Gorham v. Southern Railway Co.

AlleN, J. The exceptions from 2 to 6, inclusive, present the same question, and are directed to evidence introduced by the petitioners to prove that they intended to erect a dwelling on the land east of the railroad; where it was to be located; that the timber they would cut for the dwelling was on the west side of the railroad, and its location; and the distance between the timber and the dwelling, by the crossing in use at the time of filing the petition, and by the proposed new cartway. In our opinion, this evidence was competent, for the purpose of showing the jurors the exact situation of the plaintiffs and giving them a true concept of the land and the uses of which it was susceptible; and these were circumstances proper to be considered in the determination of the issue as to whether the proposed cartway was necessary, reasonable, and just. If this is not true, the defendant has .not been prejudiced by the evidence, because it appears that the witness had, without objection, testified to the same facts, in substance. The order of the board of supervisors was properly admitted in evidence. It was necessary for the jury to understand where the proposed cartway was to be located, and as each of the supervisors testified as a witness, it was also competent in corroboration. Besides this, the statement in the order that the cartway is necessary, reasonable, and just, to which objection is principally urged, would be implied from the making of the order, and the jury already knew that the order had been made. We do not see the relevancy of the question asked a witness for the defendant for the purpose of showing that the petitioners had requested that another crossing be located, and that the defendant made no objection, as the answer to the question, if in the affirmative, would not aid the jury in determining the issue submitted, and it cannot be claimed that such a request would be a bar to this proceeding; and, further, it does not appear from the record what would have been the answer of the witness. Stout v. Turnpike Co., 157 N. C., 366. *511 The first, second, and third requests for special instructions present the. question whether the existence of a private way, the use of which is permissive, will prevent the location of a cart-way by petition, under the provisions of the Revisal, and the defendant relies on Lea v. Johnson, 31 N. C., 19, which has been followed in several cases. The ease of Lea v. Johnson was decided in 1848, when the Revised Statutes were in force, which provided, in section 33, ch. 104: “If any person shall be settled upon or cultivating any land to which there is no public road leading and no way to get to and from the same, other than by crossing other persons’ lands, and it shall not be necessary to establish a public road, it shall be lawful for such person to file his petition in the county court, praying for a cartway or wagon way, to be kept open across another person’s land, leading to some public road, ferry, bridge, or public landing.” And by reference to the Re-visal of 1905, sec. 2686, it will be observed that the important and material words in the Revised Statutes, “and no way to get to and from the same,” are omitted in the statutes now in force. Justice Hoke adverted to the tendency of the early decisions, to construe the statute strictly, in Ford v. Manning, 152 N. C., 151, and said: “And while many of the decisions are to the effect that'these statutes, being in derogation of common right, should be strictly construed, and the petitioner required to bring himself clearly within the meaning of their terms, there is doubt if some of the cases have not gone too far in applying this principle of construction, and if it is not a more wholesome rule to construe the statute in a way to promote its principal and beneficent purpose.” Following this view, we are of opinion that the petitioners have brought themselves within the language and spirit of the statute by showing that there is no public road leading to their lands, and by offering evidence that the proposed cartway is necessary, reasonable, and just, and that the existence of the permissive way is not fatal to their demand. Nor do we think the defendant was entitled to have the fourth and fifth prayers for instruction given. It has been said frequently that a railroad track is notice of danger, and the traveler is required to look and listen before *512 crossing it, because it is understood that there is danger, and if we were to hold that a cartway could not be granted- across the right of way and track of a railroad because dangerous, we would, in effect, forbid it in any case. His Honor properly charged the jury that they must consider the existence of the permissive way, and the danger of the crossing as it was proposed to locate it, in determining whether it was necessary, reasonable, and just, which we think was fair to the defendant. Upon a review of the whole record, we find No error.