Howard v. State

• Decision Date: 20 November 1886
• Citation: 2 S.W. 331,47 Ark. 431
• Parties: HOWARD v. STATE. AND HOWARD v. STATE
• Court: Arkansas Supreme Court

2 S.W. 331

47 Ark. 431

HOWARD v. STATE. AND HOWARD v. STATE

Supreme Court of Arkansas

November 20, 1886

APPEAL from Lonoke Circuit Court, Hon. F. T. VAUGHAN, Judge.

Judgment affirmed.

Sam W Williams for Appellants.

No statutory road was established, first, because there was no appropriation for the public use of any specified land, by defining it, valuing and paying for it. Private property cannot be taken in this high-handed manner without compensation. The instruction of the court on this point was erroneous and misleading. The securing or payment of compensation to land owners is jurisdictional. See 20 Ark 561; 13 Id., 355.

The seven years statute of limitations applicable to real estate does not apply to incorporeal hereditaments. The right to the public by user could only be acquired by twenty years continued, unchanged, uninterrupted use, over the same path with the consent and knowledge of the owner. Johnson & Bissell v. Lewis, Mss.

Courts of equity always enjoin opening highways in advance of compensation. High. on Inj., sec. 391. Where a statute provides a particular mode of proceeding in rem, that mode must be followed strictly or the judgment is void ab initio, because rendered without jurisdiction. 4 Wait's Act. & Def., p., 188; Freeman on Judg. , 606; 4 H. of L. Cas., 414.

Compensation is prerequisite, a condition precedent to the right to the soil, otherwise the owner may reject it. 31 Ark. 494. And the county court has no right to open a road, until the assessment and payment of the owner's damages.

Jno. C. & C. W. England for Appellants.

In this state there is no such thing as a highway by prescription. All roads must be established by order of the county court, after due notice, in the manner prescribed by statute.

The court erred in refusing to allow the witnesses to testify as to the manner the road was laid out, opened, etc. The statute requires notice to be given to the owners of the soil, etc., and that damages shall be estimated, etc. Sec. 5930 et seq., Mansf. Dig. It is only in this way the courts get jurisdiction. Ib., secs. 5933. The court erred in admitting the record order establishing this as a road district, for it was established by evidence that this road had never been viewed, located, staked out, or in any way designated. The order of the county was inadmissible because of uncertainty. No one could lay out this road from the description given. Nor could any one tell when he was obstructing it.

This was not a common law road. It was never dedicated by the owner to the public use, or accepted by the public, nor had the public acquired the absolute right by long usage. Thomp. Highw., 62.

Review the testimony and contend that appellants would not have been convicted, were it not for the erroneous instruction of the court, that seven years was the period of limitation. That twenty years is the period, see Thompson on High., pp. 53-62; Wait's Act. & Def., 716, sec. 8; 22 Ala. 190; 19 Barb. 179; 22 Md. 526; 23 Wis. 548.

Dan W. Jones, Attorney General, for Appellee.

There are but two questions really in the case.

1. Can the public obtain a title to the road by prescription?

2. Did the court err in permitting the state to read to the jury the record of the county court establishing the road district and in disallowing the appellants to question the regularity of the proceedings of the said county court?

The period of prescription is made by analogy seven years. 3 Washb. Rl. Pro., 449; Sibley v. Ellis, 11 Gray, 417; Washb. Eas., sec. 4, pp. 111-12; Parker v. Foote, 19 Wen., 309; Curtis v. Keesler, 14 Barb. 511; Caper v. Smith, 19 Serg. & Rawl. , 26;Tracy v. Atherton, 36 Ver., 503.

A dedication to the public is more readily presumed than a grant to an individual. 27 Ver., 265.

The appellants do not dispute that the public can obtain a prescription right. It was not necessary that the exact spots. of ground should be trodden all the time. Elkin v. State 2 Humph., 543.

The county court being one of record the regularity of its proceedings is presumed. Pierce v. Edington, 38 Ark. 151. Certainly it would have been highly improper to have collaterally retried the questions which had been before the county court some years prior. The appellants should have taken some direct legal steps for vacating the road instead of forcibly preventing the overseer from working it. Draper v. Mackey 35 Ark. 497.

An order of the county court appointing an overseer for a particular part of the road is evidence that during the appointment the road is a public road. State v. Moore, 23 Ark. 550; State v. Hagood, Ib., 553.

Sec. 5927, Mansf. Dig., was enacted for the benefit of those who had no title to a road and wish to open one. So here the public having a right by prescription, it was really immaterial whether the action of the county court was regular or not; it was merely confirmatory of that title, but at the same time became record evidence of the claims of the public.

The instructions given, taken altogether, were unusually clear, and were fair to the appellants in every particular.

OPINION

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, 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.

I. 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 thirty odd years of age, testifying that he had lived upon the roadside 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 a 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. Stat. Cr., sec. 164;2 Greenl. Ev., sec. 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, 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 anytime, 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 et al. v. Lewis, ante p. 66, but the determination of the question of time now under consideration was expressly waived,...