#### W. C. GORHAM and W. B. TAYLOR v. SOUTHERN RAILWAY COMPANY.

(Filed 10 April, 1912.)

1. Condemnation — Easements—Cartways—Situation of Lands — Proposed Buildings — Evidence.

In proceedings to lay out a cartway over the lands of another whereon there is a right of way of a railroad company, it is competent for the petitioner to show at the trial the exact situation of his lands, the uses to which they were susceptible, and hence, in this case, evidence was properly admitted which tended to show that the petitioner intended to erect a dwelling on his lands east of the railroad, from whence there was no proper outlet; its location; that thé timber to be used for the purpose was to be cut from the west side of the railroad, and its location, and the distance between the timber and the proposed dwelling by the crossing in use at the time of filing the petition, and by the proposed 'new cartway.

2. Objections .and Exceptions — When Taken — Practice.

The evidence in this case objected to Held to have been without prejudice, as it had theretofore been testified 'to, in substance, without objection.

3. Condemnation — Easements — Cartways—Board of Supervisors— Order — Evidence—Corroboration—Harmless Error.

At the trial in the Superior Court, on appeal from an order of the .board of supervisors allowing a cartway to be established over the lands of another, the order of the board is properly admitted in evidence to show the jury the location of the cartway, and in corroboration of the supervisors who have testified; and *505 Held, further, the fact that the order had been made would necessarily imply that the cartway located was. necessary, just, and reasonable, and its introduction would, in any event, be without prejudice to the respondent.

4. Condemnation — Easements — Cartways—Former Requests — Different Locations — Evidence.

Evidence that a petitioner for a cartway over the lands of another had theretofore requested a cartway at a different location to the one laid off, which was not objected to by the respondent, is incompetent, as it.would not be an aid to the jury in determining the matter and would not be a bar to the proceedings.

5. Objections and Exceptions — Questions and Answers — Materiality —Appeal and Error.

An objection to the exclusion of a question asked a witness must show that the answer would have been material and competent, to constitute reversible error on appeal.

6. Condemnation — Easements — Cartways—Permissive Ways — Evidence — .Interpretation of Statutes.

Under the language and spirit of Revisal, sec. 2686, a petitioner for a cartway over the lands of another becomes entitled thereto by showing that there is no public road leading to his lands; that the proposed cartway is necessary, reasonable, and just; and the existence of a permissive way is evidence for the consideration of the jury, but not fatal to his demand. Ford v. Manning, 152 N. C., 151, cited and approved.

7. Condemnation' — Easements — Cartways — Railroad Crossings— Danger — Questions for Jury.

The mere fact of danger of crossing a railroad right of way will 'not bar the rights of a petitioner for a cartway across one, the danger of crossing at the proposed location being for the consideration of the jury.

Appeal from 0..H. Allen, J., at November Term, 1911, of GRANVILLE.

The petitioners filed their petition in November, 1910, before the Board of Supervisors of Salem Township, Granville County, asking that a cartway be established from the land on which they lived, across the track and right of way of the defendant, to a public road. Notice was issued to the defendant, and on 28 November, 1910, said supervisors made the following order:

*506“This cause coming on to be beard before tbe undersigned Road Supervisors of Salem Township, Granville County, upon tbe petition of W. R. Taylor and W. C. Gorbam, after due notice to tbe Southern Railway Company and Mrs. Wright, both parties being represented by counsel, after bearing tbe statements and contentions of both petitioners and tbe Southern Railway Company, we went upon tbe lands desired as cartway and made personal inspection of tbe same, and we find that it would be necessary, reasonable, and just that tbe petitioners be allowed a cartway from tbe dwelling-house of said W. 0. Gorbam and W. R. Taylor over tbe lands of said W. R. Taylor, Mrs. E. L. Wright, and tbe Southern Railway right of way and railroad track to tbe public road leading from Oxford to Stovall, and that said cartway be laid off and kept open as laid off by said Gorbam, except that it should cross tbe railroad on tbe south side of tbe second telegraph pole from tbe crossing described in tbe plat hereto attached. Said Gorbam is to cut two feet off face side of cut in railroad up to level between tbe telegraph pole at crossing asked for and tbe one hereby established, if tbe railroad agrees to it.

a“And it is ordered that said cartway be laid off and kept open across said lands of tbe parties in accordance with tbe laws of North Carolina.

“And for want of a constable in said township, tbe Sheriff of Granville County is hereby ordered to summon a jury of five freeholders to view tbe premises and lay off tbe cartway herein-before granted to width of fourteen feet, and assess any damages tbe owner of said land may sustain thereby, and tbe cartway herein allowed shall be marked and staked out in accordance with tbe findings above set out. And said cartway shall be kept open according to law.”

Tbe defendant appealed from tbe order to tbe Board of Commissioners of Granville County, which affirmed tbe order of tbe supervisors, and tbe defendant then appealed to tbe Superior Court, where tbe following verdict was returned "by tbe jury:

1. Are tbe plaintiffs settled upon tbe land to which no public road is leading? Answer: Yes.

*5072. Is tbe proposed cartway necessary, reasonable, and just? Answer: Yes.

On tbe trial it appeared tbat tbe plaintiffs were tbe owners of about 300 acres of land in Salem Township, and tbat tbe track and right of way of tbe defendant ran through this tract of land, leaving about 280 acres, on which tbe home of tbe plaintiffs was situated, on tbe east side, and about 20 acres on the. west side.

It also appeared tbat there was a public road on tbe land on tbe west of tbe railroad, running parallel with it, and tbe cart-way proposed was to run from tbe land on tbe east side of tbe railroad to said public road.

It further appeared tbat at tbe time of filing tbe petition a grade crossing was maintained across said railroad and right of way over which tbe plaintiffs could pass on their own land, except possibly a short distance on tbe Booth land, to said public road, but tbat this was permissive and not of right.

One of tbe petitioners testified as follows: Tbat Lewis station was not more than one mile from tbe dwelling of tbe plaintiff witness, but in order to reach it be bad to go over 800- yards toward Oxford, and then 840 yards back along tbe public road until be reached a point opposite bis bouse, on tbe railroad, which was 345 yards from bis dwelling, where be asked tbat tbe cartway cross tbe railroad; tbat be wished to haul bis heavy freight, such as fertilizers, farm machinery, lumber, and other things, from Lewis station; tbat tbe crossing at tbat place was necessary to enable him to reach tbe cultivated land west of tbe railroad more conveniently; tbat be was preparing to build a dwelling near tbe tenant-house in which be was living; tbat a sawmill bad been established just east of tbat place, and a very considerable portion of the timber be expected to use was on the west side of tbe railroad and tbe public road, which be would have to haul across tbe proposed crossing; tbat there was a grade crossing 800 yards southwest of bis present dwelling, which was in use when be went to live there; tbat between said crossing and the'public road there was a narrow point of tbe Booth land, and plaintiff’s land comes up to tbe crossing on tbe east side, and tbe roadway thereto on east is on-plaintiff’s land.

*508Witness was asked where be proposed to erect tbe new dwelling of wbicb be bad spoken.

(Defendant objected; objection overruled.)

Witness then testified tbat be intended to erect tbe dwelling between present bouse and tbe railroad.

Witness was asked where tbe timber was on tbe west side, of wbicb be bad spoken, which be intended to cut and haul for bis new dwelling.

(Defendant objected; overruled; exception.)

Witness stated tbat it was on tbe northwest part of tbe land, and it would be much shorter to haul it by the proposed crossing than to go 840 yards to the present crossing and then more than 800 yards to the new mill.

(Defendant objected; overruled; exception.)

Witness testified that there were signs of an -bid road along the proposed cartway and crossing of the railroad.

On cross-examination witness testified tbat bis present house fronted south toward the present crossing, 800 yards distant, in sight of the house; tbat said crossing was a grade crossing used by him and others who'lived east of his house without objection from the defendant; that his house was on about the highest part of the. farm. Defendant then asked witness if a grade crossing could not be obtained at almost any point along said railroad for a distance of nearly 400 yards north of the present crossing. Witness replied that a grade crossing could be obtained at several places, but that it would require him to go a much farther distance to reach his dwelling on account of a very great depression, or ravine, between the east side of the railroad, which drained out toward tbe north (but being easily crossed át a. bridge on tbe proposed, cartway). Witness was asked if there was not another way to reach lewis station, by going out northeast back of bis dwelling. Witness replied there was an old road on his land and tbat of another person by which he could reach Lewis station, but it was very rough and somewhat longer than the proposed cartway.

The order of the supervisors was introduced, and the defendant excepted.

*509Eacb of tbe supervisors was examined as a witness, and testified that he went on the land and examined it; he described the conditions existing and stated his reasons for making the order.

The cartway was not established by the supervisors at the place requested by the petitioners, but the defendant offered evidence that the proposed location was dangerous.

One of the witnesses for the defendant was asked if the petitioners had asked for a crossing at any other place than the one mentioned in the petition, and if any. objection had been made on the part of the defendant to granting a crossing at any point south of the said cut.

(Objection by petitioner; objection sustained; defendant excepted.)

The defendant requested that the jury be instructed as follows:

1. If you find that plaintiff owns the land on both sides of defendant company’s railbed and has been using a crossing from east to west to and from a public road which runs through the land on the western side of the defendant company’s right of way, and that plaintiffs .still have the right to use the said crossing on their land over said roadbed of defendant, then I charge you that the plaintiffs would not be entitled to the cartway asked for.

2. If the petitioners own the land on both sides of the railroad, and now have an unobstructed way to get from the east side to the road on the west side over their own lands, or the lands of another, then they would not be entitled to the cartway asked for.

3. If you find that petitioners have a way to the station and public road at Lewis’, other than the one on the east side, then they would not be entitled to the cartway asked for.

4. If the crossing asked for is at such a place as to make it dangerous for passengers or to the passers over said track, the same would not be reasonable, necessary, and just.

5. If petitioners can have a grade crossing at another place along said track at a place where it would be safe for passengers and travelers wishing to cross the same, the same would not be reasonable, necessary, and just.

*510Judgment was rendered in accordance with tbe verdict, and the defendant appealed.

Graham & Devin for 'plaintiff.

Hieles & Stem for defendant.

AlleN, J.

The exceptions from 2 to 6, inclusive, present the same question, and are directed to evidence introduced by the petitioners to prove that they intended to erect a dwelling on the land east of the railroad; where it was to be located; that the timber they would cut for the dwelling was on the west side of the railroad, and its location; and the distance between the timber and the dwelling, by the crossing in use at the time of filing the petition, and by the proposed new cartway.

In our opinion, this evidence was competent, for the purpose of showing the jurors the exact situation of the plaintiffs and giving them a true concept of the land and the uses of which it was susceptible; and these were circumstances proper to be considered in the determination of the issue as to whether the proposed cartway was necessary, reasonable, and just.

If this is not true, the defendant has .not been prejudiced by the evidence, because it appears that the witness had, without objection, testified to the same facts, in substance.

The order of the board of supervisors was properly admitted in evidence. It was necessary for the jury to understand where the proposed cartway was to be located, and as each of the supervisors testified as a witness, it was also competent in corroboration. Besides this, the statement in the order that the cartway is necessary, reasonable, and just, to which objection is principally urged, would be implied from the making of the order, and the jury already knew that the order had been made.

We do not see the relevancy of the question asked a witness for the defendant for the purpose of showing that the petitioners had requested that another crossing be located, and that the defendant made no objection, as the answer to the question, if in the affirmative, would not aid the jury in determining the issue submitted, and it cannot be claimed that such a request would be a bar to this proceeding; and, further, it does not appear from the record what would have been the answer of the witness. Stout v. Turnpike Co., 157 N. C., 366.

*511The first, second, and third requests for special instructions present the. question whether the existence of a private way, the use of which is permissive, will prevent the location of a cart-way by petition, under the provisions of the Revisal, and the defendant relies on Lea v. Johnson, 31 N. C., 19, which has been followed in several cases.

The ease of Lea v. Johnson was decided in 1848, when the Revised Statutes were in force, which provided, in section 33, ch. 104: “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, and it shall not be necessary to establish a public road, it shall be lawful for such person to file his petition in the county court, praying for a cartway or wagon way, to be kept open across another person’s land, leading to some public road, ferry, bridge, or public landing.” And by reference to the Re-visal of 1905, sec. 2686, it will be observed that the important and material words in the Revised Statutes, “and no way to get to and from the same,” are omitted in the statutes now in force.

Justice Hoke adverted to the tendency of the early decisions, to construe the statute strictly, in Ford v. Manning, 152 N. C., 151, and said: “And while many of the decisions are to the effect that'these statutes, being in derogation of common right, should be strictly construed, and the petitioner required to bring himself clearly within the meaning of their terms, there is doubt if some of the cases have not gone too far in applying this principle of construction, and if it is not a more wholesome rule to construe the statute in a way to promote its principal and beneficent purpose.”

Following this view, we are of opinion that the petitioners have brought themselves within the language and spirit of the statute by showing that there is no public road leading to their lands, and by offering evidence that the proposed cartway is necessary, reasonable, and just, and that the existence of the permissive way is not fatal to their demand.

Nor do we think the defendant was entitled to have the fourth and fifth prayers for instruction given.

It has been said frequently that a railroad track is notice of danger, and the traveler is required to look and listen before *512crossing it, because it is understood that there is danger, and if we were to hold that a cartway could not be granted- across the right of way and track of a railroad because dangerous, we would, in effect, forbid it in any case.

His Honor properly charged the jury that they must consider the existence of the permissive way, and the danger of the crossing as it was proposed to locate it, in determining whether it was necessary, reasonable, and just, which we think was fair to the defendant.

Upon a review of the whole record, we find

No error.