Patton v. State

• Decision Date: 10 December 1887
• Citation: Patton v. State, 6 S.W. 227, 50 Ark. 53 (Ark. 1887)
• Parties: PATTON v. STATE
• Court: Arkansas Supreme Court

6 S.W. 227

50 Ark. 53

PATTON v. STATE

Supreme Court of Arkansas

December 10, 1887

APPEAL from Washington Circuit Court, J. M. PITTMAN, Judge.

Judgment affirmed.

L Gregg, for appellant.

1.The indictment fails to allege in what district the road was, its terminal points, or in what part of the county it is.

It attempts to charge two offenses in one count, obstructing and procuring obstructions put in it.It fails to charge that the obstructions were a nuisance, or annoyance to the public.29 Ark. 58;13 Id., 405.

2.The public could not abandon a road regularly laid out because a trespasser had fenced it up, and acquire a right in the lands of an adjacent owner, and especially so when the owner had no knowledge that the public was wandering on his wild lands.47 Iowa 611;90 Ill. 581.

3.There was no such adverse possession as will confer title on the plea of seven years limitation.Such possession must have been open, notorious, continuous, exclusive, hostile, and be accompanied by an intent to hold adversely, and in derogation of the rights of the owner, 43 Ark. 486;42 Id., 120; the public could not acquire the right by prescription, 94 N.C 487;35 Kan. 717;98 Pa. 170; 42. Am. Rep., 614;11 Ill.App 513;12 Id., 390.

4.There must be an adverse holding with the knowledge of the owner, or his acquiescence.47 Ark. 431;42 Id., 121;Sedg. & Wait, Trial of Title, &c., sec. 749-751;Angel on Lien, 6th Ed., 388;15 Ill. 192; Rapalgi & Lawrence Law Dict., "Acquiescence."

Dan, W. Jones, Attorney General, for appellee.

The indictment is substantially in the language of the statute.Mansf.Dig., sec. 1865.This is sufficient.35 Ark. 414; 39 Id., 216;Moose v. State,49 Ark.

The indictment charges an offense within the jurisdiction of the court, and the motion in arrest was properly overruled.Mansf.Dig., sec. 2302.

Even if the indictment were defective for uncertainty in describing the locality of the obstruction that is cured by the verdict, the appellant having gone to trial without objection to the indictment.

The record shows the road to have been laid out and worked for forty years, overseers appointed, &c., and that the road at the point obstructed has been used by the public as a highway for more than seven years.47 Ark. 433, and cases cited.

OPINION

BATTLE, J.

The appellant was indicted in the Washington circuit court for obstructing a public road.It is charged in the indictment that appellant, in the county of Washington and State of Arkansas, on the 10th of April, 1886, "unlawfully obstructed the Fayetteville and War Eagle road by then and there placing and causing to be placed in said road a ditch and a fence, said road being then and there a public highway in said county."

The parties, by consent, waived a jury and submitted the law and facts to the court.On trial it was proven that many years ago the road leaving the Missouri road two and a half or three miles from Fayetteville and running out on War Eagle Creek and to the county line was, by the county court of Washington county, declared to be a public highway and denominated "the War Eagle Road;" and for more than fifteen years the same has been laid off into road districts, and overseers for each district so laid off, for each second year, have been appointed by the county court.The road originally ran diagonally through the north-west quarter of section sixteen, in township seventeen north, and in range twenty-nine west, entering at the south-west corner and going out at the north-east corner.In 1856, Wilson Eidson who then owned this tract of land, under and in pursuance of an order of the county court, changed the road, beginning where it entered the north-west quarter of section sixteen and running the same north on the same quarter of a section to the north-west corner thereof, and thence east on the same tract to the north-east corner thereof.After the close of the late war between the States, the owner of this tract of land enclosed a large part of the road on the west boundary of his land by a rail fence, which ran in some places within five or six feet of the line between sections sixteen and seventeen; and thereafter public travel was wholly diverted from the part of the old roadway so enclosed to the west side of the rail fence, and a new road was beaten out, and a large part of it was made, by public travel, west of the section line and on the north-east quarter of section seventeen in the same township and range, in the general direction of the part of the old road enclosed by the rail fence, falling into the old road at each extremity.Public travel continued over this new roadway for more than seven years, and the overseers appointed on the War Eagle road caused it to be worked until it was closed up and obstructed as hereinafter stated.

Isaac Patton was the owner of the north-east quarter of section seventeen, in 1859, and so continued until some time during the late war, when he died, leaving a widow, and the defendant and others his heirs at law.The widow and heirs, except the defendant, were, and at all times since the close of the war have been, non-residents of this state.The defendant acquired all their respective interests in the land of Isaac Patton.He knew nothing of the road made on the land purchased by him, he being a resident of Little Rock, until some time in September, 1885.In the fall of 1885, and in the spring of 1886, he made a ditch and wire fence parallel to and within three feet and west of the section line, and in the road made by the public on his land, as it then ran, and had run for more than seven years before; and at some places left only from eight to twelve feet between his wire fence and ditch and the rail fence on the opposite side of the section line; and thereby rendered public travel difficult; and this was the obstruction charged in the indictment to have been made by the defendant.

The court found the defendant guilty in the manner and form charged in the indictment; fixed his punishment at a fine of ten dollars; rendered judgment against him; and he filed a motion for arrest of judgment and new trial, which were denied, and, saving exceptions, appealed.

It is contended by appellant that the indictment is fatally defective, because it does not show the district in which the road was obstructed as charged, its terminal points, or in what part of the county it lies.The description of the road obstructed given in the indictment is, "The Fayetteville and War Eagle Road."By this designation it is clear that the road meant or referred to was the road leading from Fayetteville to or on War Eagle.In State v. Lemay,13 Ark. 405, this court sustained an indictment for obstructing a public road, which described the road obstructed as the road "leading from Lewisville to Minden and Camden."The description of the road in the indictment in this case is as certain as that in the Lemay case, and is sufficient.

It is insisted by appellant that the way travelled by the public over his land was not a public highway and no part of the road for the obstruction of which he was indicted, and that he was not indictable for making the wire fence and ditch in it and thereby obstructing public travel.

It is not absolutely necessary to establish a public highway that its boundary lines be surveyed and that it be opened and appropriated to public use, under an order of the county court.It can be established by a dedication on the part of the owner of the soil over which it runs, and the assent thereto and use thereof by the public, or by prescription.

Hobbs v. The Inhabitants of Lowell,36 Mass. 405, 19 Pick 405, was an "action on the case, to recover damages for an injury sustained by the plaintiff, by reason of a defect in a highway in the town [now city] of Lowell, called 'M'errimac street.'At the trial, before Morton, J., it appeared that there was an ancient county road leading through that part of Chelms-ford which now constitutes Lowell, and thence through Tyngsborough to Dunstable.In 1822 that road was stopped up by an impassable canal, fences, and dwelling houses, erected and made by a corporation called 'The Proprietors of Locks and Canals on Merrimac River,' and the travel on it entirely prevented.At the same time Merrimac street was opened by the same corporation, in the general direction of the old road, passing over the canal by a bridge, and falling into the old road at each extremity.From that time the travel was wholly diverted into this street, which was to appearance a part of the same county road, and all traces of the old road were obliterated.The town of Lowell was incorporated in 1826.In 1827 the selectmen of the town directed, generally, that guide posts should be set up in such places as required them, and pursuant to that direction, one of the selectmen set a guide-post at the corner of Central street and Merrimac street, directing on the latter street to Tynsboro and Dunstable.On M'errimac street were a church and parsonage, leased to a...