Burnley v. Mullins

• Decision Date: 12 June 1905
• Citation: 86 Miss. 441,38 So. 635
• Court: Mississippi Supreme Court
• Parties: EDWENA BURNLEY ET AL. v. FRANK B. MULLINS

38 So. 635

86 Miss. 441

EDWENA BURNLEY ET AL. v. FRANK B. MULLINS

Supreme Court of Mississippi

June 12, 1905

FROM the circuit court of Copiah county, HON. D. M. MILLER, Judge.

Miss Burnley and others, appellants, were plaintiffs in the court below, and Mullins, appellee, was defendant there.

The plaintiffs brought their action of trespass quare clausum fregit against defendant, charging in their declaration the cutting of a fence inclosing plaintiffs' land, and also that the defendant, after breaking and entering the enclosure, "then and there with his feet, in walking and by riding and driving through the said land, trod down trampled upon, consumed, and spoiled the grass, herbage etc., of the plaintiffs." With his plea of the general issue, the defendant filed a notice of special matter, as follows: "Plaintiffs will take notice that on the trial of this case defendant will offer proof to show that the wire fence cut was an illegal obstruction of a public road."

The testimony showed that the road which was obstructed by the fence, and which passed through plaintiffs' land, had been used without objection continuously from twelve to twenty years by defendant and all persons living on his land and by the public and everybody who saw proper to go that way, but it was never laid out and had never been worked by public authority.

Defendant cut the wire fence, and went on the land in question and cut a small tree.

The instruction to which the court, in its opinion, refers is as follows: "No. 1. If the jury believe from the evidence that the road through where Mullins cut the wire has been used by the public for more than ten years, and that this use by the public has been under claim of right to use it, and not used by permission of the owner of the land, then you should find a verdict for the defendant."

The opinion of the court states the further facts necessary for an understanding of the case.

Reversed and remanded.

Ricketts & Peyton, and H. J. Wilson, for appellants.

What, under the laws of the state of Mississippi, is the test which we are to apply to a road in order to determine whether or not it is a public road? Teagarden v. McBean, 33 Miss. 289.

In the present case the road has never been adopted or sanctioned by the board of supervisors, or its predecessor the board of police, as is necessary for the public good. No overseer has been appointed to attend to it, nor hands assigned to work upon it, as required to be done on all public roads. It has never come under the jurisdiction of the tribunal intrusted by the constitution with the care of all public roads. There is consequently no obligation which can be enforced against any one to keep it in repair as a public road--a consideration which has been held, and, we think, justly, to be a correct test of whether a road is public or private and to fix its character as a public road. Smith v. Kinard, 2 Hill (S.C.), 642; State v. Gregg, Ib., 388. See also Annotated Code 1892, § 3887; State v. Morgan, 79 Miss. 659; Craft v. DeSoto County, 79 Miss. 618. The following show some of the definitions of the term "public road" given by the authorities: 23 Am. & Eng. Ency. Law, 458; Elliott on Roads and Streets, sec. 8, p. 8; Elliott on Roads and Streets, sec. 11, p. 10; Kennedy v. Williams, 87 N.C. 6.

Without reference to what has been held in other cases, the present case is so nearly identical in its leading features with the case of Warren County v. Mastronardi, 76 Miss. 276, that it must be taken as stating the principles upon which this case should be decided. Washburn on Easements (4th ed.), 152, 153; Lanier v. Booth, 50 Miss. 410.

In the present case, under the issue presented by the pleadings, the appellee, having elected to defend on the ground that the fence cut was an illegal obstruction of a public road, should not have been permitted to introduce evidence which, if it tended to prove anything, tended to prove a way by necessity; nor should he have been permitted to introduce testimony as to the length of time the alleged road had been used.

We direct the attention of the court to the language used by Peckham, J., in the opinion in People v. Underhill, 144 N.Y. 324; Hamilton v. The Village of Owego, 42 App.Div. (N. Y.), 312; 22 Am. & Eng. Ency. Law 1223, note 12.

R. N. Miller, for appellee.

[The brief of counsel for appellee was withdrawn or lost from the record...