Burwell v. Sneed

• Decision Date: 28 October 1889
• Parties: BURWELL et al. v. SNEED et al.
• Court: North Carolina Supreme Court

10 S.E. 152

104 N.C. 118

BURWELL et al. v. SNEED et al.

Supreme Court of North Carolina

October 28, 1889

Appeal from superior court, Vance county; R. F. ARMFIELD, Judge.

This is a petition by Armistead Burwell and others for a cartway begun before the supervisors of the township. It appears that the principal petitioner is the owner of a tract of land embracing 148 acres, and an additional adjoining tract of 8 acres, on which is situate a grist-mill; and that Calvin Burwell, who joins in the petition, is a tenant of the principal petitioner, and cultivates 3 or 4 acres of the smaller tract. A public road passes by, and there is outlet to it from the larger tract mentioned, but no public road touches, passes through, or leads from the smaller tract. The petition prays that a cartway be kept open across the lands of the defendant to a public road. The defendant alleged that the petitioners had sufficient outlet, and that the cartway prayed for was not "necessary, reasonable, and just," etc. On the trial in the superior court the plaintiff offered to introduce a map of the lands of Burwell made by the surveyor appointed by the court of Mecklenburg county, Va., to survey said land for partition, upon which was shown the various roads alluded to. Defendant objected. Objection sustained. He proposed to ask witness if, in his opinion, it would be necessary, reasonable, and just to plaintiff to have the road opened as prayed for. Defendant objected. Objection sustained. There was evidence tending to prove that the tenant petitioner had a way by which he could reach a public road over the principal tract mentioned, but it was not a very good one, was longer and less convenient especially to patrons of the grist-mill situate on the smaller tract. The jury found that there was no public road leading to the land, (the smaller tract,) and that it was not "necessary, reasonable, and just that the cartway should be laid out over the lands of the defendant." The plaintiff requested the judge to charge that, taking all the evidence together, defendant had shown no sufficient reason why the cartway should not be granted, which the court declined. Plaintiff then asked the court to charge that plaintiff had shown the cartway was necessary, reasonable and just, and they should find the second issue in favor of plaintiff, which the court refused. Plaintiff then moved for judgment upon the verdict, upon the ground that, the first issue having been found in his favor, there was no sufficient testimony to warrant the jury in finding the second issue in favor of defendant. Motion overruled. Plaintiff excepted. The court gave judgment for the defendant, and plaintiff appealed.

Graham & Winston, for plaintiff.

T. T. Hicks and A. C. Zollicoffer, for defendant.

MERRIMON J.

The first and second exceptions cannot be sustained. The map was offered in evidence to prove the existence and location of certain alleged roads designated on it by appropriate indicia. It was not a public map; nor was it made in pursuance of an order of survey made in this case; nor was it to be used, so far as appears, simply to help a witness testifying to explain his testimony to the court and jury. It had no sanction or quality that made it, of itself, evidence. Jones v. Huggins, 1 Dev. 223; Dobson v. Whisenhant, 101 N.C. 645, 8 S.E. Rep. 126.

The inquiry before the court did not involve any question of science, peculiar skill, or professional knowledge. Whether it is necessary, reasonable, and just that a particular cartway shall be allowed involves facts plain and simple in their nature and application, that ordinary jurymen readily...