State v. Shuford, 28 N.C. 162, 6 Ired. 162 (1845)

Dec. 1845 · Supreme Court of North Carolina

28 N.C. 162, 6 Ired. 162

THE STATE vs. ABEL H. SHUFORD.

The County Court has no authority to discontinue any pubfie road, but itpcoi the petition of one or more persons, filed in the Court, and the other necessary proceedings prescribed by the Act of Assembly, Rev. Stat. ch. 104, sec. 2. And any order for discontinuing a public road, made otlienvise than as the Act directs, is void.

A person who erects a fence across a public road, bo attempted to be discontinued, is liable to an indictment therefor.

Appeal from the Superior Court of Law of Caldwell County, at the Fall Term, 1845, his Honor Judge Bailey presiding.

The defendant was indicted for obstructing a public highway in the County of Caldwell. On the trial, the jury found the following special verdict, to-wit: “ That for many years a public highway existed, running from Morganton to Wilkesborough, by way of Harper’s Store and the sign-post mentioned in the indictment — that after the County of Caldwell was established in the year 1841, the town of Lenoir was located in the vicinity of Harper’s Store and tire said sign-post — that the County Court laid off and opened a new road from Harper’s Store to the said sign-post, passing through the village of Lenoir, which road has been used ever since as a part of the public highway — that it appears from the records of the County Court of Caldwell County, October terns, 1843, that the following order was made by the Court, lo-wit: “ Road: Ordered by Court, that the road from James Harper's to the Scott old field, near the town of Lenoir, be disannulled — the part from Waugh and Harper's Store to the sign-post near the town, of Lenoir.” And the jury further find that the road mentioned in the order, and that mentioned in the bill of indictment, are one and the same road, not different roads, which said road was used as a public highway until the making of this order. But they also find, that there is no evidence that the order disannulling the said road, was made upon any petition, and accordingly say there was no petition filed, praying that the said part of the said road should be dis-annulled. They further find, that the defendant, some time after the said order of the Court at October Term, 1843, was made, ran a fence across a part of the road mentioned in the bill of indictment — that the same was upon his own freehold, he being owner in fee of the land over which the'road passed. The jury, being unable to decide, refer the matter to the Court, and, if the Court, upon this statement of facts, thinks the defendant is guilty in law, they then find him guilty — otherwise, not guilty.”

"Whereupon, the Court, being of opinion that the said road was discontinued by the County Court, gave judgment for the defendant; from which judgment, the Solicitor for the State appealed,

ÁUe-niey General, for the State.

Guien and Miller, for the defendant;

Bauiel, J.

The Act of Assembly (Rev. Stat. ch. 104, sec. 2) declárés, that the County Courts shall not discontinue any public road, unless upon the petition in writing of one or mere persons, in the said Court filed. And that the petitioner or petitioners shall make it appear, that the persons, over whose lands the said road may pass, shall have had twenty days notice of the intention of filing the said petition. If the said netice is not given, the petition shall be filed in the Clerk’s office until the succeeding Court, and notice posted at the court-house door; at which Court, the Justices shall hear the allegations set forth in the petition, and shall have full power and authority to ■order the discontinuance or alteration of the road. And if any person shall be dissatisfied with the judgment, such person may appeal to the Superior Court, on entering into an appeal bond with two or more sureties; which bond shall be made payable to the person or persons, who shall have filed the said petition, or to such person or persons, who shall have opposed the same.

We here see, that, if the County Court could discontinue a public road, without a petition as aforesaid, no person could appeal from such judgment, because there would be no person to whom, lawfully, an appeal bond could be given ; or, if he could be permitted to appeal, and he should succeed in the Superior Court, there would be no person against whom he could recover his costs. The County Court had discontinued the road in controversy, without any person ever having filed a petition for that purpose ; and thereafter, the defendant ran his fence across it. He is not much to blame; but he cannot be permitted to say, that he was ignorant of the law.

The order made by the County Court, discontinuing the road, without any petition having been died for that purpose, was Aroid in law, as being beyond their jurisdiction, which, in this case, is special and limited by the Act of Assembly. The judgment must be reversed, and this opinion certified to the Superior Court, that it may proceed to judgment against the defendant on the special verdict.

Per Curiam. Ordered accordingly.