State v. Seawell, 10 N.C. 193, 3 Hawks 193 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 193, 3 Hawks 193

State v. Seawell and others.

1 From Cumberland,

Where the proprietors of a public bridge, in order to draw travellers from a public ferry, open a private road, by permission of the owner of the soil, above the ferry, leading to the foot of the bridge, .and erect a small bridge over an intervening creelt, such proprietors are not indictable for any defect in the small bridge.

Indictment for not repairing a bridge. — A special verdict was returned, in substance as follows:

The Defendants are the proprietors of a toll-bridge, called Clarendon Bridge, erected on the river Cape-Fear, at Fayetteville, by an act of the Legislature passed in 1818. On the river south of the bridge, there is a ferry, called Lord’s ferry, at which the public road from Wilmington, meets the public road from Raleigh : between these roads, runs a creek, called Lord’s Creek, which empties into the river at the ferry, and to pass from the Wilmington to the Raleigh road, above the point of junction at the terry, it is necessary to cross Lord’s Creek. The Defendants, by permission' of tiie proprietors of the soil, have opened a private road, from the Wilmington road to Lord’s Creek; and also a private road, from the foot of Clarendon bridge to the Raleigh road; and have placed a bridge over Lord’s Creek, so as to open a communication between the Wilmington and Raleigh roads above the ferry ; and at the point, at which the private road leaves the Wilmington road, they have erected a sign-hoard with the inscription, “ the best way to Fayetteville.” The road leading from Wilmington, across to the Raleigh road is much used, and those who come from Wilmington, must travel this road and cross Lord’s Creek, if they enter Fayetteville by means of Clarendon Bridge.

The bridge erected by the defendants over the creek, was out of repair when the bill was found.' — Yerdictfor defendant, State appealed.

Ham, Judge.

It is admitted, that the road which led over the bridge in question, was not a public road; it had not been established by law. There was no contract between the Defendant and the Public, in consequence of which the bridge was built; and the building of the bridge, could not certainly create a contract, by which the Defendant was under any obligation to the Public to keep it in repair; he put it there by the consent of the owner of the land, there was no obligation on him to do so, and his having done so, creates no obligation on him to keep it up.

Tayeor, Chief-Jastice, and Henderson, Judge, Con-burred.