Brooks v. Morgan

• Decision Date: 30 June 1845
• Citation: 5 Ired. 481,27 N.C. 481
• Parties: WILLIAM BROOKS v. DRURY MORGAN.
• Court: North Carolina Supreme Court

5 Ired. 481

27 N.C. 481

WILLIAM BROOKS

v.DRURY MORGAN.

Supreme Court of North Carolina.

June Term, 1845.

In the case of a petition for the condemnation of an acre of land for the site of a public mill, under our act of Assembly, (Rev. St. ch. 74, sec. 2) where the County Court ordered a condemnation of the land, and refused an appeal from that order, to the party owning the land-- Held, that the Superior Court was right in ordering a certiorari to bring up the proceedings before them.

Although an appeal, which is in the nature of a new trial on the facts and merits, cannot be sustained, unless expressly given by statute, the Superior Court will always control inferior magistrates and tribunals, in matters for which a writ of error does not lie, by certiorari to bring up their judicial proceedings to be reviewed in the matter of law; for, in such case, the certiorari is in effect a writ of error, as all that can be discussed in the court above are the form and efficiency of the proceedings, as they appear upon the face of them.

The cases of Raleigh and Gaston Rail Road v. Jones, 1 Ired. 24, and Collins v. Haughton, 4 Ired. 420, cited and approved.

Appeal from the Superior Court of Law of Union county, at the Fall Term, 1844, his Honor Judge MANLY presiding.

The present defendant, Morgan, filed his petition in the County Court of Union county, at July Term, 1843, setting forth that he owned a tract of land lying on Rocky River, in the county of Stanly, and also a quarter of an acre on the opposite side of the river, and situate in Union county, and that, except the said quarter of an acre, the present plaintiff, Brooks, was the proprietor of the land lying on the river in Union and opposite to the land of Morgan, situate in Stanly, as aforesaid. The petition stated that he wished to build a public grist mill on the said stream, and that he could not do so, unless he could get one acre of the said land of Brooks, opposite to his own as aforesaid. The prayer was for a summons to Brooks, and that the court would order four freeholders to lay off, view and value on oath, an acre of the said land of Brooks, and also an acre of the land of the petitioner opposite, and report their opinion and proceedings to the court.

At October Term, 1843, Brooks appeared by attorney, but put in no answer, and the court made an order, appointing four persons “to lay off and value an acre of the land of the defendant in the petition mentioned and report.”

At January Term, 1844, the transcript of the record states, that “the report of the commissioners was filed;” but it does not set it forth. The transcript then proceeds as follows: “In this case it is ordered and adjudged, that the report of the commissioners be confirmed. Whereupon, it is further ordered, that the said report be recorded; and that said Drury Morgan have leave to erect a mill, as prayed for in his petition, on said acre of land, and that he pay the costs of the suit; and thereupon the said Morgan pays down in court, for the use of the said defendant, Brooks, the sum of ten dollars, the valuation of the acre of land condemned by the said commissioners.” From that order Brooks prayed an appeal, which was refused by the court.

At February Term, 1844, of the Superior Court, Brooks moved for and obtained a certiorari to bring up the proceedings, upon his affidavit, in which he stated, besides the refusal of the court to allow him an appeal, that Morgan owned on the Union side of the river, not only one quarter of an acre, but eighteen acres of land, on which he had erected a mill, which was in full operation at the filing of the petition. In an affidavit exhibited by Morgan, in answer to that of Brooks, he admits that he owned eighteen acres of land on the South or Union side of the river, and that he had a mill on it, the race of which ran through it; but he says he was not able to erect a mill thereon, that would be of public benefit or of profit to himself, for the want of some way to get the water off from the wheels into the river again, and that an acre of Brooks' land, as laid off, was essential for that purpose.

Upon the case being called in the Superior Court, the counsel for Morgan moved to quash the certiorari, because it had improvidently emanated, inasmuch as no appeal was given by law in this case, and therefore the Superior Court could not take jurisdiction of it in any way. The court refused the motion, but allowed the defendant, Morgan, to appeal, and ordered the affidavits and proceedings, herein before stated, to be sent up as presenting the question between the parties.

Osborne for the plaintiff .

Alexander for the defendant .

RUFFIN, C. J.

The Court is of opinion, the decision was right. We, agree, that no appeal lies in such a case for the purpose of a re-hearing in the Superior Court, but that the decision upon the facts by the County Court and freeholders is final. It was undoubtedly so under the act of 1777, ch. 122, which gave this peculiar proceeding, and which is silent as to allowing an appeal; and the general provisions for appeals in the act of that year, ch. 115, sec. 75 and 77, we have held, do not apply to summary and peculiar proceedings, not according to the course of the common law, but prescribed by statute under particular circumstances. Raleigh and Gaston Rail Road v. Jones, 1 Ired. 24,-- Collins v. Haughton, 4 Ired. 420. It is insisted, however, for the appellee in this Court, that under the Rev. St. ch. 74, sec. 17, appeals are given “in all cases arising under that act,” and that, consequently, this case is included. But we think that section is, by necessary construction, to be confined to those parts of the act, which relate to the overflowing of land by mill ponds and the recovery of damages therefor....