Campbell v. Connor

335 S.E.2d 788 (1985)

C.A. CAMPBELL v. Evelyn CONNOR and husband, Jack Connor, and John T. Henderson.

No. 8522SC103.

Court of Appeals of North Carolina.

November 5, 1985.

*789 Pope, McMillan, Gourley & Kutteh by William H. McMillan, Statesville, for petitioner-appellee.

McElwee, McElwee, Cannon & Warden by E. Bedford Cannon, Statesville, for respondent-appellants.

WHICHARD, Judge.

Respondents contend the court erred in denying their motion for a directed verdict made at the close of petitioner's evidence and renewed at the close of all the evidence. A motion for a directed verdict must state the specific grounds therefor. N.C.Gen.Stat. 1A-1, Rule 50(a). The record does not include either a written statement of the grounds for the motion or a transcript of oral arguments made in support of the motion. See Hensley v. Ramsey, 283 N.C. 714, 726, 199 S.E.2d 1, 8 (1973). As petitioner does not raise this omission, however, and both parties argue the sufficiency of the evidence in their briefs, we elect to waive this requirement and reach the merits of respondents' contention. See Pallet Co. v. Truck Rental, Inc., 49 N.C.App. 286, 288-89, 271 S.E.2d 96, 97 (1980).

The denial of respondents' motion for a directed verdict is error if the evidence, viewed in the light most favorable to petitioner, fails to support each of the elements necessary to prove that petitioner is entitled to a cartway pursuant to N.C.Gen. Stat. 136-69. See Oshita v. Hill, 65 N.C. App. 326, 329, 308 S.E.2d 923, 925-26 (1983); N.C.Gen.Stat. 1A-1, Rule 50. Petitioner is entitled to a cartway upon proof that (1) the land in question is used for one of the purposes enumerated in the statute, (2) the land is without adequate access to a public road or other adequate means of transportation affording necessary and proper ingress and egress, and (3) the *790 granting of a private way over the lands of other persons is necessary, reasonable and just. N.C.Gen.Stat. 136-69; Taylor v. Paper Co., 262 N.C. 452, 456, 137 S.E.2d 833, 835 (1964). N.C.Gen.Stat. 136-69 infringes on the rights of private property owners and must be strictly construed. Candler v. Sluder, 259 N.C. 62, 65, 130 S.E.2d 1, 4 (1963); Taylor v. Askew, 17 N.C.App. 620, 622, 195 S.E.2d 316, 317-18 (1973). Thus, a proposed cartway may not be approved simply because it is more convenient or less expensive than alternative outlets to a public road available for use by petitioner. Warlick v. Lowman, 103 N.C. 122, 124, 9 S.E. 458, 459 (1889) (more convenient); Taylor, 17 N.C.App. at 624, 195 S.E.2d at 319 (less expensive). To obtain a cartway alternative outlets must be shown to be inadequate. See Garris v. Byrd, 229 N.C. 343, 49 S.E.2d 625 (1948).

Viewed in the light most favorable to petitioner, the evidence is sufficient to establish that he is presently cultivating the land in question, a use which brings the land within the scope of N.C.Gen.Stat. 136-69. In addition the evidence is sufficient to establish that while petitioner has a permissive right of way across the land of a neighbor, the respondent in this action who did not appeal, that right of way does not provide petitioner with adequate ingress and egress. There is also evidence sufficient to establish that while approximately 100 feet of petitioner's land fronts public highway 901, due to the steep grade of the slope which leads from the highway it is presently impossible for petitioner to move necessary equipment directly from highway 901 to his property and from his property to the highway. Petitioner testified that there is a steep fifteen to twenty-five foot drop from the shoulder of the highway to his land. In addition a drainage culvert which lies under the highway empties water onto petitioner's land. As a result water collects at the bottom of the slope after rain.

There is, however, no evidence regarding the feasibility of creating direct access from petitioner's land to highway 901. In Taylor this Court upheld the dismissal of a proceeding to establish a cartway where petitioner's permissive easement could have been made suitable by "`placing tiles in approximately twenty farm drainage ditches....'" 17 N.C.App. at 621, 195 S.E.2d at 317. Regarding the relative costs of improving petitioner's existing permissive easement and constructing an outlet across the land of respondents, the Court stated:

Evidence ... 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' lands. Again, we agree with the trial court that, even if petitioners' 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 "an adequate means of ingress and egress." Petitioners are not entitled to condemn a cartway across respondents' lands merely because this might prove the least expensive means for obtaining access to their property.

17 N.C.App. at 624, 195 S.E.2d at 319.

Thus, to demonstrate that an existing outlet to a public road is not adequate the infeasibility of modifying the terrain to create access must be shown. Neither petitioner nor respondents introduced evidence regarding the feasibility of making petitioner's direct access to highway 901 suitable.

Petitioner admits the existence of the alternative outlets but asserts he is nonetheless entitled to a cartway because those outlets are inadequate. He has the burden of proving the inadequacy of the alternative outlets, however, see Paper Co., 262 N.C. at 457, 137 S.E.2d at 837, and he has failed to sustain that burden. He has not shown the unavailability of adequate access from his own land and the consequent necessity of a private way over the lands of other persons. Accordingly, the court erred in denying respondents' motion for a directed verdict.

*791 As respondents failed to move for a judgment notwithstanding the verdict and the trial court did not on its own motion grant, deny, or redeny respondents' motion for a directed verdict, this Court "may not direct entry of judgment in accordance with the motion...." N.C.Gen.Stat. 1A-1, Rule 50(b)(2); Hensley, 283 N.C. at 726-29, 199 S.E.2d at 8-9. Instead, there must be a new trial. Britt v. Allen, 291 N.C. 630, 636-39, 231 S.E.2d 607, 612-14 (1977); Hodges v. Hodges, 37 N.C.App. 459, 470, 246 S.E.2d 812, 818 (1978). This disposition renders consideration of respondents' other argument unnecessary.

New trial.

WELLS, J., concurs.

PHILLIPS, J., dissents.

PHILLIPS, Judge, dissenting.

In my view the adequacy of petitioner's access to the highway, and his right to obtain a cartway across respondents' land was properly determined by the jury in a trial free of prejudicial error; and I vote to affirm the judgment.