Sharp v. Mynatt

• Decision Date: 30 September 1878
• Citation: 69 Tenn. 375
• Parties: Sharp v. Mynatt.
• Court: Tennessee Supreme Court

69 Tenn. 375

Sharp

v.Mynatt.

Supreme Court of Tennessee.

September Term, 1878.

FROM UNION.

Appeal in error from the Circuit Court of Union County. J. G. ROSE, J.

W. A. HENDERSON for Sharp.

W. P. WASHBURN for Mynatt.

FREEMAN, J., delivered the opinion of the Court.

Plaintiff sued defendant before a justice of the peace for trespass, by pulling down his fence. Defendant justifies on the ground that the fence had been put across a public highway, therefore he had the right to abate it as a nuisance.

The proof tended to show that a pathway, over which persons had been permitted to pass as a “near cut” (we believe it is called), had existence for about forty years; that it was passable by horsemen, but not adapted to vehicles; that it had never been enlarged to the dimensions of any public road, had never had an overseer, never been worked, repaired, or obstructions removed by the public; in fact, the public, nor any public authority, had ever taken the slightest notice of it, or control over it, nor made any claim of right to this way, except so far as simple user was concerned on the part of persons passing.

The jury have found for the defendant under his Honor's charge. We look to that charge, in view of the facts before the jury, to see if it is correct. After laying down the principle that a way might be shown in the public by dedication, evidenced by the acts of the landowner, if accepted by the public, the courts adds: “The fact of acceptance by the public of the highway might be proven by the public use as such for such period of time as, in the judgment of the jury, would be sufficient proof of the facts, and it would not be necessary to show an acceptance by the County Court, or the appointment of overseers.”

This goes on the idea that simple user for such time as the jury might deem sufficient to evidence acceptance, would make out the case in favor of the defendant. This is not the true principle, and evidently misled the jury, especially in connection with the added remark, that it would not be necessary to show acceptance by the County Court, or appointment of overseers.

In the case of Worth v. Dawson et al., 1 Sneed, 62, where the road had been used by the neighbors as a church and mill road for nearly thirty years, this court say: “No use or acceptance of the way by the public is shown, nor any recognition of it by the proper authority, the County Court; and that while a right of way may be shown by dedication, the...