DEVIN, J., concurring.
BARNHILL, J., dissents.
STACY, C. J., and WINBORNE, J., concur in dissent. This is an action for damages by plaintiffs against defendant, and also "that plaintiffs be granted an injunction enjoining and restraining the defendant, her servants, agents and employees, from obstructing said highway or interfering with the free use thereof by plaintiffs, their tenants and the public generally, seeking access to the lands of the plaintiffs; that plaintiffs recover the costs of this action to be taxes by the clerk, and have such other and further relief as to the court may seem just and proper."
The defendant in her answer, after denying plaintiffs' right to damages, prays: "That the plaintiffs recover nothing of her; that the plaintiffs do not have the relief or any part thereof prayed for in the complaint; that no restraining order, either temporary or permanent, be issued against her; that she go without day and recover her costs of the plaintiffs and their bondsmen; that she be awarded such affirmative relief to which she may be entitled in the premises both at law and in equity."
The facts: Louis Long died in February, 1937, seized and possessed of a tract of land fronting on and lying south of the Old Dowd Road in Mecklenburg County, N.C. and extending out in the Catawba River on the westerly side. That the line of said land extended to the center of the Old Dowd Road and adjoined the lands of S. A. Berryhill. Louis Long died, leaving a widow, Ada Long, and one child, Louise Long Kerlin, and that said Louise Long Kerlin is the owner of said lands mentioned in the complaint, subject to a dower interest of Ada Long. The Old Dowd Road was the main State highway between Charlotte *Page 96 and Gastonia. That upon construction of the new concrete bridge over the Catawba River the said main State highway between Charlotte and Gastonia was moved northerly and known as the New Wilkinson Boulevard. The right of way of the State highway at the place in controversy at the Old Dowd Road is 60 feet in width; the right of way of the New Wilkinson Boulevard is 100 feet in width; the Old Dowd Road has a paving of a width of 40 feet, and the New Wilkinson Boulevard has a paving of the width of 40 feet. Louis Long and the plaintiffs herein and their tenants have openly, adversely and notoriously used the Old Dowd Road, of a width of 60 feet, for a period of more than 20 years, and without obstruction or interference from anyone, or a dispute of the lawful right to use the same until the construction by the defendant of the obstruction on said Old Dowd Road, and that said highway has been not only used by Louis Long and the plaintiffs herein, and their tenants, but by the public generally for a period of more than 20 years, openly, adversely and notoriously, and without objection on the part of anyone until the construction by the defendant of the obstructions mentioned in the complaint. Louis Long built a filling station, dance pavilion and barbecue stand on his land near the Catawba River, facing on the Old Dowd Road, which was used for ingress and egress to his property. The defendant, at the commissioners' sale of S. A. Berryhill's estate, purchased 71/100 of an acre of land which practically covered a part of the right of way of the Old Dowd Road and the New Wilkinson Boulevard. The northern line extended about 499 feet with the center of the New Wilkinson Boulevard and ran on the east side 35 feet south to a stake in the Old Dowd Road, thence N. 73 W., 475 toward the Catawba River to a stake in the Old Road, thence N. 33 E., 85 feet to a point in the center of the New Wilkinson Boulevard — containing 71/100 acres. Posts with "No Trespassing" signs on same have been put up by defendant to stop plaintiffs from ingress and egress to their property over the New Wilkinson Boulevard and the Old Dowd Road opposite their property. The defendant contends that at the commissioners' sale, she purchased the fee simple in the land and had a right to close the road. That by going some 500 feet in an easterly direction from where the buildings are located, plaintiffs can enter the New Wilkinson Boulevard and can travel on one-half (30 feet) of the Old Dowd Road, and thus have ingress and egress to their property.
A temporary injunction was granted for plaintiffs and continued to the hearing. On the hearing, "Upon the close of plaintiffs' evidence, defendant demurred to the evidence and moved for judgment as of nonsuit, motion allowed." To the allowance of said motion of nonsuit plaintiffs in apt time excepted, assigned error and appealed to the Supreme Court. *Page 97 The assignment of error and other necessary facts will be set forth in the opinion. Did the court err in signing the judgment as in case of nonsuit, C. S., 567? We think so, under the facts and circumstances of this case.
The New Wilkinson Boulevard is 100 feet wide and paved 40 feet in the center. The Old Dowd Road is 60 feet wide and paved 40 feet in the center. The right of way of the New Wilkinson Boulevard on the south is on the Old Dowd Road right of way. The 60-foot right of way of the Old Dowd Road overlaps for some distance on the 100-foot right of way of the New Wilkinson Boulevard. There is no question that plaintiffs had a right to the Old Dowd Road for ingress and egress to their land. The New Wilkinson Boulevard was built on the north of the Old Dowd Road, and part of the 100-foot right of way, on the right of way of the Old Dowd Road. Plaintiffs' predecessor in title built on the Old Dowd Road and had ingress and egress over same before the New Wilkinson Boulevard was built. We see no good or valid reason why plaintiffs' successor in title should not have a right of way or easement over the Old Dowd Road onto the New Wilkinson Boulevard, which overlaps same. Under the facts and circumstances of this case, we think there was evidence to support plaintiffs' claim to use the full width (60 feet) right of way of the Old Dowd Road for ingress and egress to the New Wilkinson Boulevard.
The fact that the Old Dowd Road was a State highway, 60 feet wide, maintained by the State and used by the public for years, is not disputed. The fee to the strip of land between the paved portion of the two highways was vested in the Berryhill estate and the defendant purchased this strip and sought to obstruct the old highway by placing posts with wire attached thereto, so as to prevent travel from the new highway to plaintiffs' land. The obstructions were located within the 60-foot right of way of the old road, and the approach used to plaintiffs' lands was entirely within the right of way of the two highways comprising a strip 160 feet wide.
In S. v. Hewell, 90 N.C. 705 (706-7), we find the following: "The fact that a public road is laid off on a man's land does not deprive him of the freehold of the land covered by the road. His title continues in the soil, and the public acquires only an easement, that is, the right of passing and repassing along it. S. v. Davis, 80 N.C. 351; Dovaston v. Payne, 2 Smith, L. C., 90." *Page 98
The defendant, who purchased at the commissioners' sale 71/100 of an acre of the Berryhill land, acquired the fee simple. She knew the Old Dowd Public Road was there and plaintiffs and their predecessors in title were using it for ingress and egress to their land. She purchased it cum onere.
We think Davis v. Alexander, 202 N.C. 130, is similar to the present action. At p. 131-2, it is said: "The law applicable to this action is well stated in 2 Elliott, Roads and Streets (4th Ed.), part sec. 1172, at p. 1668: `Once a highway always a highway,' is an old maxim of the common law to which we have often referred, and so far as concerns the rights of abutters, or others occupying a similar position, who have lawfully and in good faith invested money or obtained property interests in the just expectation of the continued existence of the highway, the maxim still holds good. Not even the Legislature can take away such rights without compensation. Such, at least, is the rule which seems to us to be supported by the better reason and the weight of authority, although there is much apparent conflict as to the doctrine when applied to the vacation of highways' (citing authorities) . . . (p. 135). In 1 Lewis on `Eminent Domain,' pp. 368-9, the matter is stated thus: `But it would seem that both the public and those claiming the fee should be estopped from denying the existence of a private right of access and of light and air, as to those who have purchased or improved abutting property on the faith of the advantage offered by the street or highway and that this private right of access should be held to include an outlet in both directions to the general systems of streets. Many cases hold that these private rights exist in favor of every abutting owner without considering how the street was established or how such owner obtained title to his property.'"
Plaintiffs' position here is squarely supported by Davis v. Alexander,supra. There, as here, when a highway was relocated, the owner of the fee beneath the old road attempted to take complete possession of it and close it. Plaintiff, who had built on the old road and was thus shut off from the new road, except by a longer route than the one closed, sought a mandatory injunction preventing the closing of the former road. This Court, in reversing the lower court, upheld the right of the plaintiff to a permanent injunction against the closing of the old road. The law of the Davis case,supra, is clear: When the State Highway Commission relocates a road, any abutting owner on the old road, as against any owner in fee of land beneath the old road, may demand that the entire width of the old roadway be kept open to the end that a reasonable means of egress and ingress be provided to his property; and this principle prevails even where (as here and in theDavis case, supra) a less satisfactory and less valuable means of egress and ingress would remain even if *Page 99 the contested portion of the old road were closed. This decision was the act of a unanimous Court, and, during the nine years since it was rendered, it has been cited with approval by this Court on three occasions; nor has the opinion in that case been modified or reversed by more recent decisions of this Court. See Reed v. Highway Com., 209 N.C. 648 (653); Grady v.Grady, 209 N.C. 749 (750); Cahoon v. Roughton, 215 N.C. 116. In the last cited case, Barnhill, J., speaking for the Court, expressly affirmed the authority of the Davis case, supra, in the following words: "The plaintiffs have failed to bring themselves within the decision in Davis v.Alexander, 202 N.C. 130, 162 S.E. 372." In the Davis case, supra, the plaintiff asserted his right to have the entire width of the old road from his home to the public road leading into the new road kept open by mandatory injunction, and this right was sustained by this Court. The application of the rule of the Davis case, supra, to the facts of the instant case is determinative.
Much of the argument of defendant is predicated upon the assumption that the old road in controversy has been completely abandoned as a public highway. It does not so appear from the record. The State Highway Engineer for the district in which the road in controversy is located testified, on cross-examination by the defendant, "I do not know of any proceedings taken to abandon the old highway. When I stated that the road had been abandoned, I meant that the State Highway Commission does not keep it up now. . . . When we release a highway or abandon it, it reverts to the jurisdiction of the county commissioners." This is the strongest evidence relative to an abandonment of the old highway revealed upon a careful reading of this record. Certainly the evidence on the instant record does not negative the continuation of the old road under county maintenance or under private maintenance with the approval of the county authorities. As has been well said, "The maxim (`once a highway always a highway') exists in support of the position that when it is shown that a highway was once laid out pursuant to law, or created by dedication, the burden of showing discontinuance, abandonment or vacation, is upon the party who asserts that the public and the abutting owners have lost or surrendered their rights. In the absence of satisfactory evidence of discontinuance, vacation or abandonment, the presumption is in favor of the continuance of the highway with the principal and incidental rights attached to it." See 2 Elliott, Roads and Streets, 4th Ed., p. 166, et seq. Here the defendant undertook to assert rights predicated upon an actual and complete abandonment of the old highway and, accordingly, assumed the burden of showing such abandonment. Defendant also relied upon certain allegations with reference to plaintiffs' use of the old highway for unlawful parking and in furtherance of plaintiffs' roadhouse business alleged to *Page 100 be unlawful; such allegations, even if sufficiently proved, would not forfeit plaintiffs' property right to use the old road in traveling to and from plaintiffs' land. If the rights of the public are being violated by plaintiff in the unlawful parking near plaintiffs' place of business, the strong arm of the criminal law may be invoked with speedy effect; if the public sense of morals and decency is being violated by plaintiffs in the maintenance of a nuisance, the equally rigorous remedies of padlocking and orders of abatement are in easy reach of any citizen wishing to invoke them. On this record plaintiffs, as individuals, assert recognized property rights against defendant, as an individual, and the law as heretofore written in this jurisdiction sustains plaintiffs' position.
The judgment of nonsuit is reversed. The cause is remanded for further proceedings not inconsistent with this opinion.
Reversed.