# Brown v. . Glass

> Supreme Court of North Carolina · December 15, 1948 · 229 N.C. 657

URL: https://www.frixlaw.com/law-library/cases/9812646

## Case

- **Full name:** W. A. Brown and Wife, Elizabeth Brown v. M. E. Glass and Wife, Clellie Glass.
- **Court:** Supreme Court of North Carolina
- **Decided:** December 15, 1948
- **Citations:** 229 N.C. 657; 50 S.E.2d 912; 1948 N.C. LEXIS 389
- **Precedential status:** Published
- **Opinion:** Dissent by Devint
- **Judges:** Seawell, Devint
- **Cited by:** 4 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9812646

## Opinion text

Devint, J.,
dissenting: I do not agree that the provisions of the cart-way statute should be so strictly construed as in this case apparently to defeat its remedial purpose.
In Ford v. Manning, 152 N. C. 151 , Justice Hoke said, “While many of the decisions are to the effect that these statutes, being in derogation of common right, should be strictly construed, and the petitioner required to bring himself clearly within the meaning of their terms, there is doubt if some of the cases have not gone too far in applying this principle of construction, and if it is not a more wholesome rule to construe the statute in a way to promote its principal and beneficent purpose.”
And in Gorham v. E. E., 158 N. C. 504 (511), Justice Allen adopted the above quoted language of Justice IIolee as expressing the proper basis for decision in the later case. Said he: “Following this view, we are of opinion that the petitioners have brought themselves within the language and spirit of the statutes by showing that there is no public road leading to their lands, and by offering evidence that the proposed cartway is necessary, reasonable, and just, and that the existence of the permissive way is not fatal to their demand.”
Here the petitioner, according to his evidence, had planned to build a home on land he had purchased, and had the lumber sawed, but was unable to haul the material for building the house to his premises from the Hilltop Eoad, two-tenths of a mile away, except over a private way on defendant’s land. The defendant had withdrawn permission to use the way for this purpose, and suggested that petitioner could either sell his land or “get an airplane.” Plaintiff then instituted this action to obtain a cartway.
The question largely litigated below was whether petitioner had another and longer permissive way available, but this was resolved by the jury in favor of the petitioner. Building on a tract of land a home, with those surroundings which are usually associated with a dwelling, would seem to carry necessarily the connotation of “action preparatory” to the cultivation of land. G.S. 136-69. As was said in Brown v. Mobley, 192 *660 N. C. 470 (474), “Home-owning in the country should be encouraged in every way—better homes, with convenient roads leading to them.”
I think the petitioner’s evidence was sufficient to survive a nonsuit, and that the verdict and judgment should be upheld.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9812646. Public record. Not legal advice.