Triplett v. . Lail

*275 Barnhill, J. Tbe ambiguities in tbe record are such it is impossible for us to form a clear impression of tbe relative rights of tbe parties. Apparently tbe property of petitioners is cut off from tbe public road by three separate, abutting tracts of land. If so, tbe order of tbe clerk left it to tbe jury of view to fix tbe location of tbe cartway, including its termini and tbe tract to be burdened thereby. Burden v. Harman, 52 N. C., 354. In any event, tbe order authorizes its location on tbe property of appellant. Appeal therefrom presents tbe one question posed for decision: Was tbe appeal from tbe order of tbe clerk adjudging tbe right of petitioners to have a cartway over and across tbe land of appellant premature? Our decisions answer in tbe negative. Burden v. Harman, supra; Warlick v. Lowman, 101 N. C., 548; McDowell v. Insane Asylum, 101 N. C., 656; Cook v. Vickers, 141 N. C., 101, 144 N. C., 312; Dailey v. Bay, 215 N. C., 652, 3 S. E. (2d), 14. Tbe order of tbe clerk, if effective for any purpose, fixes tbe right of petitioners to a way of ingress and egress. Tbe appointment of a jury of view, to locate, lay off, and mark tbe bounds of tbe easement thus established, is tbe mechanics, in tbe nature of an execution, provided for tbe enforcement of tbe order. It is tbe province of tbe clerk, in tbe first instance, to adjudge tbe right. It is tbe duty of tbe jury of view to execute it. As said in Warlick v. Lowman, supra: “That order was final in its nature, and as tbe defendant bad tbe right to appeal from it, it would be idle to execute it before the appeal should be taken.” “Why complete tbe matters and things to be done merely incident to and in execution of tbe principal order before tbe appeal should lie?” McDowell v. Insane Asylum, supra. “Tbe judgment of tbe clerk is final and, until reversed or modified, is determinative of tbe rights of tbe parties in this controversy. An appeal therefrom is not premature.” Dailey v. Bay, supra. Tbe court “should have beard tbe whole matter brought before it by appeal upon tbe merits.” Warlick v. Lowman, supra. Tbe order of remand must be vacated and tbe cause reinstated on tbe civil issue docket for trial in tbe Superior Court in tbe manner provided by law. Reversed.