{ "id": 8568178, "name": "JOHN T. TAYLOR, JR., Petitioner v. WEST VIRGINIA PULP & PAPER COMPANY, Respondent", "name_abbreviation": "Taylor v. West Virginia Pulp & Paper Co.", "decision_date": "1964-09-23", "docket_number": "", "first_page": "452", "last_page": "457", "citations": [ { "type": "official", "cite": "262 N.C. 452" } ], "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": "117 S.E. 2d 795", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "253 N.C. 637", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626680 ], "opinion_index": 0, "case_paths": [ "/nc/253/0637-01" ] }, { "cite": "140 S.E. 612", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "194 N.C. 663", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615672 ], "opinion_index": 0, "case_paths": [ "/nc/194/0663-01" ] }, { "cite": "70 S.E. 2d 680", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "235 N.C. 431", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8625382 ], "opinion_index": 0, "case_paths": [ "/nc/235/0431-01" ] }, { "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" ] }, { "cite": "27 S.E. 2d 534", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "223 N.C. 520", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8612556 ], "opinion_index": 0, "case_paths": [ "/nc/223/0520-01" ] }, { "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": "130 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 62", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559213 ], "opinion_index": 0, "case_paths": [ "/nc/259/0062-01" ] }, { "cite": "60 N.C. 200", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "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": "102 S.E. 2d 779", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "248 N.C. 203", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621375 ], "opinion_index": 0, "case_paths": [ "/nc/248/0203-01" ] }, { "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": "209 F. 2d 698", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 557583 ], "opinion_index": 0, "case_paths": [ "/f2d/209/0698-01" ] }, { "cite": "114 F. Supp. 95", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4234832 ], "opinion_index": 0, "case_paths": [ "/f-supp/114/0095-01" ] }, { "cite": "38 S.E. 900", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "128 N.C. 600", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661613 ], "opinion_index": 0, "case_paths": [ "/nc/128/0600-01" ] }, { "cite": "48 S.E. 586", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "136 N.C. 603", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8661451 ], "opinion_index": 0, "case_paths": [ "/nc/136/0603-01" ] } ], "analysis": { "cardinality": 639, "char_count": 13636, "ocr_confidence": 0.555, "pagerank": { "raw": 1.1278396941767007e-07, "percentile": 0.5750366141037566 }, "sha256": "d12d9368e663adf442be6bdab4f30a484c7a9a97c5e78b490e66bb41a38ef929", "simhash": "1:eb73544b96ecbe01", "word_count": 2342 }, "last_updated": "2023-07-14T22:57:24.361559+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "JOHN T. TAYLOR, JR., Petitioner v. WEST VIRGINIA PULP & PAPER COMPANY, Respondent." ], "opinions": [ { "text": "Shaep, J.\nThe assignments of error properly made raise only this dual question: Are the judge\u2019s findings of fact supported by the evidence and, if so, do they support the judgment?\nAs one taking action preparatory to cutting and removing standing timber from his land, petitioner is entitled to condemn a cartway over respondent\u2019s property, provided (1) there is no public road or other adequate means of transportation affording him necessary and proper access to his own property, and (2) he satisfies the court that it is necessary, reasonable and just that he have such a private way. G.S. 136-69. Respondent\u2019s evidence that ten years ago logs were transported over the sixty-foot easement to Mill Tail Creek and rafted down it to Alligator River is sufficient to sustain his Plonor\u2019s finding of fact that Mill Tail Creek is a navigable stream. \u201cIf a stream is \u2018navigable in fact ... it is navigable in law.\u2019 Gould on Waters, (3 Ed.), sec. 67. The capability of being used for purposes of trade and travel in the usual and ordinary modes is the test and not the extent and manner of such use.\u201d State v. Twiford, 136 N.C. 603, 48 S.E. 586; accord, State v. Baum, 128 N.C. 600, 38 S.E. 900; Swan Island Club, Inc. v. White, 114 F. Supp. 95 (E.D.N.C.), aff\u2019d sub nom. Swan Island Club, Inc. v. Yarbrough, 209 F. 2d 698 (4th Cir.). There is no evidence in the record to suggest that Mill Tail Creek is not still navigable. Therefore, it appears that petitioner does, in fact, have access to his lands albeit by water. If such access affords adequate and proper means of ingress and egress he is not entitled to another and different way by land even though it would prove more convenient and economical. Pritchard v. Scott, 254 N.C. 277, 118 S.E. 2d 890; Kanupp v. Land, 248 N.C. 203, 102 S.E. 2d 779; Warlick v. Lowman, 104 N.C. 403, 10 S.E. 474; Plimmons v. Frisby, 60 N.C. 200.\nPetitioner argues that the \u201cfacts epitomize the necessity, reasonableness, and justice of a cartway from petitioner\u2019s land to and over respondent\u2019s existing road (Mill Tail Road) to the public road,\u201d and that the court erred in not so finding. We hold otherwise. Even a petitioner qualifying under G.S. 136-69 for a private way over the lands of another is not entitled to select his route or to use existing private roads on a respondent\u2019s land as a matter of right, however expedient and economical their use would be to him. The location of the way is the task of a jury of view, but its acts are reviewable by the court. Candler v. Sluder, 259 N.C. 62, 130 S.E. 2d 1; Garris v. Byrd, 229 N.C. 343, 49 S.E. 2d 625. Mill Tail Road, over which petitioner seeks to acquire an easement, has been constructed and is maintained by respondent at great cost. Its use by petitioner as a logging road would increase both maintenance and supervision costs for respondent and, once established as a cartway for petitioner\u2019s use, it would also become a quasi-public road. Parsons v. Wright, 223 N.C. 520, 27 S.E. 2d 534.\nIf the Pulp and Paper Company had constructed no roads whatever on its property and Taylor required a road across it, he would perforce have to construct his own road. Unless the only avenue over a respondent\u2019s land reasonably adequate for access to a petitioner\u2019s property happened to be a road already constructed by the respondent, a petitioner entitled to a cartway would have no right, as a matter of law, to the use of that particular road. Otherwise, a petitioner is in no more favored a position because a respondent has constructed a road across his property than he would be if no such road existed. G.S. 136-68 and G.S. 136-69 are in derogation of the rights of private property and must be strictly construed. Brown v. Glass, 229 N.C. 657, 50 S.E. 2d 912.\nThe judge who heard the evidence upon the parties\u2019 waiver of a jury trial has found that Taylor has adequate means of access for the removal of his timber by the sixty-foot right of way appurtenant to his tract and by Mill Tail Creek. A navigable stream is a public highway. Gaither v. Hospital, 235 N.C. 431, 70 S.E. 2d 680; Cromartie v. Stone, 194 N.C. 663, 140 S.E. 612. Certainly, access to a navigable stream would not in every instance afford an adequate outlet for the purposes enumerated in G.S. 136-69 and thus preclude relief under it. Here, however, the judge has found that it does. He has also found that respondent\u2019s offer to petitioner of an easement to either Highway 64 or Highway 264 over its lands, other than by its private roads, provides for petitioner another adequate and proper means of ingress and egress for the removal of his timber. An adequate permissive way meets the requirements of G.S. 136-69. Garris v. Byrd, supra.\nThe court\u2019s ruling that petitioner has failed to establish that it is necessary, reasonable, and just that he have a cartway over the lands of respondent necessarily followed its finding that the petitioner already has an adequate way or ways. The court\u2019s findings are supported by competent evidence and are therefore as conclusive as the verdict of a jury. Petitioner simply failed to carry his burden of proof to the satisfaction of the judge below, and both he and we are bound by the judge\u2019s findings. In re Annexation Ordinances, 253 N.C. 637, 117 S.E. 2d 795.\nIn the trial below we find\nNo error.", "type": "majority", "author": "Shaep, J." } ], "attorneys": [ "LeRoy, Wells & Shaw for petitioner.", "Rodman and Rodman for respondent." ], "corrections": "", "head_matter": "JOHN T. TAYLOR, JR., Petitioner v. WEST VIRGINIA PULP & PAPER COMPANY, Respondent.\n(Filed 23 September, 1964.)\n1. Highways \u00a7 12\u2014\nA land owner is entitled to establish a cartway over the lands of another if he has no proper access to a public way and if he satisfies the court \u25a0that it is necessary, reasonable and just that he have such private way. G.S. 136-69.\n2. Water and Water Courses \u00a7 5\u2014\nA stream navigable in fact is navigable in law, and its capacity for trade and travel in the usual and ordinary modes is the test and not the extent or manner of such use, and therefore evidence that logs were rafted down a creek to a river is sufficient to sustain a finding that the creek is navigable.\nS.Highways \u00a7 12 \u2014\nA person entitled to a private way across the lands of another under G.S. 136-69 is not entitled as a matter of law to select his route or to access to existing private roads on respondent\u2019s land, regardless of how expedient and economical the use of the private roads would be to him, but the location of the right of way is the task of a jury of view with its determination reviewable by the court.\n4. Same\u2014\nThe statutes providing for the establishment of cartways reasonably necessary for access to a public road are in derogation of the rights of private property and must be strictly construed. G.S. 136-68, G.S. 136-69.\n5. Water and Water Courses \u00a7 5\u2014\nA navigable stream is a public way.\n6. Highways \u00a7 12\u2014\nPetitioner instituted this proceeding to establish a cartway over the lands of respondent to transport his timber to market. The evidence disclosed that petitioner had access to a navigable creek and that timber had theretofore been transported by means of the creek. Held,: While access to a navigable stream would not in every instance be sufficient, the finding of the court that in this particular situation such means of transportation was adequate is conclusive when supported by evidence, and the existence of such adequate access precludes the relief sought. G.S. 136-69.\n7. Same\u2014\nPetitioner, for the purpose of transporting timber to market, sought a cartway to private roads on respondent\u2019s land with right to use the private roads to the public highway. Respondent offered to permit petitioner the right to construct a cartway by the shortest route to either one or the other of the public highways adjacent respondent\u2019s land. Held: The tender of an adequate permissive way meets the requirements of G.S. 136-69, and petitioner is not entitled to connect with respondent\u2019s private roads.\nAppeal by petitioner from Cowper, J., January 1964 Session of Daee.\nProceeding under G.S. 136-69 to condemn a cartway.\nPetitioner (Taylor) and respondent (Pulp & Paper Company) both own timberland in Dare County. Petitioner\u2019s tract contains approximately 1,600 acres and is entirely surrounded by respondent\u2019s tract of about 612,000 acres. U. S. highways No. 64 and No. 264 traverse respondent\u2019s property, but no public road touches petitioner\u2019s property.\nMeasured from the closest point, petitioner\u2019s property is approximately 6% miles south from Highway No. 64 and 5% miles west from No. 264. Respondent has constructed a number of dirt roads into and around its property for the purpose of cutting and removing timber and pulpwood, suppressing fixe, and reforesting. Some of these roads connect with highways No. 64 and No. 264 and extend to points not far distant from petitioner\u2019s tract, the nearest being approximately 150 yards from it. Occasionally during the hunting season respondent\u2019s roads are open to hunters. Otherwise, the public is prohibited from using them and they are obstructed by locked cables. The hazard of fire is always a major concern to respondent.\nPetitioner, desirous of cutting and marketing timber and pulpwood from his property, instituted this proceeding for the avowed purpose of having laid off to him a cartway \u201cleading from the nearest boundary of petitioner\u2019s lands in a generally northern direction to and over the dirt road heretofore constructed and used by defendant to the public highway.\u201d He alleged that he had no reasonable access to his property except across the lands of respondent. Answering, respondent' denied that it was necessary for petitioner to have a cartway over its property. It alleged that he already had adequate access over a sixty-foot right of way leading from the northwest corner of his tract over respondent\u2019s land to Mill Tail Creek, a navigable stream emptying into Alligator River. In its answer, however, it tendered him the use of a designated thirty-foot strip of land across its property to Highway No. 264 for the purpose of constructing a road to be used jointly by the parties for five years. At the end of that time all petitioner\u2019s rights in the road would end.\nBy reply, petitioner admitted that he owned a sixty-foot right of way to Mill Tail Creek, but averred that it was neither practical nor economically feasible to remove timber by this route. He also alleged that to build a road over the right of way tendered by respondent would be \u201ceconomically impossible when considered with the amount of land and timber owned by petitioner.\u201d\nThe parties waived hearing before the clerk and agreed that -the proceeding should be transferred to the Superior Court, where the judge should determine all issues of fact arising on the pleadings. Upon the trial petitioner\u2019s evidence tended to show:\nThere are 1.5 million feet of merchantable timber on his tract, which is swampland. He desires to cut the timber now mature and to grow future crops of timber. It is almost a mile from his land to Mill Tail Creek. To log over his appurtenant easement, he would have to build \u25a0 a railroad or a canal to the creek and employ a tug or a motor-driven barge to transport the logs from there to Alligator River. It would be more economical to log his tract with trucks over respondent\u2019s existing roads than to barge the logs. The market value of his timber would not justify the expense of building the road which respondent suggested.\nRespondent\u2019s evidence tended to show:\nIn 1951 or 1952 logs were taken, by a railroad constructed to Mill Tail Creek, over the sixty-foot easement from the northwestern corner of the tract petitioner now owns. From there they were rafted to a sawmill at Buffalo City. In 1954, approximately four million feet of pine were taken from a tract immediately to the west of the Taylor property over the same right of way to Mill Tail Creek, whence to Elizabeth City by barges.\nRespondent\u2019s lands are bounded on the north by Albemarle Sound, on the west by Alligator River, and on the east by Croatan Sound. Because of the swampy terrain and large areas of peat soil, road-building costs have varied from three to ten thousand dollars a mile. Both construction and maintenance costs are extremely high, and the roads cannot be used at certain times of the year. When in use at any time they require constant repairs. The road petitioner is most eager to use, Mill Tail Road, runs 8-4/10 miles across its property from Highway No. 64 almost to petitioner\u2019s land. Respondent objects to petitioner\u2019s use of any of the roads which it has constructed.\nDuring the trial, respondent stipulated that it will permit petitioner to construct a cartway over its lands, other than over its -private roads, from the nearest point on his land to either Highway 264 or Highway 64, provided the road be constructed not more than thirty feet in width and respondent be permitted to use it in common with petitioner. At the conclusion of the evidence the judge made detailed findings of fact, which included (1) that the sixty-foot right of way from petitioner\u2019s lands across respondent\u2019s lands to Mill Tail Creek affords petitioner adequate means of transportation for the removal of timber from his lands as contemplated by G.S. 136-69, and (2) that respondent\u2019s tender of an easement also meets the requirements of G.S. 136-69 as a necessary and proper access to petitioner\u2019s lands.\nPursuant to these findings, Judge Cowper concluded as a matter of law that respondent is not entitled to the establishment of any cartway or to the use of any of respondent\u2019s private roads. From the order dismissing the proceedings, the petitioner appealed.\nLeRoy, Wells & Shaw for petitioner.\nRodman and Rodman for respondent." }, "file_name": "0452-01", "first_page_order": 496, "last_page_order": 501 }