Howard v. State

• Decision Date: 20 November 1886
• Citation: 2 S.W. 331
• Parties: HOWARD and another <I>v.</I> STATE. (Two Cases.)
• Court: Arkansas Supreme Court

2 S.W. 331

HOWARD and anotherv.

STATE. (Two Cases.)

Supreme Court of Arkansas.

November 20, 1886.

Appeals from circuit court, Lonoke county.

Indictments for obstructing a public highway. Judgment for the state. Defendants appeal.

J. C. & C. W. England and Sam W. Williams, for appellants. D. W. Jones, Atty. Gen., for the State.

COCKRILL, C. J.

These two cases have been argued and submitted together. They are prosecutions for obstructing a public highway. The indictment in the second case charges that the highway obstructed was established by the order of the county court. In the first case the indictment contains two counts, one corresponding with the indictment in the other case, except as to the time of the commission of the offense, and the other charging that the road obstructed was a highway by common law; the indictment specifying that it was intended to charge but one offense. The defendants were convicted in both cases, but the conviction in the second case was under the common-law count. The obstruction consisted of the erection of wire fences across the road. The evidence was the same in both cases, and, for convenience, they have been argued as though there had been a separate conviction under each count of the second indictment, as under the old practice several misdemeanors could be joined in an indictment, and it is convenient to treat the cases as counsel have done. Obstructing the road was admitted, but it is claimed the state failed to prove that the road was a public highway. It was of course necessary that this should be done to warrant a conviction in either case.

1. Under the common-law count the state undertook to prove the public character of the road by evidence of public user for a great number of years; one of the witnesses, who was 30 odd years of age, testifying that he had lived upon the road-side all his life, and that from his earliest recollection it had been used by the public as a highway. It is argued, however, in the outset, that there can be no conviction in this state for obstructing any highway that is not a statutory road. But the statutes in regard to highways do not negative rights which may have been previously or subsequently acquired by the public, and they are not to be construed as doing away with the modes of establishing the existence of public roads recognized by the common law, or of abolishing the common-law procedure against one for placing obstructions in them of such a character as to be a common or public nuisance. State v. Holman, 29 Ark. 58; Bish. St. Crimes, § 164; 2 Greenl. Ev. § 662; Day v. Allender, 22 Md. 511.

The jury found that the road was a public highway by virtue of long-continued use; and, as the finding was upon discordant testimony, it cannot be disturbed for the want of evidence to sustain it, if the court gave them, in its charge, the proper guidance for reaching a conclusion.

The charge of the court on the question of user was as follows: "To establish a highway by prescription, there must be an actual public use, general, uninterrupted, and continuous, under a claim of right, for a period of seven years; and this, though the public travel may have slightly deviated from the originally established route by reason of any obstacle that may have been placed in said route, provided the owner of the soil acquiesced in the claim of the public rightfully to enjoy such privilege. The occasional use of the highway by the public, without objection on the part of the owner, will not of itself constitute a common highway."

The appellants presented a written prayer for a charge to the jury substantially the same as the above, except that in place of "seven" it substituted "twenty" years as the period of public use to establish a highway. The court inserted "seven" in the place of "twenty," and gave the instruction as modified. Giving the instruction set forth, and refusing the other as asked, is assigned as error.

The question as to what use by the public will convert a road into a common highway is one upon which there is great diversity of opinion. Some of the adjudged cases deny that prescription has any application to highways at all; and others, while conceding that highways may derive a lawful existence from long-continued use by the public, under a claim of right, hold that use alone for any time, however long, of uninclosed prairie or timber land, cannot make a highway. The cases which agree that a highway may be established by user over any land, whether wild or improved, differ as to the effect of the public user, and as to the length of time within which such use, with the acquiescence of the owner, shall have the effect of creating a highway. A review of the decisions, or even a statement of the leading reasons given for the several classes of cases, would be of little practical utility. Nothing can be added to the learning on that subject at this day. Some of the mooted questions were determined by this court in the case of Johnson v. Lewis, ante, 329, but the determination of the question of time now under consideration was expressly waived; attention being called to the fact that incorporeal hereditaments are not within the terms of, or, in other words, are not named in, the statute of limitations governing real actions. The tendency of the American courts, however, to conform to the period fixed by the statute, by analogy, is pointed out by the learned judge who delivered the opinion. Referring the curious to the text writers, and the cases there cited, for arguments and discussion of the question, we are prepared (using the language of Judge DILLON in speaking for the court in Onstott v. Murray, 22 Iowa, 457) to say that, "if the public, certainly where this is with the knowledge of the owner, has claimed and continuously exercised the right of using land for a public highway, for a period equal to that fixed by the statute for bringing actions of ejectment, their right to the highway, as against such owner, is complete, there being no proof that the road was so used by leave, favor, or mistake."

As seven years is the period that bars ejectment, we hold that the charge was right upon that point.

The only other objection the appellants have urged to the charge is that the jury are told, in effect, that a dedication may be presumed from use, notwithstanding the public travel may have deviated at points from the old route. The obstacles which changed the course of travel were two fences, which had been put across the road by other parties a few years before the indictments. Travel had been deflected from the original road-bed just far enough to escape the obstacle, the old road being resumed after a passage around the inclosure. But there was evidence to the effect that the road was the prairie route between two towns, and that no part of the old route was ever abandoned, except that embraced in the inclosure, and the obstruction now complained of was not on that part of the road. This objection to the instruction is not well grounded. Wyman v. State, 13 Wis. 663, 668.

2. Several objections are urged against the conviction under the indictment, based upon the statute. In order to prove the public character of the road in this case, the state showed that it had been long used as a public road in the manner already adverted to, and that the county court had recognized it as such by making it a part of the road-district described in the indictment, and appointing an overseer to work it, prior to and in the year the defendants had obstructed it. This was, at least, a prima...