Nash County NcArchives Court.....Green, Mr 1811
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Deb Haines ddhaines@gmail.com December 9, 2005, 1:51 am

Source: North Caroline Reports, Vol. 6
Written: 1811

GREEN v. EALMAN.

From Nash; July Term 1811

pages 14-15

A appeals from the order of the County Court granting leave to B to build a 
mill, etc. The order of the County County is affirmed. A is liable for the 
costs in the Superior Court under the general law regulating appeals; B is 
liable for the costs of the County Court under laws 1779, ch. 23.

THIS was a petition for leave to build a mill, filed under Laws 1779, ch. 23, 
sec. 2.* Green, the petitioner, owning the land on one side of the run, and 
Ealman owning the land on the other side. Ealman having been summoned to 
answer the allegations of the petition, appeared, and prayed that leave to 
build the mill might be granted to him, and not to the petitioner Green. The 
County Court decreed that leave should be granted to Ealman to build the mill. 
From this decree of the County Court the petitioner Green appealed to the 
Superior Court, and gave bond and security according to the act of Assembly 
regulating appeals. The Supreme Court affirmed the decree of the County Court; 
and it was submitted to the Supreme Court to determine which of the said 
parties should pay the costs, and in what manner, and to what extent, if the 
costs be divisible.

LOCKE, J. The Legislature evidently intended that as the party applying for an 
order to erect a mill was to have a portion of his adversary's property 
condemned, to answer a public purpose as well as a private benefit to the 
party intending to erect such mill, this condemnation and appropriation should 
be at the costs of the party making the application. Yet it would appear that 
this provision only extended to the costs of the County Court. If, therefore, 
a party against whom the County Court make the order should appeal from that 
order to the Superior Court, he takes the appeal subject to the general law of 
the country regulating costs upon appeals. He will therefore be liable to or 
exempt from the payment of those costs, according to the event of the suit; if 
it terminate in his favor, he will be exempted from costs; if otherwise, he 
must pay the costs. In the present case the same party prevailed in both 
courts; and therefore the party appealing is bound to pay the costs of the 
Superior Court, under the general law and the party in whose favor the order 
was granted is equally bound to pay the costs in the County Court, under the 
special act of Assembly provided for that particular case.

*Section 2. Be it further enacted, that any person willing to build such mill, 
who hath land only on one side of a run, shall exhibit his petition to the 
County Court, and therein show who is the proprietor on the opposite side of 
the run; whereupon a summons shall issue to such proprietor to appear at the 
next court and answer the allegations of such petition; and the court a1so, at 
the same time, shall order four honest freeholders to lay off, view and value, 
on oath, an acre of the land of such proprietor, and also an acre of land of 
the petitioner opposite thereto, and to report their opinion and proceedings 
thereon to the next court, and thereupon the court shall order the said report 
to be recorded; and if it takes not away houses, orchards, gardens, or other 
immediate conveniences, said court shall and may, and are hereby empowered and 
authorized to grant leave to the petitioner, or such proprietor, to erect such 
mill at the place proposed, as in their discretion shall seem reasonable, and 
to order the costs of such petition to be paid by the person to whom such 
leave shall be granted.


North Caroline Reports, Vol. 6, Cases Argued and Determined in the Supreme 
Court of North Carolina, Reported by A.D. Murphey, Annotated by Walter Clark. 
1811 to 1813, Inclusive and at July Term, 1818. Reprinted by the State. E.M. 
Uzzell and Company, State printers and binders, 1910.

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