Porter v. . Durham
Supreme Court of North Carolina
Civil actioN, heard by Philips, Judge, at Fall Term, 1887, of PENDER Superior Court. From the judgment of the Court dismissing the action the plaintiff appealed. The complaint alleges title in the plaintiff to an easement or right of draining the excessive waters upon his own lands through a ditch opened upon the defendants’ adjacent lands into a canal used by them in common as a means of directing the overflow and relieving both tracts.
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Civil actioN, heard by Philips, Judge, at Fall Term, 1887, of PENDER Superior Court. From the judgment of the Court dismissing the action the plaintiff appealed. The complaint alleges title in the plaintiff to an easement or right of draining the excessive waters upon his own lands through a ditch opened upon the defendants’ adjacent lands into a canal used by them in common as a means of directing the overflow and relieving both tracts. The canal is also on defendants’ land. It states further that the easement has been acquired in one of two ways, and has been in use for more than seventeen…
1Opinion of the Court
Smith, C. J.,
(after stating the case). The underlying element in the present controversy is the contested validity of the ex parte action taken in 1874 by the plaintiff and its efficacy1 in vesting an easement in him, and this again depends upon the question whether the memoranda in regard .to notice, accompanied with the further fact of the presence ,of Durham with the appraisers when they were acting, is -in law an appearance dispensing with the service of notice ,nr summons. The section of the law applicable to this in quiry is found in chap. 39, sec. 3, of Bat. Rev., and is in these words:
2Cited by1 opinion
- Porter v. Armstrong.Supreme Court of North Carolina · 1901