McCracken v. State

• Decision Date: 06 December 1920
• Docket Number: 30
• Citation: 227 S.W. 8,146 Ark. 300
• Parties: MCCRACKEN v. STATE
• Court: Arkansas Supreme Court

227 S.W. 8

MCCRACKEN v. STATE

146 Ark. 300

No. 30

Supreme Court of Arkansas

December 6, 1920

Appeal from Marion Circuit Court; J. M. Shinn, Judge; judgment modified.

Judgment affirmed. Rehearing denied.

Williams & Seawel, for appellant.

1. The evidence wholly fails to establish that the road obstructed was a public road by prescription. It was not established by any order of the county court. If a public road, it was such solely by prescription. The ferry was a private enterprise and could be abandoned at any time by the owner. The owner had no right to make a landing there against the wish or consent of the appellant or his predecessor in title. 84 Ark 21-27. The use of the road was permissive and not adverse. 7 Metc. (Mass.) 33; 39 Am. Dec. 754. The owner did not consent to the user of his land as of right, and the user by permission was not adverse and no basis for prescription, and it makes no difference how long such permissive user continued. 37 Cyc. 27; 19 C. J. 887, § 53 (d); 50 Ark 53; 47 Id. 431; 83 Id. 236; 60 N.E. 915; 55 Id. 953. Upon breach of the agreement by which the license was acquired, appellant had the right to revoke it and close the road in any manner he saw fit. 19 C. J. 887; 73 Ark. 296; 64 Id. 339; 88 Id. 248.

2. If the evidence is sufficient to establish the obstruction of a road established by prescription, still the court erred in the admission and rejection of testimony connected with the trial and in its refusal to exclude certain evidence relating to another road after the State's election to exclude its consideration from the prosecution. It was error to admit the letter from J. H. Black to Ed. Gilbert and in stating in the presence and hearing of the jury that the testimony with reference to the road which defendant was charged with obstructing was not material, so far as same tended to establish that said road was opened over lands owned by defendant through a contract agreement to establish a ferry and ferry privileges. It was also error to permit Cal. Hogan and George Billings to detail a quarrel between appellant and said Hogan in regard to the obstruction across the road not in controversy. It was irrelevant and immaterial and prejudicial. 67 Ark. 594; 69 Id. 134.

3. The court erred in its instructions given and in refusing those asked by appellant. No. 2 is misleading and does not state the law. 88 Ark. 20, 28. No. 1 directed a verdict for the State, which was error, and the same defect is in No. 3 and should not have been given. 82 Ark. 503. The court has no discretion to withhold instructions appropriate to any theory of the case sustained by competent evidence, and it was error to refuse the instructions asked by appellant. 50 Ark. 545; 92 Id. 71; 99 Id. 265, 283.

4. There was no evidence authorizing the court in directing the jury to fix any penalty for an obstruction to the road for which the State elected to prosecute appellant. The prosecution was under Kirby's Digest, § 1758, and a penalty did not accrue until after the party was notified by the overseer to remove the obstruction. 54 Ark. 354; 82 Id. 131.

5. If there was evidence sufficient to authorize the court to direct the jury to fix a penalty in case of conviction, still it was not of such nature as to warrant the fixing of a definite period of time for its operation. The question of time should have been left to a jury.

John D. Arbuckle, Attorney General, and Silas W. Rogers, Assistant, for appellee.

1. The evidence shows that this was a public highway by prescription and the evidence warrants a conviction.

2. The objections to the testimony are not well taken. Where a highway is established by prescription it matters not if same has slightly deviated from the original track by reason of an obstruction placed across the road. 47 Ark. 431.

MCCULLOCH, C. J. HART, J., dissenting. Judge WOOD concurs in this dissent.

OPINION

MCCULLOCH, C. J.

This prosecution was begun against appellant before a justice of the peace of Marion County on information filed by the prosecuting attorney, charging the offense of obstructing a certain public highway. The charge is that appellant did obstruct "the public road which extends from Oakland to Flippin by then and there felling trees and building fences across said public road at and near Pace's Ferry on the north or left bank of White River."

Appellant was convicted in the trial before the justice of the peace, and on the trial anew in the circuit court he was again convicted. At the point where the offense is charged to have been committed, White River flows in an easterly or slightly southeasterly direction. Appellant and his brother own a farm on the north or left bank of the river where there is a ferry known as Pace's Ferry, which has been maintained there for the past thirty years or longer. It was formerly operated by means of oars and poles, but during the year 1902 it was changed to a cable ferry. The public road runs toward the ferry between appellant's farm and a farm known as the Anglin place. Formerly the road running immediately to the ferry was several hundred yards further west than the present ferry landing, where the cable is attached, but when the cable was installed, the ferry owner made arrangements with appellant's mother, who then owned the land, to permit travel over the land to the landing place then being established. The ferry owner agreed to allow the landowner free ferriage for the privilege of letting the public use the road to the ferry. At that time the road traveled from the ferry landing to the mouth of the lane between appellant's land and the Anglin place, a distance of about 150 yards, ran west, close to the river, under what the witnesses call "the bank," and up over the bank to the mouth of the lane. The road under the bank was frequently muddy and impassable, and in the year 1911 the ferry owner obtained permission from appellant to open a way or road for public use in getting to and from the ferry by going straight over the bank from the ferry landing and thence along the bank to the mouth of the lane. The two roads--the old one and the new--were about thirty feet apart. The testimony adduced by the State tended to show that both of those roads had been continuously used by the public since the respective dates of the permission given by the landowners, and the contention on the part of the prosecution is that the public acquired a right of prescription to use the roads and that in that way they became public highways. It is not correct to say that there were two roads, for there was in fact only one road, but there were two branches of it for the short distance from the mouth of the lane to the ferry landing.

Early in the year 1920, appellant got into a controversy with the ferryman about compliance with the agreement for free ferriage and decided to stop up both of the approaches to the ferry. He built a wire fence across the old road below the bank and felled trees across that road, and he built a fence and a gate across what is termed the new road up the bank from the ferry landing. The road overseer demanded the removal of the obstruction, which demand was refused, and this prosecution was then begun.

During the progress of the trial, appellant's counsel made a motion that the State be required to elect which of the obstructions would be relied on as constituting the offense, and there was an election made by the prosecuting attorney to base the prosecution on the obstruction across the old road under the bank.

It was expressly agreed by appellant's counsel that the only issue of fact involved in the trial was whether or not the road was a public road.

The first contention is that there is no evidence that the road obstructed was a public highway. The testimony introduced by the State tended to establish the fact, as before stated that the public used the road continuously for more than seven years, down to the time it was obstructed by appellant, but it is insisted that the use was merely permissive and was conditioned on the promise of the ferryman to give free passage to the landowner. Counsel argue that the use of the way to the ferry was a mere license granted to the owner of the ferry in consideration of free ferriage being afforded to the landowner, and that the license could be withdrawn, and was so withdrawn, on the failure of consideration. Conceding that such was the effect of the grant, so far as concerns the rights of the ferry owner, it does not follow that the public has not gained a permanent and irrevocable right-of-way by continued use for the statutory period of limitation. This court in Howard v. State, 47 Ark. 431, 2 S.W. 331, announced the following rule with reference to the establishment of a public highway by prescription: "A road becomes established as a public highway by prescription, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public...