Collins v. Creecy, 53 N.C. 333, 8 Jones 333 (1861)

June 1861 · Supreme Court of North Carolina

53 N.C. 333, 8 Jones 333

E. A. COLLINS v. AUGUSTUS CREECY.

The statute, Rev. Code, chap. 101, sec. 14, gives the overseer of a road (acting in good faith) power to cut poles, &c., on any land adjoining liis sec-’ tion, and he is not confined to the land immediately adjoining the spot where the work is to be done.

This was an action of trespass quake clausum ereg-it, tried before IIeatii, J., at the last Spring Term of Chowan Superi- or Court.

The plaintiff declared for an entry, by the defendant, on her enclosed lands and cutting and carrying away some oak trees therefrom. She proved that she was in the possession of an enclosed field, in one end of which there was an oak grove, which field and grove abutted on the public road; that no one was permitted to cut trees there save her own hands, and they none but dead trees, that the defendant entered thereon and cut down five oak trees of small size ; that witness told the defendant he better not cut any more of these trees, else he might get into trouble about them; that he then cut no more.

The defendant then proved that he was the duly appointed overseer of the road on which the enclosure and grove abutted, and to some considerable distance beyond the premises described; that as such overseer, he was making and repairing some bridges on the road where they were necessary; that these bridges were at a considerable distance beyond the plaintiff’s land and opposite to that of other persons, and that the said timber was used for the purpose of repairing a bridge on the road.

The plaintiff then proved that there was other timber on uninclosed ground opposite to this grove, but it was described as being large pine, and not so good as oak for the purpose intended, and that further off — opposite to points where the bridges were, on the lands of other persons, there was timber fitting for such purposes, but it was in a swamp and difficult to be got; that between this last described jdace and the site of the bridges, one McCoy had a small oak grove. It was further in proof, that these bridges had been formerly constructed of pine timber.

The Judge charged the jury : First, if the overseer entered — cut down and carried away the timber for the purpose of making and repairing the bridges in the road under his charge, and he acted in good faith, the defendant was entitled to their verdict. But, secondly, if they believed the occasion was used as a pretext, and he entered, cut and carried away the timber maliciously, with an intent to injure, harrass and vex the plaintiff, the j>laintiff was entitled to their verdict for the actual damage done her; to which, punitory damages might be added. Plaintiff excepted.

Yerdict for the defendant. Judgment and appeal.

Winston, ■Jr., for the plaintiff.

■jBcvrnes, for the defendant.

Pearson, C. J.

The statute requires overseers of roads to make and repair bridges and causeways, and to enable them to do so, they are authorised to cut poles and other necessary timber, and provision is made for compensation to the owner of the land by tin application to the county court; Eevised Code, chap. 101, sec. 14, 15, 16.

This is an instance of the exercise, on the part of the sovereign, of the right to take private property for the use of the public, making compensation.

No question is made in regard to the right, but as the property is taken without the consent of the owner, it is proper that the statute should be construed strictly, so as not to carry its operation farther than is sufficient to meet the public necessity which called for the enactment. Giving the plaintiff the benefit of this principle, we are of opinion that the statute gives the overseer power to cut poles, &c., on any land adjoining his section of the road, and that he is not confined to the land immediately adjoining the spot where the work is to be done. The words of the statute aré general, and do not point out the place where poles may be cut. So, while, on the one hand, we do not adopt the construction that the overseer may cut poles on any land where he pleases within the county, because so large a power is not necessary for the purpose of the statute, on the other, we do not restrict its operation to the very spot where the causeway or bridge is to be made; because that might defeat the purpose of the statute. For instance: Suppose the place where a causeway is needed, to be in a lane, no woods within half a mile.

As the land of the plaintiff adjoined the defendant’s section of the road, he had the power, according to the true construction of the statute, to cut poles, and the question turned on the manner in which he exercised it. Did he abuse the power ? or did he act Iona fide ? with a single eye to the discharge of his duty? Ve entirely approve of the manner in which this question was left to the jury. There is no error.

PeR Curiam,

Judgment affirmed.