Rylee v. State , 106 Miss. 123 ( 1913 )

Reed, J.,

delivered the opinion of the court.

Appellant was convicted on a charge of obstructing a public highway in Benton county. He contends in his defense (1) that the road traveled by the public at the point where obstructed had been shifted from time to time,, so that now it was not in its original location, but was through his land, and that, being on his land, and not in its proper place, he had a rig’ht to build a fence across it; (2) that the road was not laid out and established in accordance with the provisions of the statute.

The facts relating to the first contention were properly submitted to the jury, and the verdict of conviction resolved them against appellant. As to" the second contention, counsel for appellant in his brief states his position in the following language: “There can be no prosecution, unless the road obstructed was really and truly a public highway, laid out in the letter and spirit of the provisions of the Code. We rest our case on this fact.”

We .understand appellant maintains that there can be-no conviction for obstructing a public road, unless such road has been laid out and established in strict accordance with the provisions of the Code. The highway in question is know as the “Holly Springs and-New Albany road.” It has been in existence and in use for a long* number of years. In fact, a road by this name is shown to have existed long prior to the Civil War. Benton county was created by an act of the legislature in 1870. The road was then well known and generally used by the public.

The minutes of the board of supervisors of Benton county, under dates of July 28,1870, and August 1, 1870, show the organization of the new county. The minutes show that on August 2, 1870, the following order was passed by the board: ‘ ‘ Ordered that the Holly Springs and New Albany road be established within the limits of Benton county.” And on August 16, 1870: “Ordered that Cosby Hudson be appointed overseer on the Holly Springs and New Albany road from old Tippah line to Marshall county line, with hands, in their lawful bounds.” The record- shows that overseers have been appointed for the Holly Springs and Newí Albany road and persons assigned to work thereon. The- road continued to be generally used by the public pmtil the time of its obstruction.

It seems to be well settled that a highway may be created by prescription or by. dedication, as well as by being laid out and established in accordance with statutory provisions. In his work ori Boads and Streets (3 Ed.), volume 1, paragraph 3, 'Judge Elliott says, referring to the establishment of a highway, that “the mode of its creation does not of itself iiivariably determine its character, for this, in general, is determined by the rights which the public have in it.” In American & English Ency. of Law (2 Ed.), volume 15, page 494, we find the following regarding the mode of. creation of highways: “Provided the road is a highway, the mode in which it became such is immaterial, and consequently there may, in the absence of a statutory limitation, be an obstruction of a highway by prescription or by dedication, provided the dedication has been accepted.” It has been decided that a highway may be established by immemorial usage. Reed v. Northfield, 13 Pick. (Mass.) 94, 23 Am. Dec. 662; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560.

We take the following from Reed v. Northfield, supra: “But if an uninterrupted use of-'a highway and the support of it by the town for forty years, which is now the longest term of prescription known to the law, would not establish it, it would be equivalent to declaring that there can be no highway proved in any mode but by the record of its being laid out, which, in regard to many, and those the most important and ancient highways of the commonwealth, would be utterly impossible. But, without dwelling upon the supposed inconvenience of a different rule, we think it clear upon principle that public easements, as well as others;- may be shown by long and .uninterrupted use and enjoyment, upon the conclusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and established by competent authority.” In Blodgett v. Royalton, 17 Vt. 40, 42 Am. Dec. 476, it was decided that a public highway may be created by adoption and use, and the owner of the land may thereby lose his right to fence in and control the use thereof.

It appears from the opinion in the case of Tegarden v. McBean, 33 Miss. 283, that it is recognized in this state that a highway may be established by prescription. It was decided in the ease of Kinnare v. Gregory, 55 Miss. 612, that “a highway may be as effectually established by a dedication by the owner or owners of the freeholds over which it is to pass, and the acceptance .thereof on the part of the public, as by the mode prescribed in the statute. The dedication may be either by a formal grant, or by any such acts as manifest the intention of the freeholder, or freeholders, that the community shall have and enjoy a highway on their private property. The • acceptance may be made either by the officials competent to represent the public, or may be implied from circumstances, such as user,” etc.

Judge Stmeali,, delivering the opinion of the court in that case, after stating it was contended that the road in question was not a public highway, because it was not established by the proper authority in manner prescribed by the Code sections, and after stating that there were public highways at the date of the revision of the law, said: “These were recognized, and a method was laid down by which existing roads may be changed and new ones opened. But. it is a grave mistake to suppose that a highway may not be established by the owner or owners of the freehold, which, when accepted by the public, is as complete as if the methods appointed in the statute were pursued.” He further stated in the opinion that acceptance of a dedication may be shown in two ways: ‘ ‘ By the formal act of the proper authority competent to speak and act for the public, or may. be implied from circumstances, snob as user, etc. -. Easements which depend for their support on prescription rest on the long enjoyment of the right acquiesced.in by the proprietors of the fee.” Again, referring to the statute relating to the establishment of roads, he said': “The statute was not designed to interfere 'With or'prohibit the common-law methods of granting the easement of the highway, but the plain intendment was to define a method by which the state could compel the private owner to yield the easement to the public. ”

It is immaterial in this case whether the Holly Springs and New Albany road was a highway created by dedication, that is, by either a grant, or-by such acts as manifested the intention of the original freeholders that the community should have and enjoy, a highway over their land, or whether it existed by prescription, which follows the presumption that it was established by the proper authority, in the manner provided bylaw; for it is shown that it is a roadway which has been used for a long number of years by the public, and for such great length of time as to establish it as a highway. The public long-enjoyed the right to use this road as a highway, and it can be said that there w.as a dedication of the road through the long acquiescence, of the original proprietors of the fee, and by their acts which manifested such intention, and also that the acceptance of such dedication is fully implied from circumstance of the immemorial usage thereof. At the same time, the using of the road by the public for so very many years, about a half century, and the country’s adopting, supervising, and working it as a public road, are' sufficient to establish it by prescription as a highway.

Appellant relies upon the cases of Craft v. De Soto County, 79 Miss. 618, 31 So. 204, and State v. Morgan, 79 Miss. 659, 31 So. 338, to support his contention. In these cases the court was considering’ the sufficiency of the proceedings of the board of supervisors in opening and laying out new roads. In neither case was the subject of the establishment of a highway by dedication or prescription under consideration.

The Holly Springs and New Albany road is a public highway within the intendment of the statute, the obstruction of which is an offense.

Affirmed.