Carr v. Hairston, 4 N.C. 249, 1 Car. L. Rep. 249 (1811)

July 1811 · Supreme Court of North Carolina

4 N.C. 249, 1 Car. L. Rep. 249

Carr v. Hairston.

The County Court of Stokes ordered that the road crossing Dan-River at Bostick’s old place should be discontinued; and after this order was made, Hairston run a fence across the road, and kept it up for the space of one month and more. Carr brought a warrant to recover the penalty given by the 13th section of the act of 1784. The road was discontinued without the intervention of a jury: And it is submitted to the Supreme Court, to decide, whether, as the order for discontinuing the road was not founded upon the report of a jury, the same be valid and effectual in law to discontinue the said road. If it be not, judgment to be entered for the plaintiff; otherwise for the defendant.

Henderson, J.

delivered the opinion of the Court.

By the act of 1784, in the laying out, altering, or changing roads, the interposition of a jury is necessary; and the law has directed that damages may be assessed and the most proper grounds pointed out, over which the road shall run. But in deciding in the first instance, that there shall be a road in a particular section of the country, or in discontinuing such roads as may be deemed useless, a jury has nothing to do; the whole power is given to the court. We therefore think the order of the County Court, discontinuing the road in question, is a legal one and such as the court might well have made. It follows therefore that the defendant is entitled to judgment.