King v. . Blackwell

Merrimon, J., (after stating the facts). The statute (The Code, §2014,) invests the board of county commissioners in each county of the State, with full power and authority “to appoint and settle ferries; to order the laying out of public roads when necessary; to appoint where bridges shall be made; to discontinue such roads and ferries as shall be found useless, and to alter roads so as to make them more useful,” within their county; §2038 prescribes that application shall be made “ upon petition in writing ” to have a public ferry or road laid out and established, and §2039 prescribes how persons dissatisfied with such ■ application, the orders, and the action of the county commissioners in respect thereto, may appeal therefrom to the Superior Court, which Court, in term time, “ shall hear the whole matter anew,” and the parties to the proceeding, which is summary in its nature, “shall be entitled to have every issue of fact joined in said proceeding tried in the Superior Court in term time by jury;” and an appeal lies from that Court to this, as in other cases. The roads thus allowed to be established, are public roads, such as are necessary to serve and promote the public advantage and convenience. Hence, a proper and principal inquiry in every application to have a public road laid out is, “is it necessary for the public good and convenience?” The purpose is not to serve the particular convenience of private individuals, except as they may realize such advantage incidentally, as constituent parts of the public. If their circumstances are such as to require a private way, the statute *326 (The Code, §2056,) provides how such persons may obtain such way across the lands of others. The inquiry in the present case, was as to the public want. We therefore think, that the Court not improperly added to the issue proposed by the appellants, the words “for the public.” These words presented the inquiry to the jury in a broader and more distinct view, while it was not an unjust or improper one. The issue as amended by the Court, made prominent the public, as distinguished from mere private advantage. The appellants do not complain of the instructions given the jury by the Court, but they insist that it ought to have gone further, and told them, “that the cross-roads were private ways.” They did not ask for such instruction, as they might have done if they desired it. In any view of it, it would have been incidental, and had reference to evidence not of much importance. It was not an essential part of the instructions the Court gave and ought to have given the jury. It is well settled, that the mere omission of the Court to give instruction in a particular respect that might have been given, if called to its attention in apt time by the party complaining, is not ground for a new trrial. Brown v. Calloway, 90 N. C., 118; Terry v. Railroad, 91 N. C., 236; Fry v. Currie, Ibid., 436; Davis v. Council, 92 N. C., 725; Branton v. O’Briant, 93 N. C., 99. But if the rule of practice were otherwise, we should think there was no error, as contended, because, if the ways referred to were private ways, the evidence in respect to them was competent to be heard by the county commissioners, and by the jury, in determining the question as to the necessity for the proposed public road. If there were public roads in the neighborhood of that proposed, as the evidence tended to provo, there might be no necessity for it, especially while the private ways mentioned were kept open and allowed to be used by the public, as they have been for a long while. If the private ways serve the public purpose, *327 or to aid it, as they had done, it seems, for a long while, this might be a sufficient reason why the county commissioners should not order the laying out of a new road, and why the jury should find there was no necessity for such a one. ' It was competent to show that there were such private ways — that they were open and used by the public, or that, though they had been open and used, the owners of them, or of the soil over which they passed, had closed them. So that the appellants were not prejudiced, as they contended. The exception in respect to the verdict was properly abandoned. It cannot be sustained. There is no error, and the judgment must be affirmed. No error. Affirmed.