Cook v. . Vickers

57 S.E. 1 | N.C. | 1907

(313) When this case was here before, we held that the defendants had the right of appeal, and consequently the right to a trial de novo in the Superior Court, 141 N.C. 101. The case was called for trial at the last term in the court below and the defendants demurred ore tenus to the petition for the cartway, upon the ground that the petitioners were not entitled to the relief demanded, "as it is alleged in their petition that they already have a way of reaching the Chapel Hill Road by going a `longer distance' and a roundabout way, not so convenient to them as the cartway they seek to establish, but, nevertheless, a way out to Durham without having a cartway laid out upon the lands of the defendants." The court sustained the demurrer, and the plaintiffs appealed. The act of 1901, ch. 729, sec. 13, under which this proceeding was brought, provides that any party desiring a cartway from his premises over the lands of his neighbor, and leading to a public road, may file his petition before the county commissioners as therein directed, and, after due notice to those interested, the board shall hear the matter, and, "if sufficient reasons be shown," shall order the cartway to be laid out by a jury of view. Provision is then made for the protection of the lands over which the cartway runs by the erection of gates and bars across the same. It is further alleged by the plaintiffs in the petition that the way out from their premises to the Chapel Hill Road, which is not theirs of right, but held by a precarious tenure, is "a very rough and bad roadway," and the necessity of using it, which was created by Joseph Vickers, who closed a way they had formerly used, has increased the distance of travel by 2 1/2 to 3 miles.

We were referred by the defendants' counsel to Warlick v. Lowman, 103 N.C. 122, and Burwell v. Sneed, 104 N.C. 118, as authorities (314) sustaining the ruling of the court, but we do not think they do. They construed section 2056 of The Code (Revisal, sec. 2686), the language of which is quite different from that of the special act of 1901 applying to Durham County. All the latter act requires is that "sufficient reason" be shown for laying out the cartway, and we think the allegations of the petition are definite enough to entitle the petitioners to a trial by jury upon the issue raised by the answer, and that the objection urged is untenable. Whether there is sufficient reason, under all the facts and circumstances of the case, for establishing the cartway is clearly a question for the jury to determine under proper instructions from the court. Mayo v. Thigpen, 107 N.C. 63; Burgwyn v. Lockhart, 60 N.C. 265. His Honor erred in deciding it as a question of law upon the allegations of the complaint. The judgment will be set aside and the issue joined will be submitted to a jury.

Error.