Opinion
June Term, 1853.
1. By an appeal from the judgment of the county court upon a petition to lay out a public road, the Superior Court acquires full possession of the cause, with power to proceed to a final hearing and judgment.
2. Therefore, when the county court dismissed such a petition, and the petitioners appealed, it was held, that the judge of the Superior Court, being of opinion that the prayer of the petition ought to be granted, properly ordered a jury to lay out the road, instead of awarding a procedendo to the county court.
(The cases of Leath v. Summers, 25 N.C. 108; Welch v. Piercey, 29 N.C. 365, cited and approved.)
THE plaintiffs filed their petition in the County Court of Alamance, praying the court to lay off a public road from Shaddy's Hill, on the Fayetteville road, south of, etc., by Geo. Kimery's, Henry Iseley's, etc., to intersect the Fayetteville road at or near Nelly Eulip's, etc. Advertisement was made according to the act of Assembly; and the defendants appeared and opposed the prayer of the petition. At March Term, 1850, of said court, the petition was ordered to be dismissed, and the plaintiffs appealed to the Superior Court. At May Term, 1850, of the said Superior Court, the following order was made: "This cause coming on to be heard upon the petition and the evidence of the witnesses, and the suggestion of counsel, the parties ask an imparlance, which is (281) granted; and afterwards, by consent of the parties, the opposition to the prayer of the petition is withdrawn, and by consent, it is declared by the court that the public convenience requires a public road to be laid off according to the prayer of the petition"; and it was ordered that a jury be summoned, etc. The jury returned their report to November Term, 1850, which was set aside; and another jury directed to be summoned, whose report, returned to May Term, 1851, was also set aside upon the affidavit of the defendant, Fogleman. And at the same term of the court, it was "ordered that another jury be summoned to lay off a road according to the prayer of the petition and terms of the compromise." Whereupon a writ issued commanding the sheriff to summon a jury "to lay off a public road from Shaddy's Hill, on the Fayetteville road, south of," etc. (according to the prayer of the petition); and the jury having made their report to the Fall Term, 1851, the defendants excepted thereto — first, that the road was not laid off according to the terms of the compromise made by the parties, nor according to act of Assembly — to wit, with the least damage to the enclosures of the lands of Turley Coble, etc.; and secondly, that the jury did not assess damages done to lands of certain owners sufficiently high.
J. H. Bryan for defendants.
P. Busbee, contra.
And the case being before Caldwell, J., at Spring Term, 1852, upon a motion to confirm the report of the jury, and testimony being heard on both sides, several objections arising out of the record were taken by the defendants; among others, that it was not competent for the Superior Court to order a jury upon the appeal from the county court, and that a procedendo ought to have issued. But his Honor overruled the objections, and from his judgment confirming the report of the jury the defendants appealed to the Supreme Court.
The defendants' counsel objects to the judgment of the Superior Court upon two grounds: First, because that court issued an order to the sheriff of the county, commanding him to summon a jury to lay off the road in question, instead of directing, by (282) a writ of procedendo, the county court to issue such order; secondly, because the report of the jury showed that the road had not been laid out according to the provisions of the Revised Statutes, chapter 104, section 4. Neither of these objections is well founded. In the third section of the act above referred to, which gives the right of appeal to any person who may be dissatisfied with the judgment, sentence or decree which the county court may make upon a petition to layout a public road, it is declared "that the appeal so granted shall be subject to the same rules and regulations as in other cases from the county courts to the Superior Courts; and the said Superior Courts shall proceed to hear and determine the said petition, as shall appear right and expedient." These words are clearly sufficient to give the Superior Courts jurisdiction to hear and determine all questions which may arise in the course of the proceedings on the petition, until the final judgment or decree confirming the report of the jury. If this were not so, two or more appeals from the county to the Superior Court might be necessary before the matter could be finally settled. But if the language of the act above quoted admitted of any doubt, it is completely removed by the proviso which immediately follows: "Provided, nevertheless, that nothing in this act contained shall authorize the Superior Court to interfere in fixing or regulating the rates of ferriage, tolls of bridges, or the distribution of allotments of hands to work under the overseers of the public roads." This exception shows the full power of the Superior Court in all other respects. An order similar to the one here complained of was made by the Superior Court in Davis v. Hill, 33 N.C. 9, without objection, though an appeal was taken to this Court from the judgment for costs.
For the second objection, the cases of Leath v. Summers, 25 N.C. 108, and Welch v. Piercy, 29 N.C. 365, were cited. The first of these cases decides only, that in a petition to turn or change a public road, it must be alleged that the new road is necessary or would be useful to the public. Such an allegation is expressly made in the petition now before us. In Welch v. Piercy, it was held that the county court had power to order a jury to lay out a public road, but could not itself lay it out; further, that it has no power, except as to the termini, to direct the jury how the road shall run — that being the exclusive province of the (283) jury. The order in our case directs the jury to lay out the road along the very route mentioned in the petition, and the report of the jury, though more particular in describing the line of the road which they had laid out, shows that they commenced and terminated at the places designated as its termini, and that in all other respects they obeyed the injunctions of the order. What were the terms of the compromise made by the plaintiff and defendant, does not appear on the record. Whatever they may have been, it is not shown that they induced the jury to deviate from the general route of the road which they were commanded to lay out.
There being no error in the judgment of the Superior Court, it must be affirmed, which will be certified according to law.
PER CURIAM. Judgment affirmed.
Cited: Russell v. Saunders, 48 N.C. 433; Purvis v. Robinson, 49 N.C. 98; Evans v. Mining Co., 50 N.C. 334; Morehead v. R. R., 52 N.C. 501; Caldwell v. Parks, 61 N.C. 55; Warlick v. Lowman, 104 N.C. 407.
Distinguished: Millsaps v. McLean, 60 N.C. 80.