Mayo v. . Thigpen , 107 N.C. 63 ( 1890 )

MERRIMON, C. J., dissenting. The facts are sufficiently set out in the opinion of the Court. This is a petition for a cartway. The township supervisors, after "hearing the testimony, viewed the premises and maturely considered the whole matter," all parties being present, adjudged that it was "necessary, reasonable and just" that the petitioner should have the cartway prayed for, and appointed freeholders to lay off the same and assess damages. From this order the defendant appealed to the board of county commissioners, who, "after hearing testimony pro and con, and argument of counsel," sustained in all respects the judgment of the township board of supervisors. From this judgment the defendants appealed to the Superior Court. The cause coming on for trial in that court, the following issue was submitted to the jury: "Is the cartway proposed by the plaintiff necessary, reasonable and just?" To which the jury responded in the affirmative, and the court having rendered judgment in favor of plaintiff, the defendant appealed to this Court.

It was in evidence that plaintiff owned two tracts of land — one lying on the public road; the other distant from the public road — 1,000 yards; that between the plaintiff's two tracts of land was a (65) tract of land, entirely woodland, 200 yards wide and 900 yards long, which cut off plaintiff's last-mentioned tract (which is in cultivation and on which is a tenant house) entirely from any access to the public road, except that it is connected by a narrow strip of land belonging to plaintiff, with plaintiff's other tract on the public road. This strip, however, was "wholly unfit for a cartway, by reason of the great number and size of ditches to be crossed and its being continually subject to inundation and overflow."

The defendant asked the court to instruct the jury: "The plaintiff's land, both tracts adjoining and one lying on the public road, if you believe that plaintiff can pass from all parts of his land to the public road without going on defendant's land, you will find the issue in favor of defendant." The court did not give the instruction as asked, but charged, instead thereof, that if plaintiff could have a practicable cartway over the strip of his own land, above referred to, then it was not necessary to have it laid off over defendant's land, and the jury should answer the issue "No." To the failure to give the instruction in the words asked, the defendant excepted, and this is the only error assigned for review.

The instruction given differs from that asked only in the addition by the court of the word "practicable." In this we think there is no error. Webster defines "practicable" as "admitting of use, passable," and gives as an illustration a "practicable road, i. e., a passable road," and Stormouth gives a similar definition and the same illustration. The petitioner is entitled to a passable cartway, admitting of use, to the public road. As the court told the jury, if he could get this by laying it off over the narrow strip connecting this land with his other tract, which lay on the public road, then he could not have it over defendant's land. The jury found that such was not the case. The defendant's proposition "sticks in the bark." A man may have a tract of (66) land, distant from the public road, connected by an impassable swamp or other barrier with another tract of his land, which last is accessible to the public road, and defendant's proposition would make the first tract inaccessible and incapable of use. And in this case, by reason of the strip being "continually subject to overflow and inundation," the jury have found that a cartway over it would be impracticable, as did two other tribunals previously, one of them consisting of neighbors who viewed the premises personally, and who, it is to be presumed, had knowledge of the frequency and extent of the inundations to which the strip of land was "continually subject." To confine plaintiff to an impracticable cartway, continually subject to interruption, would make his land valueless, for no tenant would occupy a house in which he might be cut off at any time, and possibly for days at a time, from procuring the services of a physician, obtaining food for his family, and all other intercourse with the outside world which might be necessary.

We do not think the defendant has a right to refuse the plaintiff a passable outlet, the more especially as he can suffer no loss himself thereby, as impartial freeholders will be appointed to assess any damages he may sustain. Code, sec. 2056.