Leath v. . Summers , 25 N.C. 108 ( 1842 )

This was a petition to turn a road. The defendants moved the Court to dismiss it because there was no allegation in it, that the new road was necessary, or would be more useful to the public. The Court, for this reason, dismissed the petition, and the petitioners appealed. We are of opinion that the judgment of the Court was correct. By Rev. Stat., ch. 104, sec. 1, the County Court has power to order the laying out of public roads, when necessary; and to alter roads as often as occasion shall require, so as to make them more useful. The second section of the said act, after pointing out the mode of proceeding (110) in petitions of this kind, authorizes the County Court "to hear the allegations set forth in the said petition"; and, if sufficient reasons be shown, the Court has power to order the laying out or discontinuance of the said road, as the case may be. This petition has no general nor particular allegation in it, that the road sought to be established, would either be necessary or useful to the public. The Court, therefore, had no power to hear witnesses to prove anything, except the allegations set forth in the petition; and these allegations ought to be such as to make a proper case, coming within the meaning of the act of Assembly. The petitioners did not move to amend their petition.

PER CURIAM. Affirmed.

Cited: Shoffner v. Fogleman, 44 N.C. 282.

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