Brown v. . Glass , 229 N.C. 657 ( 1948 )

Seawell, J.

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. Warhole 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 wdiich the statute has heretofore been administered, and the opportunity the lawmakers have had to amend it, leave 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

Eeversed.