "decision_date": "1926-11-17",
  "docket_number": "",
  "first_page": "577",
  "last_page": "580",
  "citations": [
    {
      "type": "official",
      "cite": "192 N.C. 577"
    }
  ],
  "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": "171 N. C., 445",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11270868
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/171/0445-01"
      ]
    },
    {
      "cite": "119 N. C., 710",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8655969
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/119/0710-01"
      ]
    },
    {
      "cite": "172 N. C., 848",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11255935
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/172/0848-01"
      ]
    },
    {
      "cite": "185 N. C., 162",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8655695
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/185/0162-01"
      ]
    },
    {
      "cite": "136 N. C., 65",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8658635
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/136/0065-01"
      ]
    },
    {
      "cite": "188 N. C., 414",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8653948
      ],
      "opinion_index": 0,
      "case_paths": [
        "/nc/188/0414-01"
      ]
    },
    {
      "cite": "190 N. C., 582",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8610606
      ],
      "weight": 2,
      "opinion_index": 0,
      "case_paths": [
        "/nc/190/0582-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 401,
    "char_count": 7847,
    "ocr_confidence": 0.459,
    "pagerank": {
      "raw": 2.6734938295687507e-07,
      "percentile": 0.8259942954203121
    },
    "sha256": "47553a62ea38c71a88acdd8302dbae29869fa6f9dec4dad43f6a0f865ce3c6b3",
    "simhash": "1:90f079c3f3ddee8a",
    "word_count": 1372
  },
  "last_updated": "2023-07-14T21:52:38.190415+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGINS and EFFIE HODGINS."
    ],
    "opinions": [
      {
        "text": "BkogdeN, J.\nThe plaintiff alleged in his complaint \u201cthat the defendants designated and stipulated a road a \u201cway of necessity\u201d over their own land to the public highway, the same to be used for the benefit of plaintiff, and described as follows: \u201cThis property will have road platted to 'Walkertown or paved highway.\u201d In paragraph 6 of the complaint plaintiff alleged: \u201cThat on or about 15 August, 1923, the defendant closed or caused to be closed said road or 'way of necessity\u2019 to the said tract of land.\u201d It was further alleged that, as a result of closing said \u201cway of necessity\u201d the plaintiff sustained damage because he \u201cwas surrounded and hedged in and had no outlet, and was preclu4ed from hauling material and wood for the burning of brick, and was unable to. get other land for the purpose of carrying on his work in making brick and doing other work necessary on the yard as brick-makers.\u201d\nThe defendant admitted the fourth allegation of the complaint, in which it was alleged that the defendants designated and stipulated a \u201cway of\u2019 necessity\u201d over their land.\nIt is apparent therefore that the sole cause of action alleged in the complaint was the failure of the defendant to furnish a \u201cway of necessity\u201d over his land.\nIt is further apparent that the covenant in the deed, \u201cThis property will have a road platted to Walkertown or paved highway,\u201d has been construed by the parties in their pleadings as confining the scope of this case to a \u201cway of necessity.\u201d\nThis cause was considered by the Court in Brick Co. v. Hodgin, 190 N. C., 582. Justice Varser, speaking for the Court in the former appeal, says: \u201cHowever, the parties stipulated for a \u2018way of'necessity\u2019 to the Walkertown highway, their rights thus established are the same as when \u2018a way of necessity\u2019 to the designated highway had been established in inviium. It is the right of plaintiff to pass over the defendant\u2019s lands, owned by him 2 February, 1923 (the date of the deed), to the Walkertown highway. The vendor selects the way and if he fails to select, the vendee may select. This way is one of necessity, and therefore not one of convenience.\u201d\nThis declaration of the law contains three distinct and clear cut propositions:\n1. The parties contracted for a way of necessity over the land of defendant, owned by him the date the deed was executed and delivered.\n2. The vendor has a right to select the way.\n3. The convenience of the parties claiming a \u201cway of necessity\u201d is not the controlling consideration.\nJustice Varser says further: \u201cOf necessity such a road may be located, according to the evidence, in more than one place, and the contract for such a road would be satisfied when the necessity, and not the convenience, is met.\u201d\nThe theory upon which the case was tried, as reported in 190 N. C., 582, and the theory upon which the present case has been tried, was that the space known as Jefferson Street was a \u201cway of necessity\u201d to which the plaintiff was entitled, and that the defendant had closed or obstructed said \u201cway of necessity.\u201d In the former appeal the Court declared the principles of law governing the rights of the parties. \u201cA decision by the Supreme Court on a, prior appeal, constitutes the law of the case, both in subsequent proceedings in the trial court and on a subsequent appeal.\u201d Stacy, J. Ray v. Veneer Co., 188 N. C., 414. See, also, Harrington v. Rawls, 136 N. C., 65; Nobles v. Davenport, 185 N. C., 162.\nThe present record discloses the fact that the space known and designated as Jefferson Street was not a public road, but was the property of H. O. Dixon, who testified that he owned all the land designated as Jefferson .Street and had owned it since 1921. Therefore, Jefferson Street did not cross tbe property of tbe defendant at all, bence, under tbe decision in tbe former case, and under tbe pleadings appearing in tbe record, tbe defendant discharged bis obligation to tbe plaintiff wben be platted across tbe land owned by bim on 2 February, 1923, a reasonably proper outlet for tbe plaintiff. \u201cIt bas been tbe invariable rule witb us to bear a cause bere according to tbe theory upon which it was tried in tbe Superior Court.\u201d Webb v. Rosemond, 172 N. C., 848; Allen v. R. R., 119 N. C., 710; Coble v. Barringer, 171 N. C., 445; Shipp v. Stage Lines, ante, 475.\nTherefore, it appearing that tbe cause of action alleged in tbe complaint was based solely and entirely upon a \u201cway of necessity\u201d across tbe land of tbe defendant, and it further appearing that tbe defendant bas provided a way across bis land, tbe judgment of tbe trial judge was correct.\nNo error.",
        "type": "majority",
        "author": "BkogdeN, J."
      }
    ],
    "attorneys": [
      "F. W. Williams, R. M. Weaver and Hastings & Booe for plaintiff.",
      "Walter FJ. Brock for defendants."
    ],
    "corrections": "",
    "head_matter": "WINSTON BRICK MANUFACTURING COMPANY v. GEORGE D. HODGINS and EFFIE HODGINS.\n(Filed 17 November, 1926.)\n1. Roads and Highways \u2014 Cartways\u2014Ways of Necessity \u2014 Deeds and Conveyances.\nWhere a conveyance of lands provides for an outlet or way of necessity to a public road, to be designated, the grantor has the right of locating it, and upon his failure to do so, this right in proper instances may be exercised by the grantee, but the grantee may not successfully claim that a private road belonging to a third person, and existent at the time, should be continued, there being nothing in the deed, covenant or contract that would uphold this view. Ways of convenience distinguished.\n2. Same \u2014 Questions of Law \u2014 Issues\u2014Questions for Jury.\nAYhere a deed to lands provides for a roadway, or way of necessity, . over the grantor\u2019s land, the interpretation thereof is one of law, and presents no issue for the jury to determine.\n3. Appeal and Error \u2014 Review\u2014Trial\u2014Record\u2014Pleadings\u2014Evidence.\nOn appeal, the Supreme Court will review the case upon the- theory that it was tried in the Superior Court as disclosed by the complaint and evidence of record.\nCivil action, before Raper, J., at February Term, 1926, of FonSYTH.\nOn 2 February, 1923, the defendants conveyed to the plaintiff six acres of land. The defendants owned other land extending from the tract sold plaintiff, northward to the right of way of the N. & W. R. R. The deed from defendants to plaintiff contained this clause: \u201cThis property will have a road platted to \"Walkertown or paved highway.\u201d The 'Walk'ertown or paved highway referred to is north of the right of way of the N. & W. R. R. Hence the defendants owned land between the plaintiff\u2019s land and the south side of the right of way of the N. & W. R. R., and-therefore in order to reach walkertown or paved highway, it would be necessary for him to cross defendants' land and the southern right of way of the railroad, the railroad itself, and the northern right of way of the railroad. The defendant platted a street called Garden Street from the .plaintiff\u2019s land northward to the right of way of the railroad, which street was laid out across the entire property owned by the defendants, between plaintiff\u2019s land and the railroad right of way. It was contended by the plaintiff that there was an old road known as Jefferson Street and parallel with Garden Street and situated about 314 feet west of said Garden Street. This Jefferson Street crossed the railroad right of way and the railroad track. It does not appear from the record whether this was a public crossing or not. The plaintiff alleged that the defendant had closed or obstructed this space known as Jefferson Street, and that by reason thereof plaintiff had no outlet to the paved highway, and as a result of the closing of the space known as Jefferson Street, it became necessary for plaintiff to discontinue his brick plant because of lack of access thereto. The defendant contended that Garden Street was opened up entirely across his land to the railroad right of way.\nAt the conclusion of plaintiff\u2019s evidence there was a judgment of nonsuit, and the plaintiff appealed.\nF. W. Williams, R. M. Weaver and Hastings & Booe for plaintiff.\nWalter FJ. Brock for defendants."
  },
  "file_name": "0577-01",
  "first_page_order": 651,
  "last_page_order": 654
}