Warlick v. . Lowman

Clark, J. — after stating facts as above: All the exceptions taken on the trial are to the admissibility of evidence offered to show that the cartway prayed for would be shorter than that suggested b3r the defendant over the Gross land. Section 2056 of The Code is in derogation of the rights of landowners, and a petitioner is not entitled to have a cartway laid out over another’s land simply because it would give him a shorter and better outlet to the public road. If he already have a private way, or, by parol license, an unobstructed way, across the land of another, the petition should be denied, and evidence tending to show that the desired cartway would' be shorter than the outlet in use should be excluded as immaterial. Warlich v. Lowman, 103 N. C., 122, and cases there cited. It is alleged in this case that'the plaintiff had no other outlet of any kind whatever. This, it is true, was denied by the defendant. The jury, however, might, and did, find with the plaintiff that the road asked for was a “necessity,” by reason of there being no other, and, in that event, evi *407 dence as to the length and nature of the route, if laid out over defendant’s land, as compared with one laid out in a different direction, was competent as tending to show that the demand was “reasonable and just.” The Court instructed the jury as to the bearing of the evidence objected to, and we do not think they could have been misled. The defendant excepted, also, to the form of the judgment, but did not specify wherein there was error. This has always been held to be too general. It is proper, however, to say that, if the exception is, as we suppose, to retaining the cause in the Superior Court instead of issuing a 'procedendo to the lower Court, this was formerly the settled practice. Shoffner v. Fogleman, Bush., 280; Caldwell v. Parks, Phil., 54. While our present statute (section 2056) is, in some respects, dissimilar, still, on appeal, the trial in the Superior Court is de novo, and the issues of fact are to be found by a jury. We see no good reasons requiring the proceedings to be remanded to the County Commissioners that they may, in turn, remand to the Township' Board of Supervisors. A writ to the Sheriff, commanding him to summon a jury, lay off the cartway and assess the damages, can issue as well from the Superior Court as from the Township Board of Supervisors. This will avoid another possible appeal from the latter upon a confirmation of the report. It is the course consonant with former precedents, and has the advantage of being the simplest, speediest and most economical mode. It cannot, in any way, prejudice the rights of either party. Affirmed.