Winston Brick Manufacturing Co. v. Hodgins
135 S.E. 466
N.C.
1926
Check Treatment
BkogdeN, J.

The plaintiff alleged in his complaint “that the defendants designated and stipulated a road a “way of necessity” over their own land to the public highway, the same to be used for the benefit of plaintiff, and described as follows: “This property will have road platted to 'Walkertown or paved highway.” In paragraph 6 of the complaint plaintiff alleged: “That on or about 15 August, 1923, the defendant closed or caused to be closed said road or 'way of necessity’ to the said tract of land.” It was further alleged that, as a result of closing said “way of necessity” the plaintiff sustained damage because he “was 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.”

The defendant admitted the fourth allegation of the complaint, in which it was alleged that the defendants designated and stipulated a “way of’ necessity” over their land.

*579 It is apparent therefore that the sole cause of action alleged in the complaint was the failure of the defendant to furnish a “way of necessity” over his land.

It is further apparent that the covenant in the deed, “This property will have a road platted to Walkertown or paved highway,” has been construed by the parties in their pleadings as confining the scope of this case to a “way of necessity.”

This 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: “However, the parties stipulated for a ‘way of'necessity’ to the Walkertown highway, their rights thus established are the same as when ‘a way of necessity’ to the designated highway had been established in inviium. It is the right of plaintiff to pass over the defendant’s 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.”

This declaration of the law contains three distinct and clear cut propositions:

1. The parties contracted for a way of necessity over the land of defendant, owned by him the date the deed was executed and delivered.

2. The vendor has a right to select the way.

3. The convenience of the parties claiming a “way of necessity” is not the controlling consideration.

Justice Varser says further: “Of 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.”

The 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 “way of necessity” to which the plaintiff was entitled, and that the defendant had closed or obstructed said “way of necessity.” In the former appeal the Court declared the principles of law governing the rights of the parties. “A 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.” 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.

The 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 *580 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. “It 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.” 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.

Therefore, it appearing that tbe cause of action alleged in tbe complaint was based solely and entirely upon a “way of necessity” 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.

No error.