City of Columbus v. Payne

• Decision Date: 28 October 1929
• Docket Number: 27991
• Citation: 155 Miss. 170,124 So. 269
• Court: Mississippi Supreme Court
• Parties: CITY OF COLUMBUS v. PAYNE et al

124 So. 269

155 Miss. 170

CITY OF COLUMBUS v. PAYNE et al

No. 27991

Supreme Court of Mississippi

October 28, 1929

Division B

Suggestion of Error Overruled Nov. 25, 1929.

APPEAL from circuit court of Lowndes county, HON. J. I. STURDIVANT Judge.

Action between the city of Columbus and Robert Gardner Payne and others. From the judgment, the former appeals. Reversed and remanded.

Reversed and remanded.

Frierson & Weaver, of Columbus, for appellant.

A limited use by the public of an alley and the fact that the city maintained electric lights and used the alley for removing garbage did not make the city liable for maintenance of said alley as a public street.

Athey v. T. C. I. & R. R. Co. and the city of Birmingham (Ala.), 68. So. 154; Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 773.

Stribling & Fraker, of Columbus, for appellee.

Dedication is not required to be made by deed or writing. The intent is its vital principal, and the dedication may be made in every conceivable way that such intention may manifest.

Chattahoochie & G. R. Co. v. Pilcher, 51 So. 11 (Ala.); Reynolds v. Lawrence, 40 So. 576 (Ala.); Benton v. The City of Danville, 93 Va. 200, 24 S.E. 830.

A street may exist so as to render the municipality liable for defects therein, though not condemned for public use by legal proceedings, nor established by prescription. The acceptance of a public street may be implied from general and long continued use by the public as of right.

Benton v. City of St. Louis, 217 Mo. 687, 129 A. S. R. 561.

Subsequent repairs by the city after accident is competent evidence that the city recognized the locus as a public street.

Benton v. City of St. Louis, 217 Mo. 687, 129 A. S. R. 561; Osage City v. Larkin, 40 Kans. 206, 10 A. S. R. 186.

A peremptory instruction should be refused when the evidence bearing on the issue is conflicting.

Birchett v. Hundermark, 110 So. 237; Campbell v. Gulf M. & N. R. Co., 89 So. 1; Wynnegar v. Southwestern Co., 83 So. 3; Jones v. Knotts, 70 So. 701.

OPINION

Griffith, J.

A thoroughfare, whether it be a road or a street or an alley in order to be considered in law as a public way so as to charge the local authorities with the duty of maintenance, must have been accepted as such by the legally constituted authorities of or for the political subdivision of the state sought, in the particular case, to be charged with neglect. Acceptance may be formal or it may be implied, but it is settled in our state that mere user by the public, without more, is not sufficient to constitute an implied acceptance. And in the case at bar user, in a limited way, by members of the public is the utmost extent of the evidence, save that it is shown that far back in the recesses of the so-called alley the city has maintained an electric light, and that at regular intervals the city employees have entered therein on foot to remove garbage. But these are functions that are to be ascribed to the duties of police and of public health, not to that of...