Collins v. Patterson

• Decision Date: 21 December 1896
• Citation: 26 S.E. 154,119 N.C. 602
• Parties: COLLINS v. PATTERSON.
• Court: North Carolina Supreme Court

26 S.E. 154

119 N.C. 602

COLLINS v. PATTERSON.

Supreme Court of North Carolina

December 21, 1896

Appeal from superior court, Swain county; Timberlake, Judge.

Petition by D. K. Collins for the construction of a cartway over the lands of A. C. Patterson. There was a judgment for petitioner, and defendant appeals. Reversed.

F. C Fisher and W. L. Watson, for appellant.

FURCHES J.

This is a petition for a cartway over the land of the defendant. To entitle the plaintiff to the relief demanded, he must allege (and show, if denied) that he is the owner of, and resides upon, or has in cultivation, the land to which there is leading no public road, and that it is reasonable and just that he should have the road prayed for. Code, § 2056. In this case the plaintiff makes all these necessary allegations, but they are denied by the defendant. This raised the issues, and, among them, one as to whether the cartway prayed for by the petitioner leads from his land to a public road. This was a material issue, that should have been submitted to the jury upon the evidence and proper instructions from the court; and in this is involved the question as to what is a public road. A public road is a road dedicated to the public use, and kept up by the public; that is, worked by an overseer appointed according to law, with hands assigned to him for that purpose. A road may be traveled by the public for 50 years by the permission of the owner of the land, without becoming a public road. Boyden v. Achenback, 79 N.C. 539, cited with approval in State v. Fisher, 117 N.C. 739, 23 S.E. 158, and many other cases. Then, if this road, with which the plaintiff asked to have his road intersect, was not a public road,--that is, had not been dedicated to the public use and kept up by the public, as above indicated,--it was not such a public road as entitled the plaintiff to a cartway as demanded. Code, § 2056; Warlick v. Lowman, 103 N.C 122, 9 S.E. 458. It seems the plaintiff made no effort, on the trial, to show that this road, with which he wished to intersect his cartway, was a public road. But it seems that it was conceded to be only a public neighborhood road, over which the plaintiff and others traveled by permission of the defendant; and, if this was so, it should have ended the case. Code, § 2056; Lea v. Johnston, 9 Ired. 15. If it was not conceded, then it should have been submitted to the jury, and found by them. Therefore,...