Cross v. State

• Decision Date: 30 June 1906
• Citation: 147 Ala. 125,41 So. 875
• Parties: CROSS v. STATE.
• Court: Alabama Supreme Court

41 So. 875

147 Ala. 125

CROSS v. STATE.

Supreme Court of Alabama

June 30, 1906

Appeal from City Court of Bessemer; William Jackson, Judge.

"To be officially reported."

Z. Cross was convicted of trespass after warning, and he appeals. Affirmed.

The prosecution was begun by warrant and affidavit. The facts sufficiently appear in the opinion. The court in its oral charge said: "Evidence upon the part of the state shows defendant on the 8th day of August passing along on the property of Vandeford." There was objection to this statement. Further charging the jury orally, the court said "I charge you as a matter of law that there are only three ways in Alabama to establish a public road; that one is by board of revenue or county commissioners, one by dedication, and one by prescription. A public road must be a road even authorized by board of revenue or county commissioners and authorize the board of revenue or county commissioners the law requires and application must be made to the board or commissioners. Such application must be made by petition and at least 30 days' notice of the intended application must be given by advertisement at the courthouse door and at three other places in the county, two of which should be in the immediate neighborhood of the place where road is to be established. The court must then issue a notice to seven disinterested householders of the county to view out the road and mark out the route for such proposed road and assess the value of the lands of the landowners; then mark out the route of the road and return their report to the court under oath, and a day is set for the hearing of the same; or a public road may be dedicated by the owner of the land through which it passes; or by prescription--prescription is the claim or title to the land or road by virtue of immemorial use or enjoyment--the right of title acquired by possession during the time and in the manner fixed by law." Further charging the jury orally the court said: "I charge you, regarding the United States statute law, that the statute only gives permission and it is only permission by the government, to enter on public land to establish a highway; but before it becomes a public road the state law would have to be applied, and before it could become a public road the state authorities would have to take hold of it and make it a public road according to the law of the state." The jury retired and returned and stated to the court that they desired instructions on one point in the case--if the continued use of the road 20 years or more by the people would make it a public highway over the public land. The court replied "I charge you as a matter of law that under the United States statute a road used for 20 years or more while the land belonging to the government or was a part of our public domain would not make it a public road, unless it was made so by the laws of Alabama, and that it must be established by the laws of the state of Alabama and authorized in this way or it could not be a public road." Exceptions were reserved by the defendant to all these instructions. At the request of the state, the court gave the following written charge: "The court charges the jury that under the undisputed evidence in this case they should convict the defendant, unless they are reasonably satisfied that he had a legal cause or good excuse for entering upon the premises of Vandeford at the time for which he is prosecuted." A number of charges were requested by the defendant, and refused, which are not necessary here to be set out.

Pinkney Scott, for appellant.

Massey Wilson, Atty. Gen., for the State.

DOWDELL J.

The prosecution in this case was commenced on affidavit and warrant, in which the defendant was charged with trespass after warning. The evidence without dispute showed that the prosecutor, Vandeford, was the owner and in possession of the land at the time of the alleged trespass, and that he had warned the defendant prior to the alleged trespass and within six months not to go upon the land. The land was entered by the prosecutor as a homestead, the same being government land, six years prior to the alleged trespass, and the prosecutor had built upon and improved the same and perfected his right of entry in 1904. While the land was yet government land, a roadway traversed the same, which had been used and traveled by the people of the...