Harper v. State

• Decision Date: 10 April 1896
• Citation: 109 Ala. 66,19 So. 901
• Parties: HARPER v. STATE. [1]
• Court: Alabama Supreme Court

19 So. 901

109 Ala. 66

HARPER v. STATE. ^[1]

Supreme Court of Alabama

April 10, 1896

Appeal from Shelby county court; John S. Leeper, Judge.

William S. Harper was convicted of obstructing a public road, and appeals. Reversed.

The defendant was tried and convicted under the following affidavit: "Before me, H. E. Reynolds, justice of the peace for said county, personally came Emery L. Barber, who being first duty sworn deposes and says that William Harper (alias Will Harper) did obstruct a certain public road in said county known as the 'Cove Road' leading from a point on the Shelby and Calera road about three miles west of Shelby, to a point on the Kellar road near the residence of Mrs. Robert McGibbony, by a fence without leave of the court of county commissioners first had and obtained. Affiant further states on oath that William Harper (alias Will Harper) did obstruct a public road in said county known as the 'Cove Road' leading from the Shelby and Calera road to the Kellar road, by a fence, against the peace and dignity of the state of Alabama." The warrant of arrest issued thereon was made out before a notary public and ex officio justice of the peace of Shelby county, Ala., and was made returnable to the county court. The defendant pleaded to the jurisdiction of the court, on the ground that the act of the general assembly of Alabama, of the session of 1894-1895 (Acts 1894-95, p. 1088), creating and establishing the county court of Shelby county was unconstitutional and void "in that the said act contains more than one distinct subject, viz. one subject for misdemeanors and one subject for felonies." This plea was overruled. Thereupon the defendant demurred to the affidavit and warrant of arrest, on the ground that they were void, because the act creating and establishing the county court of Shelby county confers no authority upon a notary public and ex officio justice of the peace to issue warrants returnable to the Shelby county court; and, second, that said affidavit is insufficient for that it fails to disclose or allege with certainty the road alleged to have been obstructed, and what the obstruction consisted in, and when it was made. The evidence adduced upon the trial of the cause is sufficiently stated in the opinion. The instruction given by the court, to the giving of which the defendant duly excepted, is copied in the opinion. After a long deliberation by the jury, they returned into court for instruction as to the law governing the case, and the court ex mero motu, instructed them as follows: "That the owner of land could not change a road over his own premises when he has permitted the public to use or travel over the same for a term of 20 years, without an order from the commissioners' court, and that the changing of said road from time to time by the owner would not change the public's right over said road, if the jury should believe said change of road was merely for shortening it, or making it more convenient." To the giving of this instruction the defendant duly excepted.

W. T Johnson, for appellant.

W. C Fitts, Atty. Gen., for the State.

HARALSON J.

The question as to the constitutionality of the act of 1895 (Acts 1894-95, p. 1088) was considered and settled in the case of Harper v. State (at the present term) 19 So. 857, where it was held that said act was constitutional as to the trial of misdemeanors by said county court.

There is nothing in the point that the affidavit on which the defendant was arrested, was made before, and the warrant for his arrest,-returnable to the county court,-was issued by a notary public and ex officio justice of the peace. Section 3 of said act authorizes prosecutions to be commenced before any judicial officers of said county, and warrants to be issued by them returnable to said county court. Notaries public, with powers of justices of the peace, are judicial officers in this state. Code, §§ 646, 1118.

The material question in the case is, whether the road, the defendant is charged with obstructing, is a public road within the meaning of the statute, as contradistinguished from a private way. "A public highway is one under the control and kept up by the public, and must be either established in a regular proceeding for that purpose, or be generally used by the public for that purpose for 20 years or dedicated by the owner of the soil and accepted by the proper authorities." Kennedy v. Williams, 87 N.C. 6; McDade v. State, 95 Ala. 30, 11 So. 375. The uses must be adverse to, not merely permissive by the owner of the soil, and continuous and uninterrupted for the period prescribed. As has been said, "when the use of a way has been...