explaining that the intention of the owner to dedicate is the “foundation and very life of every dedication”
How later courts described this case
- explaining that the intention of the owner to dedicate is the “foundation and very life of every dedication”
- for purposes of prescriptive easement, statute not tolled when owner went into receivership and receiver appointed
- "[i]t is well recognized law in this jurisdiction from the earliest times that when the Statute of Limitations has begun to run, no subsequent disability will stop it"
- for purposes of prescriptive easement, statute not tolled when owner went into receivership and *423 receiver appointed
Written by the judges who cited it.
The opinion
Rodman, J.,
dissenting: The law with respect to the acquisition of an easement by adverse user is clearly and concisely stated in Henry v. Farlow, 238 N.C. 542 . As there shown by copious citations, user alone is not sufficient; the owner must be put on notice of the adverse character of the use.
The language of Clarkson, J., in R.R. v. Ahoskie, 202 N.C. 585 , is I think, appropriate to the facts shown by this record. He said: “Neighborly conduct either on the part of a person or corporation ought not to be so construed as to take their property, unless it has such probative force as to show adverse user for twenty years. Much of defendant’s evidence is in the nature of omissions by plaintiff railroad company in not being unneighborly and chasing trespassers off its property. The fact that this was not done, cannot be held for acquiescence or adverse user on the part of defendants. This goes too far, and we cannot agree to this . . .”
The evidence as summarized in the opinion of the majority is plenary to show use of the alley by defendant and any others who desire to use, but nowhere have I been able to discern any evidence tending to show that defendant’s user was different in character from that of the other citizens of Salisbury. The only difference that I have been able to discover is that the defendant probably used the alley more frequently than the other witnesses it produced to testify to the fact of user. To my mind this evidence negatives the idea of adverse possession even more than it negatives the idea of dedication; but, if adverse, did not the permissive use by others interrupt defendant’s possession and prevent it from acquiring by adverse possession? G.S. 1-40.
It does not seem to me that the complaint which alleges a shadow presently cast on plaintiff’s title can be interpreted as indicating the cloud has been in existence for more than twenty years. My vote is to affirm.
Bobbitt, J., concurs in dissent.