{
  "id": 12167474,
  "name": "W. A. BROWN and Wife, ELIZABETH BROWN, v. M. E. GLASS and Wife, CLELLIE GLASS",
  "name_abbreviation": "Brown v. Glass",
  "decision_date": "1948-12-15",
  "docket_number": "",
  "first_page": "657",
  "last_page": "660",
  "citations": [
    {
      "type": "official",
      "cite": "229 N.C. 657"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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      "category": "reporters:state_regional",
      "reporter": "S.E.",
      "opinion_index": 0
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    {
      "cite": "103 N. C. 122",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "192 N. C. 470",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8623658
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      "case_paths": [
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    {
      "cite": "158 N. C. 504",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8655823
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      "opinion_index": 1,
      "case_paths": [
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    {
      "cite": "152 N. C. 151",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11270045
      ],
      "opinion_index": 1,
      "case_paths": [
        "/nc/152/0151-01"
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  "last_updated": "2023-07-14T16:16:54.231798+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "W. A. BROWN and Wife, ELIZABETH BROWN, v. M. E. GLASS and Wife, CLELLIE GLASS."
    ],
    "opinions": [
      {
        "text": "Seawell, J.\nThe plaintiffs\u2019 right to a cartway over defendants\u2019 land is subject to strict observance of the conditions laid down in the statute. The statute itself is in derogation of the right of the adjoining landowner over whose land the cartway passes and must be strictly construed. Warhole v. Lowman, 103 N. C. 122, 9 S. E. 458. The statute enumerates the purposes for which the petitioner\u2019s land must be used in order to confer upon the owner the right of a \u201cway of necessity\u201d over another\u2019s land and the listing of them excludes other uses not named, the presence of one of those named becoming a condition precedent to the exercises of the right. It will be observed that all of them respect substantial traffic or transportation of products taken from the land.\nOne of the uses of the land justifying the condemnation of an outlet or cartway is cultivation of the soil. The appellees urge that the building of a home implies such cultivation, certainly of a garden spot, and that this presumption brings their case -within the statute. The presumption, if we could indulge it, is by no means violent; and we must perforce, in view of the strictness with wdiich the statute has heretofore been administered, and the opportunity the lawmakers have had to amend it, leave it to the Legislature to say when they shall regard mere home owners and home builders as important as the industries in which they engage and the products they take from the land.\nWe have no doubt that the petitioners could truthfully say that they were planning to cultivate at least some portion of their small holdings, but we seriously question whether we can say it for them. At present the evidence does not bring the petition within the statute.\nIt is unnecessary to deal with other objections to the trial. The demurrer should have been sustained; the order to the contrary is\nEeversed.",
        "type": "majority",
        "author": "Seawell, J."
      },
      {
        "text": "Devint, J.,\ndissenting: I do not agree that the provisions of the cart-way statute should be so strictly construed as in this case apparently to defeat its remedial purpose.\nIn Ford v. Manning, 152 N. C. 151, Justice Hoke said, \u201cWhile 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.\u201d\nAnd in Gorham v. E. E., 158 N. C. 504 (511), Justice Allen adopted the above quoted language of Justice IIolee as expressing the proper basis for decision in the later case. Said he: \u201cFollowing this view, we are of opinion that the petitioners have brought themselves within the language and spirit of the statutes 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.\u201d\nHere the petitioner, according to his evidence, had planned to build a home on land he had purchased, and had the lumber sawed, but was unable to haul the material for building the house to his premises from the Hilltop Eoad, two-tenths of a mile away, except over a private way on defendant\u2019s land. The defendant had withdrawn permission to use the way for this purpose, and suggested that petitioner could either sell his land or \u201cget an airplane.\u201d Plaintiff then instituted this action to obtain a cartway.\nThe question largely litigated below was whether petitioner had another and longer permissive way available, but this was resolved by the jury in favor of the petitioner. Building on a tract of land a home, with those surroundings which are usually associated with a dwelling, would seem to carry necessarily the connotation of \u201caction preparatory\u201d to the cultivation of land. G.S. 136-69. As was said in Brown v. Mobley, 192 N. C. 470 (474), \u201cHome-owning in the country should be encouraged in every way\u2014better homes, with convenient roads leading to them.\u201d\nI think the petitioner\u2019s evidence was sufficient to survive a nonsuit, and that the verdict and judgment should be upheld.",
        "type": "dissent",
        "author": "Devint, J.,"
      }
    ],
    "attorneys": [
      "Wm. E. Comer for plaintiffs, appellees.",
      "Frazier & Frazier for defendants, appellants."
    ],
    "corrections": "",
    "head_matter": "W. A. BROWN and Wife, ELIZABETH BROWN, v. M. E. GLASS and Wife, CLELLIE GLASS.\n(Filed 15 December, 1948.)\n1. Highways \u00a7 15\u2014\nG.S. 136-68 and G.S. 136-69, relating to the establishment of cartways for ingress and egress to a highway over intervening lands, are in derogation of common law and must be strictly construed.\n2. Same\u2014\nPetitioners are not entitled to the establishment of a cartway over the intervening lands of another for the purpose of egress to the highway for a home they propose to construct on their adjoining land, since such use does not come within those enumerated in the statute.\nDevin, J., dissenting.\nDefeNdantts\u2019 appeal from Burgwyn, Special -Judge, February 16, 1948, Civil Term, Guilfokd Superior Court.\nThis proceeding was begun by petition for a cartway over the lands of defendants by adjoining landowners, alleging that petitioners have no outlet or means of egress to the public road except as it be granted over defendants\u2019 land, and that defendants have refused to permit them to pass over it. G.S. 136-68, 136-69.\nThe case reached the Superior Court of Guilford County on appeal of defendants.\nOn the trial the evidence of plaintiff tended to show that they owned a small tract of 11\u00bd acres of land on 'which it was their intention to build a home. The land joins the land of Brown, Jr.\u2019s father, but there is no road over that land which plaintiffs can use except a log road, over \u25a0which plaintiffs might pass in dry -weather, but could not get out that -way in wet weather. That way is six-tenths of a mile to a highway, and over the land of the defendants to a public road is two-tenths of a mile.\nThe evidence as to the road crossing the elder Brown\u2019s adjoining property tended to show that at times when the weather w7as dry it could be used but at other times, when the weather was wet, it was practically impassable or could be used only with difficulty.\nThe evidence disclosed that the defendant had once agreed that plaintiffs might have a road over his land but changed his mind and informed them if they got over it, it must be by airplane.\nAt the conclusion of plaintiffs\u2019 evidence the defendants demurred thereto and moved for judgment as of nonsuit. The motion was declined and defendants excepted.\nWm. E. Comer for plaintiffs, appellees.\nFrazier & Frazier for defendants, appellants."
  },
  "file_name": "0657-01",
  "first_page_order": 711,
  "last_page_order": 714
}