Kanupp v. Land

102 S.E.2d 779 (1958)

248 N.C. 203

W. A. KANUPP and wife, Nellie Kanupp, v. T. L. LAND and wife, Maude Land, J. P. Bradshaw (Single), Mrs. Annie Lorain Beach and husband, W. Roy Beach, Fred Gibson and wife, Johnsie Gibson, Joe Minton and wife, Flora Minton, Lee G. Tomlinson and wife, Mrs. Lee G. Tomlinson, A. L. Pearson and wife, Mrs. A. L. Pearson, Arthur Kincaid and wife, Ruth Kincaid, Robert L. Clontz and wife, Mrs. Robert L. Clontz.

No. 310.

Supreme Court of North Carolina.

April 9, 1958.

*781 W. H. Strickland, Lenoir, for plaintiffappellant.

Townsend & Todd, Lenoir, for defendant-appellees.

RODMAN, Justice.

A property owner who has no reasonable access to his property and for that reason is denied the beneficial use thereof may file his petition with the clerk of the Superior Court and, upon a showing of necessity and payment of the damages sustained, have an easement imposed on the land of his neighbor to provide the isolated property owner reasonable access to a public road. G.S. § 136-69.

The statute merely accords a right to the property owner who is without reasonable access to the public road. It imposes no duty on him to exercise that right. Compensation for the servitude imposed by establishing a cartway is a condition precedent to acquisition. Garris v. Byrd, 229 N.C. 343, 49 S.E.2d 625.

Kanupps, plaintiffs, are not here seeking a cartway across the properties of Lands and the other defendants. They seek to reverse the statutory process: they seek the aid of the court to compel Lands and the other defendants to acquire a cartway across plaintiffs' property. The statute does not accord plaintiffs this right; nor can defendants be compelled to accept a cartway in substitution for an easement presently owned by them. Andrews v. Lovejoy, 247 N.C. 554, 101 S.E.2d 395.

Also essential to the establishment of a cartway is absence of reasonable access to a public road. If reasonable access exists, plaintiffs are not entitled to have a cartway established. G.S. § 136-69; Garris v. Byrd, supra; Waldroup v. Ferguson, 213 N.C. 198, 195 S.E. 615; Collins v. Patterson, 119 N.C. 602, 26 S.E. 154; Plimmons v. Frisby, 60 N.C. 200; Burgwyn v. Lockhart, 60 N.C. 264.

Prior to the institution of this proceeding, it had been judicially determined that the road from the property of defendants Land to the Connelly Springs Highway shall be kept open, and the traffic thereon shall not be interfered with. Plaintiffs here allege that the properties of all defendants abut on that road. No defendant suggests that it does not provide reasonable access to a public road. To the contrary, answering defendants insist that the road so required to be kept open does provide them with reasonable access to a public road. Present plaintiffs Kanupp and present defendants Land were before the Superior Court of Caldwell County with their positions reversed when the court was called upon to determine the right to use the road providing access to the highway. The court, having jurisdiction of the parties and of the question presented, answered the question and adjudged in effect that Lands and others had the right to use the road which provided them access to the public highway. The judgment then rendered is conclusive and binds the parties. Gaither Corporation v. Skinner, 241 N.C. 532, 85 S.E.2d 909; Cannon v. Cannon, 223 N.C. 664, 28 S.E.2d 240; Current v. Webb, 220 N.C. 425, 17 S.E.2d 614; Clinard v. Town of Kernersville, 217 N.C. 686, 9 S.E.2d 381; Leary v. Virginia-Carolina Joint Stock Land Bank, 215 N.C. 501, 2 S.E.2d 570.

Since it had been determined that one of the essential elements requisite to the establishment of a cartway did not exist, the court correctly adjudged that plaintiffs were not entitled to maintain the action for a cartway.

*782 Plaintiffs do not pretend to seek the aid of the court in locating the boundaries of the road declared to exist by the judgment entered in the action of Land v. Kanupp. The provisions of c. 38 of the General Statutes would be available to determine the location of the road described in that judgment; but plaintiffs cannot ask for the location of something which they deny exists. Nesbitt v. Fairview Farms, 239 N.C. 481, 80 S.E.2d 472; Wood v. Hughes, 195 N.C. 185, 141 S.E. 569; Parker v. Taylor, 133 N.C. 103, 45 S.E. 473. Plaintiffs do not seek damages for a trespass by defendants Land.

Affirmed.