#### WILLIAM CAROON vs. SANDFORD E. DOXEY.

The owner of a tract of land, who does not reside on the same, nor has cultivated, fenced, or in anywise improved any part of it, but has only used it as a range for cattle, is not entitled to a private way over the adjoining land, under the Act of Assembly, Rev. Stat. ch. 104, sec. 33.

Aureal from the Superior Court of Currituck.

This was a petition for a private way, heard before his Honor Judge Saunders, at the Fall Term, 1855. The petitioner alleges that he is “settled upon, using and possessed of a tract of land in said State and County, adjoining the lands of .the defendant and others, and that there is no public road leading to the same, and no way to go to or from the same, without crossing the lands of others.” He, therefore, prays the Court for an order for a private way over the lands of the defendant, to the public road. The defendant, being duly notified, appeared and opposed the granting of the order, and the case having come up to the Superior Court by appeal of plaintiff, it appeared by the evidence that the petitioner had no way to get to or from the land in question, except by crossing- the lands of other persons. That there was no public road leading to or from the same. That the land was granted to him in 1853, and he has had his cattle upon the same. That it is swamp land, not fenced or cultivated on any part of it, and that there is' no improvement upon it; also, that the cattle of other persons in the neighborhood, commonly resorted to the same as a range. Hpon this state of facts his Honor was of opinion against the application and dismissed the petition, and the plaintiff appealed.

*24 Pool, for tlio plaintiff.

Jordan, for the defendant.

Pearson, J.

The allegation that the petitioner “ is settled upon the land,” brings the case within the words of the Statute, but unfortunately for the petitioner, this allegation is not sustained by the proof. It is a tract of swamp land, and the petitioner has his cattle upon it; but there is no fence around it, and it is a range for the cattle of other persons as well as those of the petitioner. He does not live upon it or cultivate any part of it, or use it except as a range for his cattle. Tin’s does not sustain the allegation that he is “ settled upon it.” As is said in Lea v. Johnston, 9 Ire. Rep. 15, “ the case, therefore, does not come within the words of the Act, and if we depart from the words, there is no;stopping short of an unlimited discretion, by which the land of one man may be taken for the use of another. To authorise this, there should be a plain expression of the legislative will. In the absence of such provision, individuals must be left to depend upon the courtesy of good neighborship or the acquisition, by grant, of the right of private ways.”

The doctrine of a right of way of necessity, as laid down in Hetfield v. Baum, 13 Ire. 395, is not applicable to this case. There is no error.

Per Curiam.

Judgment affirmed.