44 N.C. 387 | N.C. | 1853
The answer denied that the proposed change in the road would be advantageous to the public, or that a crossing could be obtained which would be in any respect as good as that now in use. It was admitted that the plaintiff could not improve her water power, without obstructing the present road; but it was averred in the answer, that the proposed change in the highway would be greatly injurious to the defendant, as it would destroy or greatly impair a site for machinery, which was owned by him, and over which the road, if the alteration was made, would pass.
Upon the hearing of the case before Ellis, J., at UNION, at (388) the Fall Term, 1852, much testimony was offered to show that the change in the ford would be beneficial to the public, by providing a more safe and convenient crossing of the stream; and also much evidence to establish the contrary. And testimony was also offered to show that the proposed change of the road would be injurious to the defendant, and beneficial to the plaintiff. His Honor being of opinion, from the testimony, that the ford which the petition sought to establish, though as good, would not be better than that now in use, and that the public good did not require the change, held, without deciding the question as to whether the same would be injurious to the defendant, that the court had no power under the act of Assembly and the *359 Constitution of the State, to grant the prayer of the petition; and from this judgment accordingly, dismissing the same, the petitioners appealed to the Supreme Court. His Honor who tried the cause below, was of opinion that under the act of Assembly, relied on by the petitioners, he had no power to grant their prayer. In this opinion we concur, as the evidence stood. All public roads are established for the public convenience, and not to subserve private interests; and this principle is especially to be attended to, in altering a public road. If the public interest require the alteration, it will be made, even at any sacrifice of private interest; but such sacrifice will never be required, except upon the ground of the general good. The law never intended that burthen shall be taken from one man's shoulders, to be placed on those of another, when the public was not interested.
The case states that much testimony was introduced to show that the public interest would be subserved by making the alteration proposed; and much to prove it would not. How, then, could the court say that the public good required the alteration asked for — being of opinion that the ford asked for was as good (though not better) than the old one?
If the question had been an original one, concerning the laying out the road, as that where it should cross the stream, in the (389) conflict of testimony the court might be driven to the necessity of deciding upon it, one way or the other; but that is not the case here. Here, the court was required to alter the road for the purpose really of enabling the plaintiff, Kenedy to improve the power of her manufacturing mill, by raising her dam, to the alleged injury of the defendant, by preventing him from erecting any manufacturing mill at all. In the dispute, it is not shown that the public has any interest whatever.
PER CURIAM. Judgment dismissing the petition affirmed.
Cited: Bradshaw v. Lumber Co.,
