Opinion
June Term, 1825.
The design of notice of an intended petition to lay off a road is that the owners of the land may come forward and object; but the act did not intend that the establishment of a necessary road should be impeded for the want of twenty days notice, if, before an order is made for laying of the road, ample notice is given to the owner. Where, therefore, a petition for a new road is filed, and is continued in court three years, during which time the owner of the land opposes the petition, continues the cause, appeals to the Superior Court, etc., he cannot, after these steps taken by him, object to the want of twenty days notice, for his conduct shows that he has had ample notice.
APPEAL from Norwood, J., dismissing an appeal taken by the defendant from the decision of ANSON County court in the matter of a road.
Little and others, at October Term, 1821, filed a petition praying to have a new road laid off, and gave notice in writing of their intention so to do all who owned the land over which it would pass, except to themselves, the petitioners, and to one William May, who, it was alleged, owned some of the land. The cause was continued on the docket until January Term, 1822, and from that term to April Term, 1822, the pendency of the petition was duly advertised at the courthouse door. At April term Daniel May, who opposed the petition, had the cause continued until July Term, when the county court directed a jury to lay off the road, etc., and return their proceedings to the next court. From this order Daniel May appealed to the Superior Court.
In the Superior Court motions were submitted on both sides. The defendant moved to dismiss the petition on the ground that notice in writing had not been given to William May, who was the son of Daniel; and to prove W. May's ownership, he read a conveyance from one of the petitioners to himself for land over which the contemplated (600) road would pass, dated 13 August, 1821; this deed was neither proved nor recorded; and a deed from himself to W. May for the same land, dated 15 September, 1821, acknowledged by the defendant at October Term, 1822, and registered in December following. William May was proved to have been of the age of 18 years at the time the deed bore date, was living with his father, and not about to settle himself; and there was contradictory evidence as to the time when the deed was really executed.
To this it was answered, first, that the objection of want of notice should have been made at an earlier stage of the proceedings, in the county court, on the hearing of the petition; second, that W. May was not owner of the land when the petition was filed, nor was he now, because the deed to the defendant was not proved and registered, and the deed from the defendant to W. May was not proved and registered until after the judgment in the county court; and, third, that filing the petition at January Term, 1822, and continuing it over to April, 1822, with public advertisement in the meantime, is notice to all persons under the act of 1813, ch. 862, N. R.
The plaintiffs moved to dismiss the appeal, first, because the appeal bond was made payable to Little only, and not to all the petitioners, and was signed by but one security, who had not affixed his seal to his signature; second, on the ground that it was an appeal from an interlocutory judgment, the final judgment in such cases being to confirm the report of the jury, etc.
The judge dismissed the appeal and directed a procedendo to the county court, whereupon the defendant appealed to this Court.
The design of the notice required by the act of 1813 is to enable the owners of land over which the new road may run to come forward and urge to the court such objections, either of a public or private nature as may show it to be inconvenient, useless or unjust; but it certainly was not intended that the establishment (601) of a useful public road should be impeded by the omission of twenty days previous notice if, before the order for laying off the road is made, ample notice is given to the owner to enable him to provide evidence and make a defense. It appears, in this case, that Daniel May had notice at October session of the county court in 1821, at which time he opposed the petition; and if at that time the order had been made for laying off the road the want of twenty days previous notice would have been fatal to its validity. But from that time he continued to defend the petition; it was continued once at his request; he carried it up by appeal to the Superior Court; and if after a notice of three years he could not prepare for his defense, the notice of twenty days prior to filing the petition would have availed him but little. The decision of both courts was made with full notice to the defendant; and it is impossible to sustain the objection now taken without manifest injustice. Notice to Daniel May is equivalent to notice to William, who was a minor and lived with him.
PER CURIAM. Affirmed.
Cited: S. v. Smith, 100 N.C. 554.