#### M. HINNANT et al. v. JOHNSTON COUNTY HIGHWAY COMMISSION et al.

(Filed 12 February, 1930.)

Highways C a — County highway commission could discontinue section of road without giving notice under C. S., 3762, under facts in this case.

Where a county highway commission is given authority by statute “to abandon any existing county road or convert it into a cartway” and “to change or relocate any existing road, and add any new roads,” and the power thus given is limited by an amendment adding the words “as now given county commissioners by statute” after the word “cartway”: Held, the limitation of the amendment refers only to “abandonment” and conversion into a “cartway,” and the county highway commission is given power to make a change in an old road by discontinuing a short section thereof without giving notice required of county commissioners by G. S., 3762, but such discontinuance will be restrained until adequate access to a cemetery along the discontinuance is provided.

Appeal by defendants from Midyette, J., at June Term, 1924, of JohNstoN.

Modified and affirmed.

This was an application for an order to restrain tbe defendants from closing a section of a public road. Tbe defendants are tbe Jobnston County Highway Commission, a corporation, tbe individual members thereof, and Joe Pittman, over whose land tbe section of road extends. No evidence was offered at tbe bearing, but tbe material facts appearing from tbe complaint and answers appear to be substantially as herein given.

Tbe closed section is a part of a public road referred to as Old Highway 22. It extended in a northeast and southwest direction a distance of 500 yards on tbe land of tbe defendant Pittman. About two years before tbe bearing tbe Jobnston County Highway Commission constructed and laid a bard surface 'on New Highway 22, which extends east and west through Pittman’s land. At tbe east boundary of this land New Highway 22 connects with tbe Goldsboro Road’which runs north and south. A triangle is thus formed by tbe two roads and Pittman’s eastern boundary line, and in tbe northeast corner of tbe triangle is a cemetery. After New Highway 22 bad been constructed tbe Jobnston County Highway Commission discontinued tbe use of tbe described section of tbe old road and authorized Pittman to barricade it at tbe western boundary of bis land. Thereupon tbe plaintiffs for themselves and on behalf of other taxpayers brought suit to enjoin tbe defendants from obstructing or discontinuing tbe section of Old Highway 22. Tbe defendants admitted that tbe County Highway Commission bad given no notice of its intention to close tbe section of tbe old *294road under 0. S., 3762, and Judge Midyette continued tbe restraining order until tbe bearing in order to give tbe Commission an opportunity to issue a notice in compliance witb said section, without prejudice to tbe legal rights of tbe parties. Tbe defendants excepted and appealed.

Abell & Shepard for plaintiffs.

James D. Parker for defendants.

Adams, J.

The trial court held as a matter of law that tbe Johnston County Highway Commission could not change any part of tbe old road without giving tbe notice prescribed by section 3762 of tbe Consolidated Statutes and, as such notice bad not been given, that tbe order of tbe commission was void. Tbe first question is whether there was error in this ruling.

In 1927 tbe General Assembly created a county highway commission for Johnston County, assigned it certain functions, and defined its powers. Public-Local Laws 1927, cb. 433. Section 8 was as follows: “That immediately upon its organization tbe said county highway commission shall assume control of all tbe public roads of tbe county of Johnston other than State highways. And tbe said county highway commission shall cause to be made a general survey and map of all existing county roads in said county, and the said commission is hereby given full authority to abandon any existing county road or to convert the same into a cartway. Said commission is also vested with full authority to change or relocate any existing road, or add any new roads, endeavoring to so arrange and develop the county road system of Johnston County so as to make it coordinate with the State highway system so far as it is practicable to do so, and likewise to serve in the most practicable manner the several towns and community centers created by the consolidation of the public school districts of the county.” This section was amended by striking out the period after the word cartway and adding the words “as now given county commissioners by statute.” Public-Local Laws 1927, ch. 602, sec. 3. Section 3762 of the Consolidated Statutes provides that the board of county commissioners shall not establish or order the laying out of any public road or discontinue or alter it unless upon petition in writing and unless it appear that every person over whose lands the road may pass shall have had due notice of the intention to file the petition. His Honor was of opinion that the amendment above set out required the County Highway Commission to give a similar notice, but in this conclusion we do not concur. It will be seen that section 8, which we have quoted, contains distinct clauses. In one the County Highway Commission is given full authority to abandon any existing road or to convert it into a cartway, *295“as now given county commissioners by statute”; that is, before abandoning a public road or converting it into a cartway the Commission must give the proper notice of a hearing. But in this ease the old road was neither converted into a cartway nor abandoned. The order discontinuing a short section of it simply made a change in the old road; and the power to make the change was expressly conferred by the clause of section 8 which provides that the County Highway Commission is vested with full authority to change or relocate any existing road or add any new roads. When nothing more than a change of this kind is made the amended statute does not call for such a notice as section 3762 requires of county commissioners. Moreover, the discontinued part of the old road is on the land of the defendant Pittman, with the exception of a very few feet at the western boundary where the two roads intersect, and he not only does not object, but favors the change.

But the proposed change in the road should not be made until adequate and satisfactory access to the cemetery is provided. Under existing conditions, if the change is effected, approach to the burying-ground must be either over the land of Pittman from Old Highway 22 or over the lands of Mrs. Bowen and Pittman from the Goldsboro Road. Those who have occasion to go there to bury the dead, to care for the graves, to protect the property, or to perform any proper and legitimate act must be free from the possible imputation of committing a trespass on the property of others.

To this end the restraining order will be continued to the hearing, although no notice was necessary for a discontinuance of the section of the old road. As modified the judgment is affirmed.

Modified and affirmed.