
    EMMA F. SCOTT and Husband, A. J. SCOTT, v. THE BOARD OF COMMISSIONERS OF CABARRUS COUNTY.
    (Filed 8 December, 1915.)
    Roads and Highways — Relocation—Injunction—Damages—Appeal—Constitutional law.
    By provision of ch. 201, Laws 1907, relating' to the public roads of Cabarrus County, the superintendent is empowered to locate, relocate, widen or otherwise change any public road or part thereof, after filing a petition and map with the board of county commissioners, containing estimated cost and other data, and the superintendent is also required to notify the landowners, who are allowed the right of appeal from the order of the commissioners, providing for a trial de novo in the Superior Court, and for the award of compensation, but that the appeal shall not delay the construction of the road. In this suit to restrain the construction of a proposed relocation, it appeared by affidavit that it would cause permanent and serious damage to the plaintiffs land, and, in defendant’s behalf, that the old road could not properly be kept up on account of springs, a watercourse and the low lay of the land, and that the proposed relocation had been worked on with expense, and that the public convenience of travel required it: Held, an order restraining the relocation of the road to the hearing was properly dissolved.
    Appeal by plaintiff from Shaw, J., at April Term, 1915, of Cababrus.
    Proceeding instituted before the board of commissioners of Cabarrus County in reference to a change of location in a public road, known as the Salisbury road, heard on appeal from the order of commissioners therein to the Superior Court, and on motion to dissolve a preliminary restraining order.
    There was judgment dissolving the restraining order, and plaintiffs, having duly excepted, appealed to this Court.
    
      L. T. Hartsell and Morrison Caldwell for plaintiff.
    
    
      H. S. Williams and J. L. Crowell for defendant.
    
   Hoke, J.

The public road law of Cabarrus County, Laws 1907, ch. 201, sees. 14 and 15, contains provision, among other things, that the superintendent of roads shall have power to locate, relocate, widen or otherwise change any public road, or parts of same, in the county, or lay out and establish a new public road, whenever such location, change, etc., shall be considered necessary and advantageous to public travel, etc., but before doing so he is required to file a petition before the board of commissioners stating the proposed changes, with a map, the estimated costs, number of culverts, bridges, etc. The superintendent is also required to notify the interested landowners, etc. If the proposed change is ordered, the same shall amount to a condemnation, etc., and the superintendent shall proceed to construct the road pursuant to the plan as approved and ordered. In reference to the right of appeal, sec. 15 makes provision: “That any landowner interested may appeal to tbe Superior Court for a trial de novo, on giving a bond for costs,” but “tbe taking of said appeal shall not delay tbe changing, locating or relocating of any public road or tbe discontinuing or abandoning of any public road, according to tbe terms of tbe order made therein by tbe said board of commissioners, unless tbe same be -reversed by tbe trial in tbe Superior Court”’ Tbe statute also makes ample provision for compensation to any landowner injured by tbe proposed changes. In tbe present case, tbe commissioners having made an order for tbe proposed location, plaintiffs appealed and filed in tbe Superior Court their verified complaint, used on tbe bearing as their affidavit and evidence, and in which they specify tbe reasons why tbe restraining order should be continued to tbe bearing, as follows:

“(a) Because tbe line or route recommended by J. M. Burr age, superintendent of roads, at March meeting of tbe board of commissioners, is such a change as is not “necessary and advantageous to public travel” as provided by chapter 201, Public Laws of North Carolina, 1907, tbe same being about 15 feet shorter than the present road¿ and said road will be much more expensive to tbe county to build and will greatly damage said landowners, Emma E. Scott and husband, A. J. Scott.

“(b) Because tbe plan and purpose of said superintendent of roads to erect a fill 40 feet wide and 7 to 10 feet high across tbe bottom lands of Emma E. Scott and husband, A. J. Scott, and to leave an opening of about 110 feet, will cause tbe water of said creek to be dammed and flooded over tbe 25 acres of their land upon which they have been assessed $20 per acre by drainage district, to their great injury and damage.

“(c) Because tbe said change of road and said embankment will -cut off from their pasture a branch of water that has been used for more than twenty years to water their cattle, and this damage and deprivation of tbe use of their branch water could be entirely avoided if tbe road be not changed.

“(d) Because said plan and change of tbe road, as laid out, calls for a cut 8 feet deep within less than 50 feet of tbe plaintiffs’ residence and will cause tbe destruction of a number of fine elm trees in their yard.

“(e) Because said road will take about 4 acres of their best land, which has been improved at great expense, and will cut off a narrow strip of land between said road and tbe dower tract and present road. Said strip will be so narrow as to be almost worthless to them.”

Tbe commissioners, in their verified answer, also used as an affidavit, give a detailed statement of tbe proceedings, and, among other things, make averment as follows:

“That tbe public road in controversy in this proceeding is one of tbe public roads leading out from tbe city of Concord, tbe county-seat of Cabarrus County, and is a coutiuuatiou of East Depot Street from tbe corporate limits, and is known as tbe new Salisbury road. Tbat said public road runs tbrougb one of tbe best and most tbickly settled sections of Cabarrus County, and tbe citizens wbo live in tbat part of tbe county bave no other public road leading from said sections except tbe road in controversy, tbe said road having been a public road, much used since tbe town of Concord was established. On account of tbe many bills, springs and boggy places in tbe old road, it becomes very bad and almost impassable in bad weather, and tbe rural mail carriers and traffic and the citizens and general public, wbo are forced to use this road in coming to and returning from market, and for other purposes, bave for a long time complained of tbe bad condition of this road and bave repeatedly demanded of tbe county to change and improve it; and in order to get tbe best results for tbe public money necessary to build a permanent road, and one which will be tbe greatest good to tbe greatest number, with tbe minimum inconvenience and least damage to tbe lands of those over which tbe changes in tbe proposed road are to run, tbe authorities of tbe county, after mature consideration, adopted tbe line surveyed over tbe lands claimed by plaintiffs, and defendants now believe tbe changes proposed and adopted by them are tbe ones tbat should be carried to completion as speedily as possible for tbe convenience of tbe general public.

“Tbat tbe portion of said road which it is proposed to change, and which plaintiffs oppose and seek to enjoin, is partly across a low, boggy bottom, and a branch flows along tbe old road a greater part of tbe distance across said bottom, which is overflowed by Big Cold Water Creek whenever ,it overflows its" banks, and tbe other part is' a long, steep bill with a number of wet and springy places in same, thus constituting one of tbe worst sections of public road in Cabarrus County, and on account of tbe topography and physical condition of tbe land in which this section of tbe road lies, makes tbe proposed change absolutely necessary and very advantageous to public travel; it being impossible to make a good road across tbe said low or bottom land without making a fill several feet high, and it is impracticable to build said fill in tbe old road because of tbe branch which runs along for some nine hundred feet across said bottom, and tbe wet, springy places at other points along said old road and tbe dirt necessary to make a proper fill across said bottom cannot be gotten by following tbe said road up said bill without hauling said dirt for a long distance and necessitating,making a cut several feet deeper than tbe one about eighteen inches deep contemplated by defendants in front of tbe bouse where plaintiffs reside; and, besides, tbe proposed change is shorter and more direct, affording a better grade and drain to tbe roadbed at much less cost and expense to tbe county than to make a road where the old road runs; and, when completed, will be well drained and rnncb more desirable and advantageous to tbe public travel, and a more permanent roadbed, and less expensive to keep in good condition tban to build tbe road along tbe old roadbed or in another place.”

Tbe affidavit of tbe commissioners contains further and elaborate statement of tbe conditions making it impossible to use or improve tbe old road to advantage, and further, that large sums of money have been already spent in preparing tbe present road for use and necessary bridges built at great expense, and that if this road and its use. should now be stopped by restraint, large numbers of citizens would be without tbe use of a public way.on which to travel and would cause irreparable and unnecessary damage to tbe county and tbe public.

Tbe affidavit then closes with allegations as follows:

“Tbe work has been about completed on tbe west side of tbe creek, between said creek and Concord, and if tbe defendants should be restrained from continuing said work on east side of said creek tbe result would be to force tbe authorities of tbe county to move tbe convict force and camp to some other section of tbe county, and tbe abandonment of tbe work of this road, and insure a large and unnecessary expense to tbe county and work a very great hardship and inconvenience to tbe citizens in this whole section of tbe county and upon the public travel; and instead of said proposed change of road working any hardships or inconvenience upon plaintiffs or injuring or damaging them, it would be a great convenience and benefit to them and enhance tbe value of tbe property they claim more than any other .property along said improved road; but even if said change should damage tbe property of plaintiffs, they have their remedy in an action for damages. And a public improvement so necessary and advantageous to such a large number of citizens and taxpayers of tbe county and tbe general public, which aids tbe development of tbe resources of tbe county, should not be interfered with and stopped because of tbe objection of tbe plaintiffs.”

Upon these, tbe affidavits and evidence of tbe respective parties, we think tbe case presented in tbe record, as it now appears, is one where, under many decisions of our Court, tbe private light must yield, for tbe present, at least, to tbe public good, and that tbe restraining order was properly dissolved. Jones v. Lassiter, 169 N. C., 750; Little v. Lenoir, 151 N. C., 415; Griffin v. R. R., 150 N. C., 312; Durham v. Cotton Mills, 141 N. C., 615; Vickers v. Durham, 132 N. C., 880; Dorsey v. Allen, 85 N. C., 358.

Not only is this true on general equitable principles, as illustrated and approved in these decisions, but it undoubtedly should prevail in this case; tbe statute itself containing express provision that, when tbe proposed plan or scheme is approved by tbe board of 'commissioners, tbe work shall not be delayed unless tbe same be reversed by tbe trial in tbe Superior Court — a provision that is clearly not unreasonable, on perusal of the present record.

As heretofore stated, the statute makes express and adequate provision for an award of damages if plaintiffs have been wrongfully injured in the proposed location of the road.

There is no error, and the order of his Honor is

Affirmed.  