State v. Marble
| Decision Date | 30 June 1844 |
| Citation | 4 Ired. 318,26 N.C. 318 |
| Court | North Carolina Supreme Court |
| Parties | THE STATE v. JARVIS MARBLE. |
Where an individual appropriates land for a public highway, much less time than twenty years will suffice, to make it a public road: for it is rather the intention of the owner, than the length of time of the user, which must determine the fact of dedication.
Where a road has been used by the public, as a public highway, for twenty years, and there is no evidence how this user commenced, a presumption of law arises that this road has been laid off and esteblished, as a public road, by due course of law. But a possession or user by the public for a less time will not raise this presumption.
But a county court cannot dedicate or appoint a public road, in any other manner than as authorized by law.
There may be a public road de facto, and the only person, who can question the right to such a rood, is the owner of the land--but the owner can only be bound by a proceeding against him according to the law of the land, or by an user of twenty years, from which such proceedings will ordinarily be presumed.
So, also, no presumption of a legal authority to erect a gate across a public road can arise, in a less time than twenty years from the actual erection of the gate.
The cases of Geringer v Summers, 2 Ired. 232, and Woolard v McCullough, 1 Ired. 432, cited and and approved.
Appeal from the Superior Court of Law of Onslow County at the Spring Term 1844, his HONOR Judge MANLY presiding.
The indictment, under which the defendant was tried, was for the obstruction of a public highway, by the erection of a gate across it. The evidence in the case was, that the defendant had erected a gate across the road, as laid in the bill of indictment, about 9 or 10 years before the commencement of the prosecution, and that this obstruction had continued to the time of the prosecution. It appeared, also, that the road, leading between the two points designated many years ago, had run in a different direction; but that, for the last twenty five years, it had not been changed--that the present road had been used, for all that time, as a public road, and was so travelled and considered by the neigbourhood--that the County Court had uniformly exercised a jurisdiction over it, as such, by laying it off into road districts and appointing overseers thereof.
It was contended by the defendant's counsel, that there could be no conviction, because, 1st. The road had never been legally laid out and established as a public road: 2dly. That the time, which the gate had stood across the road, raised a presumption of a grant of the power to erect it.
But the Court believed and so instructed the jury, that there was no necessity for shewing any act of legislation, or of the Court, laying out the said road, if the jury believed it had been used as a public road, in the manner testified by the witnesses, for twenty years or more. A legal setting apart or allotting of the road to the use of the public would be presumed. And so, if the County Court had assumed a jurisdiction over the road in question, allotting it into road districts, assigning hands and appointing overseers for the same, this would be an implied dedication of it to the public uses; and no other more formal proceedings would be necessary for that purpose. The road would be thus a public road de facto; and it would be indictable to obstruct it.
The Court instructed the jury, that the continuance of the obstruction had not been sufficiently long to warrant any presumption of a grant for its erection.
The jury, under these instructions, found a verdict against the defendant, and, judgment being pronounced accordingly, the defendant appealed.
Attorney General for the State .
No counsel in this Court for the defendant.
The first instruction, given by the Court, is in answer to an objection made by the defendant's counsel “that the defendant could not be convicted, because the road had not been legally laid out or established as a public road,” either by the act of the Legislature, as in the case of Rail roads, or by the County Court, or by a dedication of...
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