Burden v. . Harman

52 N.C. 354 | N.C. | 1860

The petition in this case was filed in the County Court of Bertie, and brought to the Superior Court by appeal. The prayer of the petition is for a jury to lay off a cartway over the lands of the defendant, leading to the fork of the Conaritsa and Snakebite roads, at Thomas Rice's. The judgment in the Superior Court, to which the case came by appeal, is as follows: "It is ordered by the court that a jury be summoned, who shall lay off a cartway, beginning at plaintiff's house, across the land of the defendant, in the direction of Rice's Cross-Roads, and report to the next term."

It appeared from the statement of the case forwarded by his Honor that the lands of other persons laid between the land of the (355) defendant and the station at Rice's, and that these persons were not made parties to the case. The court, on argument and proofs as to many facts raised between the parties, granted the foregoing order, from which the defendant appealed.

In this Court a motion was made to dismiss the appeal. The objection made by the plaintiff's counsel, that no appeal lies from the County to the Superior Court on a judgment given in a petition for a cartway, is clearly untenable. It was settled to the contrary, Ladd v. Hairston, 12 N.C. 368. No appeal was expressly given in such a case by the original act of 1798 (ch. 508, Rev. Code, of 1820), and none is now so given by Rev. Code, ch. 101, sec. 37; but in the case referred to it was held that when the person over whose land the cartway was sought to be laid out came in, upon notice, and was made a party defendant to the petition, he was entitled to appeal under the general law 1777 (ch. 115, sec. 75, Rev. Code of 1820), which is reenacted almost intotidem verbis by the last Revised Code, ch. 4, sec. 1.

Upon the merits of the case it is manifest that the judgment of the Superior Court cannot be sustained. In petitions for a private cartway, as in those for a public road, it is the exclusive province of the court to fix the termini of the way or road, leaving to the jury the exclusive province of laying out the route of such way or road between thosetermini. See Welch v. Piercy, 29 N.C. 365. That was a petition for a public road, but the principle decided applies with equal force to the case of a private cartway. The judgment in the present case fixes one only of the termini, leaving the other entirely indefinite. The way is to start from the house of the petitioner, and is to go in the direction of Rice's Cross-Roads, but whether it is to go it, or stop short of it, does not appear. The reason why the judgment is thus imperfect, (356) we learn from the statement of the case, is that the way, if laid out over the land of the defendant only, will not reach any public road, the land of another person not before the court being interposed. The court has no power to order the laying out of a cartway over the land of another, to stop in the woods. The petition ought to have stated the lands of all the persons over which it was intended to pass, and, by notice, to have made the owners parties, and then a proper judgment might have been given fixing the termini, and ordering a jury to lay out the route in such a manner as might be most convenient and proper for all the parties.

The judgment given was erroneous, and must be

PER CURIAM. Reversed.

Cited: McDowell v. Asylum, 101 N.C. 659.