Dailey v. . Bay

Baenhill, J. The court below did not purport to act upon the merits of plaintiff’s appeal from the clerk. Acting under the apprehension that an appeal would not lie from the clerk’s order until the clerk had first followed the procedure outlined by the statute for the laying off of the cartway and the assessment of damages, the judge granted plaintiff’s motion to remand. In this there was error. The judgment of the clerk is final and, until reversed or modified, is determinative of the rights of the parties'in this controversy. An appeal therefrom is not premature. This court has heretofore determined this question. In Warlick v. Lowman, 101 N. C., 548, 8 S. E., 120, there was an adjudication by the clerk that it was necessary, reasonable and just that the petitioner should have a private way to a public road specified. The defendant appealed before a jury of view was appointed to lay out the cartway and assess the damages. Upon motion of the plaintiff the appeal was dismissed on the ground that it was prematurely taken. This was held for error. Cook v. Vickers, 141 N. C., 101, 144 S. E., 312, is to like effect. . Surely the converse is true. If, as the clerk adjudged, the plaintiff is not entitled to a cartway as prayed in her *654 petition it would be a fruitless waste of time and expense to have a jury of view appointed to lay off and establish a cartway and assess the damages accruing to the defendants by reason thereof. In fact, by the express terms of the statute, 0. S., 3836, as amended by ch. 448, Public Laws 1931, the clerk is not authorized to appoint a jury of view until it is first adjudged that it is necessary, reasonable and just that the petitioner shall have a private way to a public road, as prayed in the petition. 0. S., 3835 provides: “From any final order or judgment in said special proceeding, any interested party may appeal to the Superior Court for trial de novo and the procedure established under Chapter thirty-three, entitled 'Eminent Domain,’ shall be followed in the conduct of said special proceeding in so far as the same is applicable and in harmony with the provisions of this section.” Whether this language relates to the procedure after appeal from the clerk, as it seems to indicate, we need not now decide. There is a necessary distinction drawn as to the right of appeal in condemnation proceedings and in proceedings for the establishment of a cartway. Ordinarily the municipal or public service corporation seeking a right-of-way by condemnation is entitled to the easement as a matter of right. The establishment of the bounds of the easement and the assessment of damages are the matters primarily involved. No appeal lies until the easement is laid out and the damages assessed. In proceeding under C. S., 3836, as amended, the right to the cartway is primarily at issue. An adjudication as to that affects a substantial right of the parties and is deemed to be a final judgment from which either party may appeal. Due to this distinction the cases cited by petitioner are not decisive of the question here presented. Upon the docketing of the appeal upon the civil issue docket the Superior Court acquired full jurisdiction thereof and it is its duty to determine the issues of fact and questions of Taw involved. If it is finally adjudged that plaintiff is entitled to a cartway across the lands of the defendants as prayed, then, and only then, may the judge in his discretion remand the cause to the clerk for the procedural action necessary under the statute for the execution of the judgment rendered. 0. S., 637. The cause is remanded to the end that it may be reinstated upon the civil issue docket of the court below for further proceedings. Error and remanded.