Parsons v. Wright
| Decision Date | 03 November 1943 |
| Docket Number | 377. |
| Citation | 27 S.E.2d 534,223 N.C. 520 |
| Parties | PARSONS v. WRIGHT et ux. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
Petition in special proceedings before the Clerk of the Superior Court to establish a cartway. The plaintiff owns a lot, upon which is located a tenant house, in the town of Star. The defendant D.T. Wright owns an adjoining lot which lies between plaintiff's lot and the public street. The only way of access plaintiff has to his lot is over a driveway across the municipal cemetery. He seeks to have a cartway established extending from the northeastern edge of his lot along the eastern end of defendants' lot to the street. Defendants deny the right of the plaintiff to the cartway and challenge the jurisdiction of the clerk.
The clerk entered an order granting the petition and appointing commissioners to lay out the cartway and assess the damages. Defendants appealed to the Superior Court. When the cause came on to be tried in the court below there was a verdict and judgment for the plaintiff, and the defendants appealed.
L.L. Moffitt, of Troy, and J.A. Spence, of Asheboro, for appellants.
Seawell & Seawell, of Carthage, and G.D.B. Reynolds, of Albemarle, for appellee.
Does the Clerk of the Superior Court have jurisdiction of a proceeding to lay off and establish a cartway within a municipality? If this question is resolved in favor of the defendants the other questions presented on this appeal become immaterial.
"The term highway is the generic name for all kinds of public ways, whether they be carriage-ways, bridle-ways footways, bridges, turnpike roads, railroads, canals, ferries, or navigable rivers." Bouv.Law Dict., Rowle's Third Rev. p. 1438, Tit. Highway; Elliott, Roads and Streets, p. 1; 25 Am.Jur., 340.
The term "street" is ordinarily applied to a public way in a city, town, or village, and the word "road" to a free public way in the county, while the two--roads and streets--include all public highways by land, whether designated as highway, road, street, alley, lane, place, or boulevard. 1 Lewis Em.Dom. (3rd), p. 171; 25 Am.Jur., 342.
Cartways are public roads in the sense that they are open to all who see fit to use them, although the principal benefit inures to the individual or individuals at whose request they were laid out. The term is used merely for the purpose of classification and to distinguish a class of roads benefiting private individuals who, instead of the public at large, should bear the expense of their establishment and maintenance. They are designated quasi-public roads, and the condemnation of private property for such use has been frequently sustained upon that ground as a valid exercise of the power of eminent domain. Cook v. Vickers, 141 N.C. 101, 58 S.E. 740; Barber v. Griffin, 158 N.C. 348, 74 S.E. 110; Waldroup v. Ferguson, 213 N.C. 198, 195 S.E. 615; 50 C.J., 380, sec. 5. They are properly considered an auxiliary part of the public road system of the county, although they are distinguished from public highways proper. Cook v. Vickers, supra.
The term "alley" relates exclusively to a way in a town or city. 13 R.C.L., 18, sec. 7. When not qualified by the word "private," it is a narrow passage for the convenience of the owner of property abutting thereon and of the persons dealing with him. 13 R.C.L., 18, sec. 7, 25 Am.Jur., 343. It is available for all who desire to use it, and it forms a part of the system of streets or public ways of the town or city. 2 C.J., 1151; 3 C.J.S., Alley, p. 885.
Hence, a quasi-public way located in a rural section is, under our statute, a cartway. When it is within the corporate limits of a town or city it is an alley. Location determines the name, but the essential characteristics are the same.
Primarily, all power over all thoroughfares is with the Legislature. This power has been so delegated by the Legislature as to give control of urban ways to the cities and towns, and of suburban ways, other than state highways, to the county boards--now the State Highway Commission. Ch. 145, P.L.1931. In keeping this control subdivided, an orderly system has been provided with reference to the establishment, improvement, repair, and vacation of ways, and the sources from which the necessary funds are derived, and the officers executing these various functions and expending such funds.
When a municipal corporation is established it takes control of the territory and affairs over which it is given authority to the exclusion of other governmental agencies. The object of incorporating a town or city is to invest the inhabitants of the municipality with the government of all matters that are of special municipal concern, and certainly the streets are as much of special and local concern as anything connected with a town or city can well be. It ought, therefore, to be presumed that they pass under the exclusive control of the municipality so soon as it comes into existence under the law. Gunter v. Sanford, 186 N.C. 452, 120 S.E. 41; 1 Elliott on Roads and Streets, sec. 505; 2 Cooley on Taxation, 1251; 44 C.J., 889, sec. 3608. See also Gastonia v. Cloninger, 187 N.C. 765, 123 S.E. 76.
It is usually given express power by its charter to lay out and open streets. Such is the case here. Ch. 84, Private Laws, 1913. Charter provisions are supplemented by our general statutes. C.S. § 2787. Under the power thus conferred the municipal authorities are the sole judges of the necessity or expediency of exercising that right. 44 C.J., 889, sec. 3608. Its power over its streets is exclusive. Moore v. Meroney, 154 N.C. 158, 69 S.E. 838; Waynesville v. Satterthwait, 136 N.C. 226, 48 S.E. 661; Michaux v. Rocky Mount, 193 N.C. 550, 137 S.E. 663. County authorities embracing such city or town are precluded from exercising the same power within the same territory. 1 Lewis Em.Dom. (3rd), 700, sec. 383. (See n. 24 for authorities). "In the nature of things, there can be no divided control of the streets within the limits of a city ***." McGrew v. Stewart, 51 Kan. 185, 32 P. 896, 897; Board of Com'rs v. Chicago, M. & St. P. Ry. Co., 28 S.D. 44, 132 N.W. 675, Ann.Cas.1914A, 1048.
This authority extends to alleys as a part of the system of streets. C.S. § 2787(11), Pub.Laws 1925, c 200. "When it is proposed by any municipal corporation to condemn any land *** for the...
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