In Re Petition of Edwards

CLARKSON, J., concurring in result. T. H. Edwards filed a petition with the board of commissioners of Yancey County requesting that part of an old public road on his land be closed. Several citizens certified that the road was not needed or used by the public. The commissioners made an order that the road be abandoned. An adjoining landowner appealed to the Superior Court and Judge Schenck found certain facts, dismissed the proceeding, and ordered that the road remain open for public use. The petitioner appealed.

In 1931 the General Assembly enacted additional legislation relating to the highway system and to the maintenance of the public roads of the State. Pub. Laws 1931, ch. 145. It was provided in section 7 of this act that after 1 July, 1931, the exclusive control, management, and responsibility for all public roads in the several counties should be vested in the State Highway Commission and that the place of county, district, and township road commissioners should be abolished. All roads composing the several county road systems were to be mapped on or before the first day of May, 1931, and at the courthouse door in each county a map was to be posted showing all roads making up the county road system. All these roads to which no objection was made were to constitute the county road system for the respective counties. The State Highway Commission was authorized to change the maps at any time before they were posted so as to include any roads that did not appear on the printed maps. Only those appearing on the maps were to be taken over by the Highway Commission. Section 11. The petition referred to in section 14 is applicable only to a road in the county road system.

Article 13, chapter 70, of the Consolidated Statutes deals with cartways, church roads, mill roads, and like easements. This article was amended by chapter 448, Public Laws 1931, by which it is provided that the establishment, alteration, or discontinuance of any of these easements shall be determined by a special proceeding instituted before the clerk of the Superior Court of the county in which the property affected is situated. By chapter 302, Public Laws 1933, this act (ch. 448), was amended by the insertion of section 3838 1/2, which is as follows: "That all those portions of the public road system of the State which have not been taken over and placed under maintenance or which have been abandoned by the State Highway Commission, but which remain open and in general use by the public, and all those roads that have been laid out, constructed, or reconstructed with unemployment relief funds under the supervision of the Department of Public Welfare, are hereby declared to be neighborhood public roads, and they shall be subject to all of the provisions of this act with respect to the alteration, extension, or discontinuance thereof, and any interested citizen is authorized to institute such proceeding."

The road described in the petition is not on the map posted in Yancey and is not included in the "county road system" taken over by the State Highway Commission; nor is it a cartway, church road, or mill road. It is a neighborhood road within the meaning of the quoted act, and the question of its discontinuance must be determined by a special proceeding instituted before the clerk.

As the board of county commissioners had no jurisdiction the judgment dismissing the petition is affirmed, but the clause providing that the road shall remain open should be stricken out.^*

Modified and affirmed.

^* This opinion was written in accordance with the Court's decision and adopted and filed, by order of the Court, after Justice Adams' death. 23 May, 1934. Brogden, J.