Opinion
(Filed 2 June, 1922.)
1. Easements — Way of Necessity — Cartways — Statutes — Public-Local Laws.
While, under the provisions of our general statute, C. S. 3836 et seq., a petitioner who already has an outlet from his lands to a public road, reasonably sufficient for the purpose, is not allowed to have an additional or different cartway established merely because a shorter and better route can be shown, it may be otherwise when the petitioner has proceeded under the provisions of a special local law applicable to a certain county allowing it under certain conditions, the provisions of the local law controlling those of the general statute on the subject.
2. Same — Counties — Petition — Evidence — Nonsuit — Questions for Jury — Trials.
Where, under the provisions of a public-local law, the commissioners of a county, etc., upon petition, may cause a private cartway over the lands of an adjoining owner to be established upon sufficient reason shown: Held, the general law, C. S. 3836, is not applicable, and upon appeal by the petitioner from the refusal of the county commissioners to order the cartway made, it is error for the Superior Court judge to dismiss the action as of nonsuit upon the evidence, which, if accepted by the jury, would entitle the petitioner to have his cartway in accordance with the terms of the local statute applicable.
APPEAL by plaintiff from Brock, J., at January Term, 1922, of HAYWOOD.
Alley Alley and Morgan Ward for plaintiff. Grover C. Davis and W. J. Hannah for defendant.
Proceedings to establish a cartway over lands of defendant, under Public-Local Laws 1921, ch. 291, heard on appeal from action by board of county commissioners dismissing the petition. At close of plaintiff's evidence, on motion, there was judgment of nonsuit (656) entered against plaintiff, whereupon plaintiff excepted and appealed.
There was evidence on the part of plaintiff tending to show that he lived in Haywood County, one and a half miles east of Hazelwood, and that he had no public road and no cartway as of right leading out from his home to the public road. That he was using, by permission, a road over the lands of Frank Welch, Esq., which enabled him to reach a public road, but this was one mile further than the proposed cartway in reaching plaintiff's mill, church, schoolhouse, etc. That the proposed cartway to a public road, leading over defendant's land, had been used for fifty years of travel on foot and with vehicles, but it had never been laid off as a cartway, and there was doubt if it has been used as of right, and recently it had been closed to plaintiff by the owner, leaving him without a lawful or desirable outlet to the public road in the direction of his church, mill, and schoolhouse. There was evidence that a road led out to a public road towards the county site, but in an opposite direction to the one now petitioned for.
That the proposed cartway would be for 1,850 feet on plaintiff's own land, and only 750 feet on the lands of the defendant.
While a petitioner who already has an outlet to a public road, reasonably sufficient for the purpose, is not allowed to have an additional or different cartway established merely because a shorter and better route can be shown, we are of opinion that on the facts as they now appear of record, the plaintiff is entitled to have the question referred to a jury as to whether sufficient reasons exist for the proposed way. It will be noted that the proceedings are instituted under Public-Local Laws 1921, ch. 291, and not under the general statutes on the subject. C. S. 3836 et seq.
Under a similar special statute, and on substantially similar facts, the Court, in Cook v. Vickers, 144 N.C. 312, held that the question of whether sufficient reasons had been shown must be determined by the jury, having due regard for the rights of all persons interested in the matter, and we consider that case as decisive of the question as presented on this appeal.
The cases, referred to and relied upon by the appellee, of Warlick v. Lowman, 104 N.C. 403, and others, were decisions construing the general statute on the subject. It is not necessary now to determine whether the strict interpretation of the general statute as it prevailed in those authorities has not been modified by the rulings of Cook v. Vickers, (657) supra, for, as stated, these proceedings are instituted under the local law, and the disposition of the case is controlled by the later decision.
This will be certified that the judgment of nonsuit be set aside and the question submitted to the jury.
Reversed.