ROBERT MASON, ET AL.,
Plaintiffs,
v
.
TOWN OF FLETCHER, ET AL.,
Defendants.
Westall, Gray, Connolly & Davis, P.A., by Jack W. Westall,
Jr., for plaintiff appellants.
Russell & King, P.A., by Sandra M. King and David E. Peterson,
for defendant appellees.
TIMMONS-GOODSON, Judge.
Robert L. Mason, Joseph D. Brigman and his wife, Margaret H.
Brigman (collectively “plaintiffs”), appeal from judgment by the
trial court concluding that the Town of Fletcher and City of
Hendersonville (collectively “defendants”) did not trespass when
they installed a water line adjacent to a public road fronting
plaintiffs' property. The facts pertinent to this appeal are as
follows: On 25 June 1999, plaintiffs filed a complaint for
trespass and inverse condemnation in Henderson County Superior
Court. Plaintiffs alleged that defendants had unlawfully
constructed a water line upon plaintiffs' property without
plaintiffs' permission, thereby constituting a continuing trespass.
The trial court heard the matter on 9 October 2000, at whichtime it made the following findings of fact:
1. The Plaintiffs are owners of real
property which fronts on Howard Gap Road (SR
1006) in Fletcher, Henderson County, North
Carolina, pursuant to a Warranty Deed dated
June 29, 1989 and recorded at Deed Book 740,
Pages 373 and 374 of the Henderson County
Registry.
2. The legal description in the deed
referred to in finding No. 1 above states, in
part, that the real property is “SUBJECT TO
the right of way of Howard Gap Road.”
3. Taking judicial notice of the Henderson
County Superior Court File #97 CvS 586, in
addition to the evidence presented in this
proceeding, the undersigned finds that the
right of way referred to in finding No. 2
above is 39.37 feet wide.
4. The paved portion of Howard Gap Road
through Plaintiffs' property is approximately
23 feet wide.
5. In February, 1998, Defendant Town of
Fletcher (“Fletcher”) entered into a contract
with Mattern & Craig, Inc., Engineers
(“Engineers”), which provided that Engineers
would make all arrangements necessary to
enable Fletcher to install a water line in the
margin of Howard Gap Road, a portion of which
water line would pass across the plaintiffs'
property fronting on Howard Gap Road.
6. The water that was going to be used in
the water line was owned by Defendant Town of
Hendersonville (“Hendersonville”), so it was
agreed that Hendersonville would become the
owner of the water line.
7. On conflicting evidence, the North
Carolina Department of Transportation (“DOT”)
had provided maintenance to Howard Gap Road,
including mowing the hay and grass along the
edges of the road to a distance of 6 to 15
feet on each side of the pavement thereof.
8. In August 1998 a DOT standard form “Right
Of Way Encroachment Agreement” was entered
into between Hendersonville, as owner of thewater line, and DOT, as owner of the right of
way on Howard Gap Road, that gave
Hendersonville the right to encroach upon, and
utilize, DOT's right of way for installation
and use of the water line.
9. During the installation of the water
line, Plaintiffs complained to Fletcher that
the water line was encroaching on their
property.
10. On conflicting evidence, the water line
was installed within the Howard Gap Road right
of way across Plaintiffs' property.
11. Howard Gap Road (SR 1006) is a state road
that has been used by the public continuously
and has never been abandoned.
12. Even if a trespass had occurred, the
Plaintiffs suffered no damage, but rather the
installation of the water line enhanced the
value of their property.
Based upon the above-stated findings of fact, the trial court
concluded that “[t]he construction of the water line across and
through Plaintiffs' property within the DOT's right of way was a
proper use of the right of way within the dedication of Howard Gap
Road to public use.” The trial court therefore determined that
defendants had committed no trespass and entered judgment in favor
of defendants. Plaintiffs now appeal to this Court.
__________________________________________________
Plaintiffs contend on appeal that the trial court erred in (1)
finding and concluding that the North Carolina Department of
Transportation (“DOT”) had a right-of-way 39.37 feet wide; (2)
concluding that the construction of the water line was a proper use
of the right-of-way; and (3) concluding that plaintiffs suffered no
damages as a result of the installation of the water line in theright-of-way. For the reasons stated herein, we affirm the
judgment of the trial court.
Upon review of judgment by the trial court, we must determine
whether there was competent evidence before the court to support
its findings of fact, and whether those findings of fact, in turn,
support its conclusions of law. See Lemmerman v. Williams Oil Co.,
318 N.C. 577, 580-81, 350 S.E.2d 83, 86 (1986). “On appeal, the
findings of fact made below are binding on the Court of Appeals if
supported by the evidence, even when there may be evidence to the
contrary.” Barnhardt v. City of Kannapolis, 116 N.C. App. 215,
217, 447 S.E.2d 471, 473, disc. review denied, 338 N.C. 514, 452
S.E.2d 807 (1994).
Plaintiffs argue that there was no competent evidence to
support the trial court's finding that there existed a right-of-way
across plaintiffs' property in favor of DOT, and that such right-
of-way was 39.37 feet wide. Plaintiffs admit, however, that the
warranty deed by which they acquired title to their property states
that such property is “SUBJECT TO the right of way of Howard Gap
Road.” Further, plaintiffs do not dispute that Howard Gap Road is
a public highway, and that the paved portion of Howard Gap Road is
twenty-three feet in width. Plaintiffs nonetheless argue that
there was no evidence to support the trial court's finding that DOT
maintained the right-of-way beyond the paved portion of the road,
and that such right-of-way was 39.37 feet wide. We disagree.
Competent evidence before the trial court supported the
court's finding that DOT maintained the Howard Gap Road right-of-way beyond the paved portion of the highway. Mr. Clarence William
Corn (“Mr. Corn”), an employee of DOT and the former mowing
inspector for Henderson County where plaintiffs' property is
located, testified that he was personally familiar with the Howard
Gap Road right-of-way. Mr. Corn explained that DOT generally mowed
the Howard Gap Road right-of-way fronting plaintiffs' property six
times per year using a “bush hog mower,” and that at least once per
year, DOT utilized a “contour mower” to mow “approximately 10 to 15
[feet] from the ditch or the edge of the road over as far as [DOT
could] mow.” Although plaintiffs testified that they had never
witnessed such mowing, “[i]t is well established that where the
trial court sits without a jury, the court's findings of fact are
conclusive if supported by competent evidence, even though other
evidence might sustain contrary findings.” Barnhardt, 116 N.C.
App. at 224-25, 447 S.E.2d at 477. Because there was competent
evidence to support the trial court's finding that DOT maintained
the Howard Gap Road right-of-way beyond the paved portion of the
highway, the trial court did not err in finding such.
As to plaintiffs' contention that the trial court erred in
finding the right-of-way to be 39.37 feet wide, we note that, in
its finding of fact Number Three, the trial court stated that it
was taking judicial notice of another case between the parties in
the Henderson County Superior Court, Case Number 97 CVS 586. Case
Number 97 CVS 586 was a condemnation case brought by DOT against
plaintiffs, involving a small portion of Howard Gap Road.
According to the survey map completed by DOT and submitted to thetrial court in that case, the Howard Gap Road right-of-way at issue
in the present case extended 39.37 feet wide.
“In a trial court, a party is entitled upon timely request to
an opportunity to be heard as to the propriety of taking judicial
notice and the tenor of the matter noticed.” N.C. Gen. Stat. § 8C-
1, Rule 201(e) (1999). Plaintiffs made no such request before the
trial court, nor do they argue on appeal that the trial court could
not properly take notice of its own records. “It is not the law
that facts essential to a judgment can only be established by the
testimony of witnesses, by exhibits introduced into evidence, or by
a stipulation of the parties; they can also be established by
judicial notice.” State v. Smith, 73 N.C. App. 637, 638, 327
S.E.2d 44, 45-46 (1985); see also Kenneth S. Broun, Brandis and
Broun on North Carolina Evidence § 26 (5th ed. 1998) (stating that
“there seems little reason why a court should not notice its own
records in any prior or contemporary case when the matter noticed
has relevance”). We conclude that the trial court could properly
take judicial notice of Case Number 97 CVS 586, and thus there was
competent evidence before the trial court in the instant case to
support its finding that the Howard Gap Road right-of-way was 39.37
feet wide. We overrule plaintiffs' first assignment of error.
Plaintiffs further assign as error the trial court's
conclusion that the construction of a water line was a proper use
of the right-of-way. Plaintiffs contend that the installation of
the water line “increased the servitude” of plaintiffs' property by
making greater use of the premises than was contemplated by thepurpose for which the right-of-way was created. We disagree.
As stated supra, plaintiffs do not contest the fact that
Howard Gap Road is a public highway, and as such, subject to the
control and authority of the DOT. See N.C. Gen. Stat. § 136-18
(1999). Moreover, we have determined that the trial court properly
concluded that a right-of-way existed in favor of DOT, and that it
extended 39.37 feet wide. The right-of-way encroachment agreement
between DOT and defendants provides for the installation of the
water line within the “right-of-way of the public road.” Thus,
pursuant to the encroachment agreement, defendants obtained a valid
right to encroach upon the Howard Gap Road right-of-way. A water
line is a proper use of a right-of-way within the dedication of
Howard Gap Road to public use. See N.C. Gen. Stat. § 136-18(10)
(1999); Watkins v. Lambe-Young, Inc., 37 N.C. App. 30, 32, 245
S.E.2d 202, 204 (1978). Thus, the trial court did not err in
concluding that the installation of a water line was a proper use
of the Howard Gap Road right-of-way. Accordingly, we overrule
plaintiffs' second assignment of error.
By their final assignment of error, plaintiffs argue that the
trial court erred in concluding that plaintiffs suffered no damages
as a result of defendants' continuing trespass upon their property.
We have determined, however, that the trial court properly
concluded that defendants did not trespass when they installed the
water line within the right-of-way. As defendants committed no
trespass upon plaintiffs' property, plaintiffs have failed to show
that defendants' actions have injured them. We therefore overruleplaintiffs' final assignment of error.
The judgment of the trial court is hereby
Affirmed.
Judges MARTIN and BRYANT concur.
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