concurring.
I agree that this matter must be remanded to the Superior Court. I write separately to express my opinion that the cartway statute provision cited by petitioner is unconstitutional on its face under both North Carolina’s Constitution, Article I, Section 19, and under the Due *147Process Clause of the Fourteenth Amendment of the United States Constitution.
“Cartways are regarded as quasi-public roads, and the condemnation of private property for such a use has been frequently sustained upon that ground as a valid exercise of the power of eminent domain.” Barber v. Griffin, 158 N.C. 348, 350, 74 S.E. 110, 111 (1912). “It is clear that private property can be taken by exercise of the power of eminent domain only where the taking is for a public use.” Highway Commission v. Thornton, 271 N.C. 227, 241, 156 S.E.2d 248, 259 (1967). Our Supreme Court has noted that “[w]hen the way is a private one, the right of eminent domain cannot be successfully invoked.” Cozard v. Hardwood Co., 139 N.C. 283, 288, 51 S.E. 932, 934 (1905). In general, cartways have been considered permissible exercises of eminent domain powers because cartways are available for public use. Id.
The now-repealed portion of our cartway statute authorizing petitioner essentially to condemn from his neighbors’ property a driveway for his private use to his home does not support any public purpose; such a cartway is neither open to the public nor does it provide any quasi-public benefit to the community. Accord Kalo and Kalo, Putting the Cartway Before the House: Statutory Easements by Necessity, or Cartways, in North Carolina, 75 N.C.L. Rev. 1943, 1962 (1997). The statutory provision used by petitioner to assert a cartway to his private home was allowed to “sunset” by the legislature on 1 July 1997. This was a wise course of action, for I believe that portion of Act of July 29, 1995, ch. 513, sec. 2, 1995 N.C. Sess. Laws 1823, 1823-25 allowing a “private way” for “the use of land as a single-family homestead” is unconstitutional. “ ‘The question, what is a public use, is always one of law. Deference will be paid to the legislative judgment as expressed in enactments providing for [the] appropriation of property, but it will not be conclusive.’ ” Cozard at 295, 51 S.E. at 937 (quoting 6 Thomas M. Cooley, Const. Lim. 660-61 (1890)). I believe the legislature overstepped our constitution, which restricts all three branches of government, when it enacted the provision on which petitioner here relies allowing the condemnation of cartways for seven-acre private homesteads.
I concur that the appeal is not yet properly before this Court. If it were, however, petitioner would fail in his argument because his statutory authority is unconstitutional.