#### DOW TRIPLETT and Wife, VELMA TRIPLETT, v. ROBERT B. LAIL, W. H. BARKER, R. F. BURRIS, and GUILFORD REALTY & INSURANCE COMPANY.

(Filed 26 March, 1947.)

Highways § 15: Courts § 4c—

In a proceeding to establish a cartway or way of necessity from lands of petitioners to a State Highway, G. S., 136-68, G. S., 136-69, an order of the clerk adjudging that petitioners are entitled to the relief and appointing a jury *of view to “lay off” the*cartway, 'is a final determination of the right to the easement, leaving only the mechanics of execution to the jury of view, and therefore an appeal to the Superior Court by respondents whose lands are affected is not premature, and judgment of the Superior Court dismissing the appeal and remanding the cause to the clerk, is erroneous.

Appeal by defendant Guilford Realty & Insurance Company from *Hamilton, Special Judge,*at September-October Term, 1946, of Caldwell.

Special proceeding under G. S., 136-68 and 136-69 to establish a cart-way or way of necessity from the lands of the petitioners to State Highway No. 321.

Originally the proceeding was against R. B. Lail only. W. H. Barker accepted service of summons and voluntarily became a party defendant. R. E. Burris, apparently without any notice, service' of summons, or voluntary action, was so treated. Thereupon the petitioners filed an amendment to the petition alleging that the Guilford Realty *&*Insurance Company (which had acquired the land of defendant Burris) is a necessary party defendant. It was so ordered.

The clerk, then, upon a rehearing, adjudged that “petitioners are entitled to and shall have for their use, a cartway or roadway over the lands of the defendants to reach' the highway; . . .” and appointed a jury of view to “lay off” said cartway. Defendant Guilford Realty & Insurance Company excepted and appealed to the Superior Court at term.

When the cause came on to be heard in the court below the petitioners moved the court to dismiss the appeal for that it was premature. The motion was allowed by order dismissing the appeal and remanding the cause to the clerk. The defendant Guilford Realty & Insurance Company excepted and appealed to this Court.

*Hal B. Adams for plaintiff, appellees.*

*J. Allen Austin and J. T. Pritchett for defendant Guilford Realty & Insurance Company, appellant.*

*275Barnhill, 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.