Commonwealth v. Kelly

• Decision Date: 17 December 1851
• Citation: 49 Va. 632
• Parties: COMMONWEALTH v. KELLY.
• Court: Virginia Supreme Court

49 Va. 632

COMMONWEALTH v. KELLY.

General Court of Virginia.

December 17, 1851

1. The mere user of a road bye the public for however long a time will not constitute it a public road.

2. A mere permission to the public, by the owner of land, to pass over a road upon it, is, without more, to be regarded as a license; and revocable at the pleasure of the owner.

3. A road dedicated to the public must be accepted by the County court upon its records, before it can be a public road.

4. If a County court lays off a road before used, into precincts, or appoints an overseer or surveyor for it, thereby claiming the road as a public road; and if after notice of such claim the owner of the soil permits the road to be passed over for any long time the road may be well inferred to be a public road.

OPINION

Leigh J.

At the Circuit court of law and chancery held for the county of Culpeper on the 4th of June 1849, John P. Kelly was indicted for erecting and placing a gate and gate posts across a public road and highway in the county of Culpeper. The defendant pleaded not guilty; and the jury rendered a verdict against him.

The facts proved on the trial were, that there was no record establishing the road as a public road and highway, nor was there any record that the County court regarded the road as a public one, either by laying it off into precincts, by appointing surveyors of it or otherwise: on the contrary there was parol evidence which proved that no surveyor of the road had ever been appointed, and that the road had never been worked upon by any hands, public or private, but on one occasion, when a certain Staunton Slaughter, on the part of the road which run through his land, with his own hands worked on the road at a steep hill near his mill; and placed some saw mill slabs in a wet place in the road. That the road had existed for forty or fifty years, but that the owners of the soil through which it was conducted down to a period of about twenty-five years before the obstruction mentioned in the indictment, at their will and pleasure, changed the road but that there had been no such change for between twenty and twenty-five years before the obstruction by the defendant. And it was proved that there was no reason to believe that any of the records of the County court of Culpeper had been lost or destroyed. This being the evidence, the defendant asked the Court to instruct the jury, first, that they ought to find for the defendant on account of the absence of record evidence that the road had been accepted by the County court or by the county; 2dly, that they ought to find for the defendant, unless there was something in the evidence besides the mere use of the road by individuals, no matter how general, to satisfy them that it had been accepted by the County court or by the county as a public road; and 3dly, that they ought to find for the defendant, unless they were satisfied by the evidence that the road had been dedicated by the owners of the soil to the public use as a highway, and had been accepted as a highway by the general public of the county, and not by the local public only of a small neighbourhood around it. The Court refused to give these instructions; but instructed the jury, that a road to become a highway by dedication and long use must have been accepted by competent authority; of which dedication and acceptance they were to judge from all the circumstances before them. The defendant excepted to the opinion of the Court for refusing to give the instructions asked for, and for the instruction given to the jury.

At first the Court rendered a judgment against the defendant for the fine assessed against him, but subsequently on the motion of the defendant to award him a new trial, set aside the judgment and adjourned the motion to this Court.

The question adjourned is an important one, since to decide it it may be necessary to consider whether from user alone both a dedication and acceptance may be inferred. This question does not seem to have been directly submitted to this Court; nor have we met with a case in which the question has been before the Court of appeals. In Brander v. The Justices of Chesterfield, 5 Call 548, Judges Tucker and Roane expressed opinions that...