Plimmons v. Frisby, 60 N.C. 201, 1 Win. 201 (1864)

June 1864 · Supreme Court of North Carolina

60 N.C. 201, 1 Win. 201

PETER PLIMMONS vs. WILLIAM FRISBY.

Wliere the applicant fur a cartway over the land of another has already one or more convenient rights of way over the land of another to the public road or,other public place to which he seeks access, his appli- . cation shall be rejected, and if an order fop a cartway has been previously obtained, the cartway will be discontinued on the petition of t the owner of the land under the 38th sec. of the lOl^ch. of Rev. Code.

TMs was a petition to discontinue a cartway tried before Shipp, J., at Spring Term of Buncombe Superior Court,. 1864.

Tbe defendant bad obtained an order for laying off a cartway leading to bis mill through the plaintiff’s land and tbe way had been laid off accordingly. . This petition was filed in the County Court to discontinué the way and came to the Superior Court by appeal. On the trial in the Superior Court it appeared that the defendant is the owner of a gristmill and has been for many years, to which five different roads lead; that these roads have been travelled for many years, three of them for more than twenty years, and how much longer did not appear, and that these three had been used by the public for that time and more, but it did not appear that any of the roads bad been laid off by order of the County Court or that any overseer lawfully appointed had ever worked on them. In order to £ass over said cartway it would be necessary for passengers to pass by the end of two of said roads that had been used by tbe public constantly, for more than twenty years.

The Judge ordered the cartway to he discontinued and gave judgment against the defendant for the costs,

Merrimon, for the plaintiff.

No counsel for the defendant in this court.

Battle, J.

This was a petition to discontinue a cartway which bad been laid off according to the provisions of the Reviséd Code, ch. 101, sec. 87; The proceeding was instituted under the 88th section of the same act which declares that u cartways laid off according to the preceeding section may be changed or discontinued upon application of any person concerned under the same rules of proceeding as they may be first laid off, and upon such terms as to the court may seem equitable and just.”

We have decided at the present terra in the case of Burgwyn vs. Lockhart that where the applicant for a caraway over the land of another has already one or more convenient rights of way to the public road or other public place, to which he seeks access, so that it will not be “ necessary reasonable and just,” that he shall have the cartway laid off, his application shall be rejected: though such rights of way over the lands of others, bo not cartways. That decision disposes of the present case. There are several other-ways leading to the defendant’s mill which were constantly used by him and the public, and it .was not “ necessary reasonable and just,” therefore, that the plaintiff’s laud should be burdened by the cartway. The order of tbs court to discontinue it was proper and must be affirmed.