#### Harris and others v. Coltraine.

j. From Randolph.

When á party appeals from the decision of the County Court laying off a road over his lands, and the Superior Court lays it off as the appellant wishes, the appellant shall not pay the costs of the petition.

This was an appeal from the decision of Norwood, judge, giving costs against the defendant under the following circumstances.

Harris and others were petitioners to the County Court of Randolph, to grant to them the privilege of making and keeping up a road as a public highway in the county; a jury was directed to view and lay off the road as prayed for, and assess the damages which might accrue to the owners of land over which it might pass, and to report. This jury laid off the road so as to intersect diagonally the defendant’s plantation, and assessed his damages to 12 dollars 50 cents. When the jury reported, the defendant opposed unsuccessfully the con urination of the proceedings of the jury, and appealed to the Superior Court. In the Superior Court, the report wás set áside,, and a new jury ordered to view and lay off the road, who. followed the road as laid off by the first jury, and assesséd defendant’s damage to S 20. Upon the return of this jury it appeared satisfactorily to the Court that unnecessary injury was done'to the defendant’s Enclosures by the road as laid out, and that it might be made between the points desired without an increase in distance of more than two rods, by touching defendant’s lines without passing through the enclosures; whereupon a third jury was ordered to lay out the road with as little prejudice as possible to enclosures.

The report of this jury was not opposed by the defendant, and was confirmed, and the Court gave judgment that the petitioners should recover their costs.

Haywood, for the appellant.

*313Hall, Judge,

delivered the opinion of the Court. — By the act of 1813, JV*ew Beu. ch. 862, an appeal is given to any person who may be dissatisfied with the judgment of the County Court, on a petition filed for the purpose of having a new road laid out, and the appeal is subject to the same rules and regulations as appeals are subject to in other cases from the County to the Superior Courts.

In this case, the judgment of the Superior Court was very different from that given by the County Court. The road established merely touched the line of the defendant, instead of going through his land; and to have the road laid out in this way was the object of the appeal by the defendant. And in that object he has succeeded. Therefore, I think, he ought not to he subjected to costs, but the judgment of the Superior Court ought to he reversed, and the costs paid by the petitioners.