#### JAMES AND SUSAN LEA vs. JOHN *JOHNSTON.*

The courts have no authority to have the lands of the citizens taken for a cart way, without the consent of the owner, except in the instance provided for hy the Statute, “If any person shall be settled upon or cultivating any land, to which there is no public road leading or no way to get to or from the same, other than by crossing other persona’ land.”

Therefore where there was a public road to which access might be had, though not so convenient for the petitioner, as the cart-way he prays for, the Court cannot grant the petition.

Appeal from the Superior Court of Law of Caswell County, at Spring Term, 184S, his Honor Judge Peabson presiding.

This was a case, originally commenced in the County Court by a petition for a cart-way, and thence carried by appeal to the Superior Court of Caswell County. The petition set forth that the petitioner. James, was the owner, and was cultivating a valuable tract of land, on which was situated a public mill on Cobb Creek, which runs through the said land; that the said land was situated about a mile and one half to the nearest point of it from Leasburg, and the mill about two miles ; that he himself resided in Leasburg and had no wagon nor cart-way to his said plantation or mill, without going the Rox-borough road into Person County about a half mile, and then along the Goshen Road in Person County about three miles, and then a cross road to the mill about a mile, making in all four and one half miles; and to the main part of his plantation was still farther and more inconvenient than to the mill.

And the petition further shewed that for a great many years there had been a cart and wagon way from Leas-burg to his plantation and then turning from the Milton Road about half a mile from Leasburg, running through *16the lands of the petitioner Sussan, and the defendant John, and the petitioner James, to the mill, which said way has been stopped up by the defendant John, and he now refuses to allow any passage over that way.

The petition further stated that the said way would not only be a great convenience to the petitioner James, but also the neighborhood generally; that the citizens of Leasburg had no other way to the said mill than that described, and the neighbors on the Court house side of Leasburg were thrown still further out of the way.

The petition further set forth that the petitioner, James, had no other way of going to his said mill and land, without going over the lands of others, than as above described, and it was not necessary to establish a public road, and the petitioners prayed an order to lay off a cart-way from the Milton Road, &c.

The County Court dismissed the petition on the motion of the defendant, and the plaintiffs appealed to the Superior Court. The appeal coming on to be heard before the Judge of the said Court, his Honor ordered that judgment be entered against the defendant in the said petition for costs, and that the prayer of the petitioner be granted and that a writ of *procedendo*issue to the County Court accordingly. From which judgment the defendant appealed to the Supreme Court.

*E. G. Reade,*for the plaintiffs.

The petition is filed under Chap. 104, Sec. 33. Rev. St. which provides that “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 land,” &c , he shall have a cart-way.

The object of the Statute is to enable land owners to use and enjoy their property to the best advantage ; too *remedy*inconveniences. It is then a *remedial*Statute and ought to be *liberally*construed.

*17If to this it is answered that the Statute is *restrictive*of the rights of the defendant, and ought therefore to be *strictly*construed : it is replied, that the defendant is not *injured.*He is compensated in damages for all injury.

The defendant demurs to the petition and assigns two grounds.

1st. That it appears from the petition that there is a *public road leading,*&c. The showing in the petition upon which this objection is founded is, that the petitioners live in Leasburg, and own a plantation and mill about two miles off, and have no way to get to the same other than to go the public road leading to Roxborough, into Person County some half mile, and then the Goshen road some three miles, and then a cross road a mile to the mill.

It is admitted that these are *public roads.*The question is are they *a public road leading,*&c. *?*

If a *strict*construction is insisted upon by the defendant, it will be difficult to make *three*roads *a*road.

If a *liberal*construction is allowed, it cannot be said that these roads are a road, *leading*from Leasburg to the mill. If a stronger were to enquire whether there is *a rail road leading*from Raleigh to Wilmington, and he were answered affirmatively, he would doubtless be deceived; and yet there is a rail road which begins at Raleigh and unites with a second rail road, which intersects with a third, which ends at Wilmington. But with no propriety can there be said to be *a rail road leading*from Raleigh to Wilmington.

*A road leading*from one place to another is a *direct*way — direct enough for all ordinary purposes. And it would be nothing but a whim, too idle to be gratified, to desire any other way than *a public road.*But the same cannot be said of *several roads,*which by a circuit of *18many times the distance, end at or pass by the point to ■which a *direct*way is desired.

2nd. That it appears from the petition that the petitioners have *a*way, &c., viz: the roads aforesaid.

To this it is answered, that it must be a *direct*or at least *convenient*way. And it is insisted by the plaintiffs that when there is no public road leading, &c:, (as it is submitted there is not in this ease,) then the *other way*spoken of in the statute, is a way across the petitioners’ *own land.*The words are, “and no way, &c. other than by crossing *other persons’*lands,’’ which must mean no way over *his own*land. So that it is submitted by the plaintiffs,

1st. That it does not appear from the petition that there is a public road *leading,*&c.

2nd. That it does not appear from the petition that there is *a way,*&c. other than by crossing other persons’ land, (viz :) a way over petitioners’ *own land.*

*Kerr*and *Norwood,*for the defendant.

Pearson, J.

When this case was heard on the circuit, I was so entirely satisfied that the cart-way petitioned for would be a matter of great convenience to the petitioners, and other citizens of Leasburg and its vicinity, by giving them a road to mill not exceeding two miles in distance, instead of a round-about road, over bad' ground, exceeding four miles, that my attention was directed from a particular examination of the Statute, and 1 contented myself with a general impression, that the meaning of the Act was to establish a third sort of road, called a cart-way, intermediate between a public road, which was to be kept up at the public expense and used by all the citizens, and a mere private way, which, when acquired by grant or prescription, was to be used by the •grantee and those having his estate.

After the argument in this Court, and by the assistance *19of the great learning and long experience of the Chief-Justice and my brother Nash, I have satisfied myself that I was wrong. “Hard cases are the quick-sands of the lawin other words, a Judge sometimes looks so much at the apparent hardship of the case, as to overlook the law.

However convenient it may be, in many instances, to have a cart-way, when it may not be necessary to establish a public road, we are unable, by the most liberal construction of the Act, to find any authority given to the Courts to have the land of the citizens taken without the consent of the owner for the purpose of a cart-way, except in the instance expressly provided for, “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.” In this case, there is a *public road leading to the mill and land*of the petitioners; it, therefore, does not come within the words of the Act, and if we depart from the words, there is no stopping short of an unlimited discretion by which the land of one man may be taken for the use of another. To authorise this, there should be a plain expression of the Legislative will. In the absence of such provision, individuals must be left to depend upon the courtesy of good neighborship or the acqusition, by grant, of the right of private ways.

Let the decision of the Court below be reversed and the petition be dismissed with cost.

Per Curiam. Decreed accordingly.