Opinion
June Term, 1828.
From Stokes.
An appeal lies to the Superior Court from a judgment of the county court, upon a petition for a cartway.
THIS was a petition originally filed in the county court, whereby the petitioner prayed that a jury be summoned to "lay off a cartway according to law, from etc., over the lands of Peter Hairston, etc."
Nash for the defendant.
No counsel for the petitioner.
A jury returned their verdict, laying off the way according to the prayer of the petition, and a judgment of confirmation was rendered in the county court, from which the defendant appealed to the Superior Court.
On the Fall Circuit of 1827, his Honor, Judge Strange, upon the motion of the petitioner's counsel, dismissed the appeal, holding that since the case of Wood v. Hood, 4 N.C. 126, the Superior Courts had no jurisdiction to revise such orders of the county courts.
From this decision the defendant appealed to this (369) Court.
In Hawkins v. Randolph, 5 N.C. 18, it was decided that an appeal would not lie to the Superior Court from an order of the county court concerning a public road. By the act of 1813, Rev., ch. 862, an appeal is given in such cases, but nothing is said either by the Court in Wood v. Hood, 4 N.C. 126, or by the Legislature in that act, respecting private ways or cartways, jurisdiction of which is given to the county courts by the act of 1798.
In Wood v. Hood, supra, it was held that a petition for a cartway so far resembled a petition for a public road that an appeal would not lie from a decision made on it, before the passage of the act of 1813, and that the act gave an appeal.
I think the act of 1813 does not give an appeal with respect to cartways, etc., but is confined altogether to public roads. In the present case the appeal is proper under the act of 1777, it being a contest between two individuals, and it does not fall within the reasons upon which an appeal was refused with regard to public roads.
The judgment of the Superior Court dismissing the appeal must therefore be reversed, and the cause remanded.
PER CURIAM. Judgment of the court below reversed, and writ of procedendo awarded.
Approved: Burden v. Herman, 52 N.C. 354.
(370)