Opinion
(December Term, 1848.)
1. The courts have no authority to have the lands of the citizens taken for a cartway, without the consent of the owner, except in the instance provided for by the statute: "If any person shall be settled upon or cultivating any land to which there is no public road leading or no way to get to or from the same, other than by crossing other persons' land."
2. Therefore, where there was a public road to which access might be had, though not so convenient for the petitioner as the cartway he prays for, the court cannot grant the petition.
APPEAL from the Superior Court of Law of CASWELL, at Spring Term, 1848, Pearson, J., presiding.
E. G. Reade for plaintiffs.
Kerr and Norwood for defendant.
This was a case originally commenced in the County Court by a petition for a cartway, and thence carried by appeal to the Superior Court of Caswell County. The petition set forth that the petitioner James was the owner, and was cultivating a valuable tract of land, on which was situated a public mill, on Cobb Creek, which runs through the said land; that the said land was situated about a mile and one-half to the nearest point of it from Leasburg, and the mill about two miles; that he himself resided in Leasburg and had no wagon nor cartway to his said plantation or mill, without going the Roxboro Road into Person County about a half mile, and then along the Goshen Road in Person County about three miles, and then a crossroad to the mill about a mile, making in all four and one-half miles; and to the main part of his plantation was still farther and more inconvenient than to the mill.
And the petition further showed that for a great many years there had been a cart and wagon way from Leasburg to his plantation and then turning from the Milton Road about half a mile from Leasburg, running through the lands of the petitioner Susan and the defendant John and the petitioner (16) James, to the mill, which said way has been stopped up by the defendant John, and he now refuses to allow any passage over that way.
The petition further stated that the said way would not only be a great convenience to the petitioner James, but also the neighborhood generally; that the citizens of Leasburg had no other way to the said mill than that described, and the neighbors on the courthouse side of Leasburg were thrown still further out of the way.
The petition further set forth that the petitioner James had no other way of going to his said mill and land without going over the lands of others, than as above described, and it was not necessary to establish a public road, and the petitioners prayed an order to lay off a cartway from the Milton Road, etc.
The County Court dismissed the petition on the motion of the defendant, and the plaintiffs appealed to the Superior Court. The appeal coming on to be heard before the judge of the said court, his Honor ordered that judgment be entered against the defendant in the said petition for costs, and that the prayer of the petitioner be granted and that a writ of procedendo issue to the County Court accordingly. From which judgment the defendant appealed to the Supreme Court.
When this case was heard on the circuit I was so entirely satisfied that the cartway petitioned for would be (18) a matter of great convenience to the petitioners and other citizens of Leasburg and its vicinity, by giving them a road to mill not exceeding two miles in distance, instead of a roundabout road, over bad ground, exceeding four miles, that my attention was diverted from a particular examination of the statute, and I contented myself with a general impression that the meaning of the act was to establish a third sort of road, called a cartway, intermediate between a public road, which was to be kept up at the public expense and used by all the citizens, and a mere private way, which, when acquired by grant or prescription, was to be used by the grantee and those having his estate.
After the argument in this Court, and by the assistance of the great learning and long experience of the (19) Chief Justice and my brother Nash, I have satisfied myself that I was wrong. "Hard cases are the quicksands of the law"; in other words, a judge sometimes looks so much at the apparent hardship of the case as to overlook the law.
However convenient it may be, in many instances, to have a cartway, when it may not be necessary to establish a public road, we are unable, by the most liberal construction of the act, to find any authority given to the courts to have the land of the citizens taken without the consent of the owner for the purpose of a cartway, except in the instance expressly provided for: "If any person shall be settled upon or cultivating any land to which there is no public road leading and no way to get to and from the same other than by crossing other persons' lands." In this case there is a public road leading to the mill and land of the petitioners; it, therefore, does not come within the words of the act, and if we depart from the words, there is no stopping short of an unlimited discretion by which the land of one man may be taken for the use of another. To authorize this there should be a plain expression of the legislative will. In the absence of such provision, individuals must be left to depend upon the courtesy of good neighborship or the acquisition, by grant, of the right of private ways.
Let the decision of the court below be reversed and the petition be dismissed with cost.
PER CURIAM. Decreed accordingly.
Cited: Caroon v. Doxey, 48 N.C. 24; Burgwyn v. Lockhart, 60 N.C. 266; Warlick v. Lowman, 103 N.C. 124; Burwell v. Sneed, 104 N.C. 121; Collins v. Patterson, 119 N.C. 604.
(20)