DEVIN, J., dissenting. This 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 *Page 658 defendants' land, and that defendants have refused to permit them to pass over it. G.S. 136-68, 136-69.
The case reached the Superior Court of Guilford County on appeal of defendants.
On the trial the evidence of plaintiff tended to show that they owned a small tract of 11 1/2 acres of land on which it was their intention to build a home. The land joins the land of Brown, Jr.'s father, but there is no road over that land which plaintiffs can use except a log road, over which 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 it two-tenths of a mile.
The evidence as to the road crossing the elder Brown's adjoining property tended to show that at times when the weather was 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.
The evidence disclosed that the defendants 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.
At the conclusion of plaintiffs' evidence the defendants demurred thereto and moved for judgment as of nonsuit. The motion was declined and defendants excepted. The plaintiffs' right to a cartway over defendants' 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. Warlick v. Lowman,103 N.C. 122, 9 S.E. 458. The statute enumerates the purposes for which the petitioner's land must be used in order to confer upon the owner the right of a "way of necessity" over another's 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.
One 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 which the statute has heretofore been administered, and the opportunity the lawmakers have had to amend it, leave *Page 659 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.
We 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.
It is unnecessary to deal with other objections to the trial. The demurrer should have been sustained; the order to the contrary is
Reversed.