Opinion
(September Term, 1896.)
Petition for Cartway — Highways — Public Roads.
1. A public road is one that is dedicated to the public and worked by an overseer appointed according to law.
2. A neighborhood road not dedicated to the public, but used by the public under permission or license of the owner of the land, is not a public road within the meaning of sec. 2056 of The Code, which provides that the owner of land in cultivation to which there is no road may maintain a petition for a cartway over the land of any other person connecting petitioners land with a public road.
PETITION for cartway, tried on appeal from an order of the Board of Supervisors of Charlestown Township, in Swain County, before Timberlake, J., and a jury, at Fall Term, 1895, of SWAIN. There was a verdict for the plaintiff, and defendant appealed from the judgment thereon. The facts appear in the opinion of Associate Justice Furches.
F. C. Fisher and W. L. Watson for defendant (appellant).
No Counsel contra.
This is a petition for a cartway over the land (603) of the defendant.
To entitle the plaintiff to the relief demanded, he must allege and show (if denied) that he is the owner of and resides upon, or has in cultivation, the land to which there is leading no public road, and that it is reasonable and just that he should have the road prayed for. Code, sec. 2056. In this case the plaintiff makes all these necessary allegations, but they are denied by the defendant. This raised the issues and, among them, one as to whether the cartway prayed for by the petitioner leads from his land to a public road. This was a material issue that should have been submitted to the jury upon the evidence and proper instructions from the Court, and in this is involved the question as to what is a public road.
A public road is a road dedicated to the public use and kept up by the public; that is, worked by an overseer appointed according to law, with hands assigned to him for that purpose. A road may be traveled by the public for fifty year by the permission of the owner of the land without becoming a public road. Boyden v. Achenbach, 79 N.C. 539, cited with approval in S. v. Fisher, 117 N.C. 733, and many other cases.
Then, if this road, with which the plaintiff asked to have his road intersect, was not a public road, that is, had not been dedicated to the public use and kept up by the public as above indicated, it was not such a public road as entitled the plaintiff to a cartway as demanded. Code, sec. 2056; Warlick v. Lowman, 103 N.C. 122.
It seems the plaintiff made no effort on the trial to show that this road, with which he wished to intersect his cartway, was a public road. But it seems that it was conceded to be only a public neighborhood road over which the plaintiff and others traveled by permission of the (604) defendant, and if this was so it should have ended the case. Code, sec. 2056; Lee v. Johnson, 31 N.C. 15. If it was not conceded, then it should have been submitted to the jury and found by them.
Therefore, in either view, there was error and a new trial is awarded.
Finding the error above pointed out, we have not considered the other points made in the case.
NEW TRIAL.
Cited: S. v. Combs, 120 N.C. 608; Wiseman v. Greene, 123 N.C. 396.