Plimmons v. . Frisby

60 N.C. 200

• Court: Supreme Court of North Carolina
• Decided: June 5, 1864
• Status: Published

Opinion

This was a petition to discontinue a cartway which had been line off according to the provisions of Rev. Code, ch. 101, sec. 37. The proceeding was instituted under section 38 of the same act which declares that "cartways laid off according to the preceding section may be changed or discontinued upon application of any person concerned, under the same rules of proceeding as they may first be laid off, and upon such terms as to the court may seem equitable and just."

We have decided at the present term in Burgwyn v. Lockhart, post, 264, that where the applicant for a cartway over the land of another has already one or more convenient rights of way to the public road or other public place to which he seeks access, so that it will not be "necessary, reasonable, and just" that he shall have the cartway laid off, his application shall be rejected, though such rights of way over the lands of others be not cartways. That decision disposes of the present case. There are several other ways leading to the defendant's mill which were constantly used by him and the public, and it was not "necessary, reasonable, and just," therefore, that the plaintiff's land should be (202) burdened with the cartway. The order of the court to discontinue it was proper, and must be

Affirmed.