94 N.C. 487 | N.C. | 1886
A road, way, or street in a town, may become a public highway by the continued use of it by the public for twenty years, not simply by permission, tacit or express, of the owners of the land over which it passes, but adversely to them, and as of right. That is, the proper public authorities must have exercised authority and control over it in some way to be seen, as by superintending and keeping it in proper repair, adversely to the owners of the land. The presumption of right in favor of the public, will not arise, unless the proper public authorities, as authorized by law, shall do something that puts the owner of the land on notice that his (488) right is denied, and to assert the same by action, if he shall desire or see fit to do so. It would be unjust, as well as ungracious, to take advantage of his generous permission to use his land for public convenience, and the law will not allow this to be done.
When, however, the public assumes and exercises authority and control over the road, and the owner of the land makes no opposition, and twenty years elapse, conclusive presumption arises against him in that respect. Hence, in State v. Purify,
In Kennedy v. Williams,
The mere fact that the defendant knew that the people generally passed over the way, and that he occasionally passed over it himself, cannot, as seems to be contended, be treated as a dedication of his land to the purpose of a highway. Boyden v. Achenbach, supra; State v. Jones, supra.
A dedication of land to the purpose of a highway, must appear by some act of the owner of it, that indicates expressly or by plain implication, a purpose to create a right in the public to use it adversely to him, and as of right. He must do some act that indicates his concession, and yields the use of the land for such purpose, and the proper public authority must, in some way, take control over it, thus manifesting a recognition and acceptance of the owner's dedicatory concession. The mere use of a way over land, does not constitute it a highway, nor does a mere permissive use of it imply a dedicatory right in the public to so use it. The use must be adverse to the owner, and as of right, manifested in some appropriate way by the properly constituted public authority.
It appears from the plaintiff's complaint, and as well from the affidavits produced by her, that the way in question was not a highway, and her supposed right therefore, has no existence. She alleges no cause of action, and therefore the injunction was improvidently granted.
It would seem that the way ought to be a highway, but whether it ought or not, is not a question for our decision — it is our province to simply declare and apply the law. If the proper authorities of the town deem it necessary to make it so, they (490) can easily do so.
The order granting the injunction must be reversed, and to that end, let this opinion be certified to the Superior Court of the County of Brunswick. It is so ordered.
Error. Reversed.
Cited: S. v. Summerfield,