Leath v. Summers, 25 N.C. 108, 3 Ired. 108 (1842)

Dec. 1842 · Supreme Court of North Carolina

25 N.C. 108, 3 Ired. 108

FREEMAN LEATH AND OTHERS vs. JACOB SUMMERS AND OTHERS.

December 1842.

In a petition to turn or change a public road, it must be alleged that the new road is necessary, or would he more useful to the public — otherwise the petition will he dismissed.

Appeal from the Superior Court of Law of Caswell County, at Fall Term, 1842, his Honor Judge Settle presiding.

This was a petition to alter a public rood between certain termini designated in the petition, and was brought up by appeal to the Superior Court. The petitioners merely prayed for an alteration of the road without assigning any reasons therefor. A copy of the petition had been served on the defendant, who appeared and opposed it. At the hearing the counsel for the defendant moved to dismiss the petition, 1st, for the want of sufficient matter set forth in the petition to enable the court to found any decree thereon : 2ndly, because of a former decree on the same subject matter between ’.hese parties in the Court of Pleas and Quarter Sessions of Has well, at April Term, 1841; and, in support of the latter petition, he produced a petition and the records of the County Court, shewing a hearing of the petition at April Term aforesaid, upon the testimony of witnesses and argument of counsel, and a decree dismissing the said petition at the costs of the petitioners. His Honor being of opinion with the petitioners upon the latter question, refused the motion to dismiss upon that ground ; but, being satisfied that the petition was so defective as not to authorize any decree, directed the same to be dismissed at the costs of the petitioners. From this decree the petitioners appealed to the Supreme Court.

W. H. Haywood for the petitioners.

Morehead for the defendant.

Daniel, J.

This was a petition to turn a road. The defendants moved the court to dismiss it, because there was no allegation in it, that the new road was necessary, or would be more useful to the public, The court, for this reason, dismissed the petition, and the petitioners appealed. We are of opinion that the judgment of the court was correct. By the 1st section of the act, Rev. iSt. c. 104, s. 1, the County Court has power to order the laying out of public roads, when necessary; and to alter roads as often as occasion shall require, so as to make them more useful. The seeon<^' seeti°a of the said aet, after pointing out the mode of proceeding in petitions of this kind, authorizes the County Court “ to hear the allegations set forth in the said petition;" and, if sufficient reasons be shewn, the court has power to order the laying out or discontinuance of the said road, as the case may be. This petition has no general nor particular allegation in it, that the road, sought to be established, would either be necessary or useful to the public. The court, therefore, had no power to- hear witnesses to prove any thing, except the allegations set forth in the petition; ánd these allegations ought to be such as to make a proper ease, eoming within the meaning of the Aet of Assembly. The petitioners did not move to amend their petition. The judgment must be affirmed.

Pei. Curias®. Judgment affirmed.