Opinion
(June Term, 1864.)
Where the applicant for a cartway over the land of another has already one or more convenient rights of way over the land of another to the public road or other public place to which he seeks access, his application shall be rejected, and if an order for a cartway has been previously obtained, the cartway will be discontinued on the petition of the owner of the land under Rev. Code, ch. 101, sec. 38.
PETITION to discontinue a cartway, tried before Shipp, J., at Spring Term of BUNCOMBE, 1864.
The defendant had obtained an order for laying off a cartway leading to his mill through the plaintiff's land, and the way had been laid off accordingly. This petition was filed in the county court to discontinue the way, and came to the Superior Court by appeal. On the trial in the Superior Court it appeared that the defendant is, and has been for many years, the owner of a gristmill, to which five different roads lead; that these roads have been traveled for many years, three of them for more than twenty years, and how much longer did not appear, and that these three had been used by the public for that time and more, but it did not appear that any of the roads had been laid off by order (201) of the county court, or that any overseer lawfully appointed had ever worked on them. In order to pass over said cartway it would be necessary for passengers to pass by the end of two of said roads that had been used by the public constantly for more than twenty years.
The judge ordered the cartway to be discontinued and gave judgment against the defendant for the costs.
Merrimon for plaintiff.
No counsel for defendant in this Court.
This was a petition to discontinue a cartway which had been line off according to the provisions of Rev. Code, ch. 101, sec. 37. The proceeding was instituted under section 38 of the same act which declares that "cartways laid off according to the preceding section may be changed or discontinued upon application of any person concerned, under the same rules of proceeding as they may first be laid off, and upon such terms as to the court may seem equitable and just."
We have decided at the present term in Burgwyn v. Lockhart, post, 264, that where the applicant for a cartway over the land of another has already one or more convenient rights of way to the public road or other public place to which he seeks access, so that it will not be "necessary, reasonable, and just" that he shall have the cartway laid off, his application shall be rejected, though such rights of way over the lands of others be not cartways. That decision disposes of the present case. There are several other ways leading to the defendant's mill which were constantly used by him and the public, and it was not "necessary, reasonable, and just," therefore, that the plaintiff's land should be (202) burdened with the cartway. The order of the court to discontinue it was proper, and must be
Affirmed.