Henry R. HALL, W. G. Clark, Bessie M. Burton, Mary E. White, M. C. Williams and Elsie L. Williams, Pauline Kanos and J. V. Kanos, Elizabeth H. Lambert, Ethel Brown Harvey, Hattie G. Moore, J. D. Waddell, Anne C. Waddell, F. R. Keith, Alma V. Taylor, Nola W. Reeves, J. S. McFadyen and Hattie S. McFadyen, Roy T. McDaniel and Zouline McDaniel,
v.
The CITY OF FAYETTEVILLE, J. O. Tally, Jr., George B. Herndon, W. P. DeVane, Eugene Plummer, Dewey W. Edwards, individually, and as members of the City Council of the City of Fayetteville.
No. 600.
Supreme Court of North Carolina.
June 4, 1958.*820 Pittman & Staton, Sanford, and Sanford, Phillips, McCoy & Weaver, Fayetteville, for plaintiffs, appellees.
J. O. Tally, Jr. and Robert H. Dye, Fayetteville, for defendants, appellants.
PARKER, Justice.
The defendants assign as error the referee's findings of fact numbered five and six, which were approved by the Judge, that there is not in the evidence any map, plan or description showing the location, description or width of Gillespie Street, as surveyed and laid out by the commissioners appointed by the Private Acts of the General Assembly of North Carolina, Sessions 1783 and 1784, and that there is not in the evidence any map, plan or description showing the location, width or description of the same street as surveyed, laid off or adopted at any time by the city of Fayetteville, except maps made after 1 January 1952. The defendants contend that these findings of fact are not correct for the reason that they introduced in evidence a deed from the Cape Fear Manufacturing Company to Electric Motor Repair Company, Inc., dated 6 January 1944, and recorded, conveying a certain lot, which is described as "beginning at a stake in the Eastern margin of Gillespie Street, for the purpose of this description Gillespie Street is 100 feet wide * * *." A study of the evidence shows that the two above findings of fact are correct, and the language of the above deed between two corporations in no way contradicts the exact language of these findings of fact. This assignment of error is overruled.
The defendants assign as error the plaintiffs' introduction in evidence of the Preamble and Paragraphs I, II and III of Chapter CXXX of the Private Acts of the General Assembly, Session 1821, and Chapter LI of the Private Acts of the General Assembly, Session 1822, for the reason that these two Private Acts were not pleaded. G.S. § 1-157. The defendants pleaded, and introduced in evidence Chapter XXV of the Private Acts of the General Assembly, Session 1783, and Chapter XXXII of the Private Acts of the General Assembly, Session 1784. Both of the Private Acts introduced by plaintiffs have reference, one directly and the other indirectly, to the 1783 and 1784 Acts introduced by defendants. The defendants make no issue as to the existence or terms of the two Private Acts introduced by plaintiffs, and there is nothing in the record to show that defendants were taken by surprise by these two Acts. Even if we concede that the two Acts introduced by plaintiffs are Private Acts (Winborne v. Mackey, 206 N.C. 554, 174 S.E. 577; Bolick v. City of Charlotte, 191 N.C. 677, 132 S.E. 660; but see 41 Am.Jur., Pleading, p. 296), and their admission in evidence technical error, we think that upon a consideration of the whole record in the instant case, such admission would not justify a new trial. See Reid v. Norfolk Southern R. Co., 162 N.C. 355, 78 S.E. 306. This assignment of error is overruled.
The referee found as a fact that Gillespie Street, South of Market Square to Russell Street, is 100 feet in width between the property lines, and has been that width for many years. This finding of fact was approved by the Judge. Defendants assign as error that the court did not find that Gillespie Street is 100 feet in width for its entire length. The finding of fact patently refers to the actual width *821 of Gillespie Street as it appears today, and has appeared for many years, and the notice given on 12 July 1952 by the city of Fayetteville to certain of the plaintiffs to remove structures upon the alleged strip of land, shows that Gillespie Street as it appears today is not 100 feet in width for its entire length. This assignment of error is overruled.
The referee found as a fact that "until a short time prior to the institution of this action, less than two years, the defendants have not occupied, used, or attempted to use for street purposes the disputed strip of land." Defendants excepted to this finding. The Judge modified this finding of fact by striking out the words "or attempted to use," and approved the finding of fact as modified by him. This assignment of error is overruled, for the reason that this finding of fact approved by the Judge, as modified by him, is supported by competent evidence.
The defendants assign as errors the following two findings of fact of the referee, which were approved by the Judge: One. "The city of Fayetteville has not acquired by prescription or adverse possession the disputed strip of land." Two. "The city of Fayetteville has no rights in or to the disputed strip of land." The defendants also assign as error the referee's conclusion of law, approved by the Judge, that "the city of Fayetteville does not hold title to the disputed strip of land in trust for the use and benefit of the public, and has no rights to the disputed strip of land." These assignments of error are overruled.
The defendants contend, under the above assignments of error, that Chapter XXV of the Private Acts of the General Assembly, Session 1783, appointed James Gillespie and six other named persons to lay out streets in the town of Fayetteville, and that the principal streets shall be 100 feet wide. That Chapter XXXII of the Private Acts of the General Assembly, Session 1784, states that the commissioners named in the 1783 Act have surveyed and laid off six principal streets as fully appears by a plan thereof, and provides that the principal streets are confirmed and established agreeable to the plan. The defendants contend that there is a presumption of law that the commissioners appointed by the 1783 Act laid off Gillespie Street to a width of 100 feet, and they cite in support of their contention Quinn v. Lattimore, 120 N.C. 426, 26 S.E. 638; Frazier v. Gibson, 140 N.C. 272, 52 S.E. 1035; Kirby v. Stokes County Board of Education, 230 N.C. 619, 55 S.E.2d 322; and In re Housing Authority of City of Charlotte, 233 N.C. 649, 65 S.E.2d 761.
Indulging the presumption that the commissioners appointed by the 1783 Act discharged their duty by surveying and laying out Gillespie Street with a width of 100 feet, such presumption will not, of itself, supply proof of the material and substantive fact that the disputed strip of land in the instant case was actually located within the 100 feet in width of Gillespie Street as surveyed and laid out by the commissioners. Belk v. Belk, 175 N.C. 69, 77, 94 S.E. 726, 730; United States v. Ross, 92 U.S. 281, 23 L. Ed. 707; Sabariego v. Maverick, 124 U.S. 261, 8 S. Ct. 461, 31 L. Ed. 430; United States v. Carr, 132 U.S. 644, 10 S. Ct. 182, 33 L. Ed. 483; 20 Am.Jur., Evidence, Sec. 175. See State v. Mann, 219 N.C. 212, 13 S.E.2d 247, 132 A.L.R. 1309.
In United States v. Ross, supra, the Court said: "Because property was captured by a military officer and sent forward by him, and because there is an unclaimed fund in the Treasury derived from sales of property of the same kind as that captured, because omnia praesumuntur rite esse acta, and officers are presumed to have done their duty, it is not the law that a court can conclude that the property was delivered by the military officer to a treasury agent, that it was sold by him, and that the proceeds were covered into the Treasury. The presumption that public officers have done their duty, like the presumption of *822 innocence, is undoubtedly a legal presumption; but it does not supply proof of a substantive fact. * * * Nowhere is the presumption held to be a substitute for proof of an independent and material fact."
Under these assignments of error the defendants contend that Gillespie Street is a public street, and no person can acquire title to any part of it by occupancy thereof, or by encroaching upon or obstructing the same in any way. G.S. § 1-45. However, the findings of fact of the referee, supported by competent evidence, and his conclusion of lawall of which are approved and confirmed by the Judgeare that the city of Fayetteville does not hold title to the disputed strip of land in trust for the use and benefit of the public, and has no rights to it. Therefore, this strip of land is not a public street.
Defendants assign as errors the finding of fact that plaintiffs will be irreparably damaged if the city of Fayetteville carries out its promise or threats, and the conclusion of law that plaintiffs are entitled to injunctive relief. This finding of fact and this conclusion of law were approved and confirmed by the Judge. The threatened removal of plaintiffs' structures and buildings from the disputed strip of land by the defendants, who have no title to, or right in it, so that this disputed strip of land can be paved as a part of Gillespie Street, will mean, if not enjoined, that no judgment at law can restore to plaintiffs this strip of land with the buildings on it in its original character. The finding of fact, approved by the Judge, is supported by competent evidence. Such an injury will be deemed irreparable, so as to warrant injunctive relief. Town of Clinton v. Ross, 226 N.C. 682, 40 S.E.2d 593; 28 Am.Jur., Injunctions, Secs. 48 and 150.
When the action came on to be heard on exceptions filed by the defendants to the referee's report, Judge McKeithen had authority to affirm in whole or in part, amend, modify, or set aside the report of the referee, or he could make additional findings of fact and enter judgment on the report as amended by him. G.S. § 1-194; Quevedo v. Deans, 234 N.C. 618, 68 S.E.2d 275; Keith v. Silvia, 233 N.C. 328, 64 S.E.2d 178. It is manifest from a study of the judgment of the learned Judge, who is now deceased, that he carefully considered and passed upon all the exceptions filed by the defendants to the referee's report, and the evidence, and gave in his judgment his own opinion upon the facts and the law.
In Kenney v. Balsam Hotel Co., 194 N.C. 44, 138 S.E. 349, 350, Stacy, C. J., said for the Court: "It is settled by all the decisions on the subject, with none to the contrary, that the findings of fact, made by a referee and approved by the trial judge, are not subject to review on appeal, if they are supported by any competent evidence. Dorsey v. North Carolina Talc & Mining Co., 177 N.C. 60, 97 S.E. 746. Likewise, where the judge, upon hearing and considering exceptions to a referee's report, makes different or additional findings of fact, they afford no ground for exception on appeal, unless there is no sufficient evidence to support them, or error has been committed in receiving or rejecting testimony upon which they are based, or some other question of law is raised with respect to said findings." To the same effect see Wade v. Lutterloh, 196 N.C. 116, 144 S.E. 694; Standard Crown Co. v. Jones, 196 N.C. 208, 145 S.E. 5; Moore v. Brinkley, 200 N.C. 457, 157 S.E. 129; Thompson v. Hood, 203 N.C. 851, 166 S.E. 311; Wilson v. Allsbrook, 205 N.C. 597, 172 S.E. 217; Maxwell v. Norfolk & W. R. Co., 208 N.C. 397, 181 S.E. 248; Buncombe County v. Cain, 210 N.C. 766, 188 S.E. 399; Wilkinson v. Coppersmith, 218 N.C. 173, 10 S.E.2d 670; Biggs v. Lassiter, 220 N.C. 761, 18 S.E.2d 419; Troitino v. Goodman, 225 N.C. 406, 35 S.E.2d 277.
The crucial findings of fact made by the referee, and approved and confirmed by the Judge, are supported by competent legal evidence, and these findings of fact support the conclusions of law made by the referee *823 and confirmed by the Judge, and these findings of fact and conclusions of law support the judgment rendered by the Judge. Hence, the judgment will be upheld.
The city of Fayetteville and the State Highway and Public Works Commission are both clothed with the power of eminent domain. This decision is not to be considered to prevent in any way either from seeking to condemn this strip of land under such power, if considered necessary in the public interest.
Affirmed.