In November, 1883, more than forty of the citizens, residing in Logan Store Township, of Rutherford County, applied to the board of county commissioners by petition in writing, for an order to lay out and establish a public road between certain terminal points therein mentioned, some three miles in length, and over and along a cartway which had long been in use. The proposed road for about half the distance passes over land belonging to D. Beam, who alone by answer resisted the application. Afterwards Beam himself interposed by petition, and asked the board for leave to enclose his Houser plantation of 475 acres, at his own expense, under the stock law then in force, with the right to erect gates across the roads leading through the same.
The following action was taken in the premises by the board:
"In the matter of a petition to lay out a public road from the Punchen Branch, on the Shelby and Morganton road, to Logan's Store post office.
"This cause coming on to be heard upon the petition, and (316) upon the answer of D. Beam, the defendant, and the evidence introduced, it is ordered and adjudged that the prayer in the petition for a public road be granted, and that a public road be laid off as asked for in said petition, beginning at the Punchen Branch, on the Shelby and Morganton Road, and running thence with the old cart-way to the post-office at Logan's Store; said road to be laid out with as little prejudice to land and enclosures along it as may be, and with as much advantage to the inhabitants as possible.
"And let an order issue, and the sheriff of this county is ordered to summon a jury to lay out the same as the law directs, and to assess any *Page 252 damages private persons may sustain, and make report of the same, and that the petitioners and the defendants each pay one-half the costs of this petition.
"The above order is made, and the road to be laid out, upon condition that D. Beam have the privilege of establishing and keeping up two gates on his Houser place, at such points as he may choose, said gates to be kept in good order for the convenience of the public."
From this order the plaintiffs, under section 2039 of The Code, took an appeal to the Superior Court.
When the case was called for trial, his Honor said that in his opinion there were no issues to be tried by the Superior Court, and dismissed the appeal. From which order the plaintiffs appealed. It will be noticed, that the removal by appeal or otherwise to the Superior Court, authorized by the section referred to, contemplates a trial by jury of any issue of fact which may arise and become material to the action of the (317) commissioners, and while this is the primary object, it is equally manifest that any error in law committed by them in exercising the conferred power, may be inquired into and corrected in the Superior Court. The appeal given to this Court will, however, bring up for review only erroneous and specified rulings made by the judge of the Superior Court.
There is no suggestion in the record of any irregularity or disregard of the requirements of the statute in acquiring jurisdiction of the subject-matter, authorizing the intervention of the judge of the Superior Court; nor of any controverted fact, to be passed on by the jury. There was then no wrong pointed out to be redressed by an appeal. The proper judgment then to be rendered was perhaps one of affirmation, but the dismissal of the appeal has the same effect in leaving the action of the commissioners in force and undisturbed.
The appeal to this Court, as is correctly argued in the brief of counsel of the appellee, can raise the only question of the legal efficacy of so much of the action of the commissioners as gives the defendant or contesting party the privilege of erecting and maintaining two gates on his land across the road, to be kept "in good order for the convenience of the public."
The authority to license in proper cases, and thus avoid the expense of double fencing, the putting up of gates across a public road is as explicitly conferred in section 2058 upon the board of township *Page 253 supervisors, as is that to establish highways upon the county authorities, and when an independent movement to secure this privilege or license in reference to existing roads is made, it must be before the former body, to whose discretion the exercise of the power is committed.
But inasmuch as the laying out of highways is entrusted to the county commissioners, and this may be done without restrictions, we see no reason for refusing the authority to establish them, with such conditions, as without serious detriment to the public, lessen (318) the damages which would otherwise fall upon the owner of the land passed over, and when these conditions are such as may be annexed to the enjoyment of the easement by the separate subsequent action of the subordinate township supervisors. We confine the qualifying restrictions to such as are incident to the use of the public easement, and recognized as such by the law itself. Why, it may be asked, when the public sanction is sought and the whole subject is before a body with ample jurisdiction to allow or refuse the application of those who desire the highway, should the owner of the land over which it is to pass, be driven to another tribunal in seeking a relief which, as incidental to the application, ought to be given as a qualification of the allowance of the highway?
No sufficient reason for denying this right to the commissioners appears to us, and a resort to the form of procedure prescribed in the section (2058) becomes necessary only in cases of roads already established, and this for the greater convenience of the landowner himself.
There is no error and the judgment is affirmed.
No error. Affirmed.
Cited: McDowell v. Insane Asylum, 101 N.C. 659.