Rylee v. State

• Decision Date: 17 November 1913
• Docket Number: 16,843
• Citation: 63 So. 342,106 Miss. 123
• Court: Mississippi Supreme Court
• Parties: THOMAS RYLEE v. STATE

63 So. 342

106 Miss. 123

THOMAS RYLEE v. STATE

No. 16,843

Supreme Court of Mississippi

November 17, 1913

APPEAL from the circuit court of Marshall county, HON. H. K. MAHON Judge.

Thomas Rylee was convicted of obstructing a public highway and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Lester G. Fant, attorney for appellant.

Mayes &amp Mayes, attorneys for appellee.

OPINION

REED J.

Appellant was convicted on a charge of obstructing a public highway in Benton county. He contends in his defense (1) that the road traveled by the public at the point where obstructed had been shifted from time to time, so that now it was not in its original location, but was through his land, and that, being on his land, and not in its proper place, he had a right to build a fence across it; (2) that the road was not laid out and established in accordance with the provisions of the statute.

The facts relating to the first contention were properly submitted to the jury, and the verdict of conviction resolved them against appellant. As to the second contention, counsel for appellant in his brief states his position in the following language: "There can be no prosecution, unless the road obstructed was really and truly a public highway, laid out in the letter and spirit of the provisions of the Code. We rest our case on this fact."

We understand appellant maintains that there can be no conviction for obstructing a public road, unless such road has been laid out and established in strict accordance with the provisions of the Code. The highway in question is know as the "Holly Springs and New Albany road." It has been in existence and in use for a long number of years. In fact, a road by this name is shown to have existed long prior to the Civil War. Benton county was created by an act of the legislature in 1870. The road was then well known and generally used by the public.

The minutes of the board of supervisors of Benton county, under dates of July 28, 1870, and August 1, 1870, show the organization of the new county. The minutes show that on August 2, 1870, the following order was passed by the board: "Ordered that the Holly Springs and New Albany road be established within the limits of Benton county." And on August 16, 1870: "Ordered that Cosby Hudson be appointed overseer on the Holly Springs and New Albany road from old Tippah line to Marshall county line, with hands, in their lawful bounds." The record shows that overseers have been appointed for the Holly Springs and New Albany road and persons assigned to work thereon. The road continued to be generally used by the public until the time of its obstruction.

It seems to be well settled that a highway may be created by prescription or by dedication, as well as by being laid out and established in accordance with statutory provisions. In his work on Roads and Streets (3 Ed.), volume 1, paragraph 3, Judge ELLIOTT says, referring to the establishment of a highway, that "the mode of its creation does not of itself invariably determine its character, for this, in general, is determined by the rights which the public have in it." In American & English Ency. of Law (2 Ed.), volume 15, page 494, we find the following regarding the mode of creation of highways: "Provided the road is a highway, the mode in which it became such is immaterial, and consequently there may, in the absence of a statutory limitation, be an obstruction of a highway by prescription or by dedication, provided the dedication has been accepted." It has been decided that a highway may be established by immemorial usage. Reed v. Northfield, 13 Pick. (Mass.) 94, 23 Am. Dec. 662; State v. Wilkinson, 2 Vt. 480, 21 Am. Dec. 560.

We take the following from Reed v. Northfield supra: "But if an uninterrupted use of a highway and the support of it by the town for forty years, which is now the longest term of prescription known to the law, would not establish it, it would be equivalent to declaring that there can be no highway proved in any mode but by the record of its being laid out, which, in regard to many, and those the most important and ancient highways of the commonwealth, would be utterly impossible. But, without dwelling upon the supposed inconvenience of a different rule, we think it clear upon principle...