| Ark. | Mar 31, 1894
1. Several of the State’s witnesses swore that the fence erected in 1892, and constituting the obstruction charged in the indictment, inclosed ground which had been used continuously by the public, as part of the Fort Smith and Waldron road, for more than seven years next before the time when that fence was built. The court’s second instruction, as to the establishment of a highway by prescription, was applicable to this testimony, and it was not therefore objectionable on the ground that it was abstract. Patton v. State, 50 Ark. 53" court="Ark." date_filed="1887-11-15" href="https://app.midpage.ai/document/patton-v-state-6542179?utm_source=webapp" opinion_id="6542179">50 Ark. 53. A preponderance, however, of all the evidence appears to show that the way obstructed in 1892 was not used prior to 1886.
2. The third instruction of the court was as fol-_ _ lows i I he evidence ior defendant showed that a pub-lie road was regularly surveyed and opened about 1865 across defendant’s land; that in 1886 defendant ran a fence, which crossed this road diagonally, and deflected the travel from the old road until it reached the corner of the fence, where it turned back in the old road, and that the distance between the old road and the line of travel along the outside of the fence at the widest part was about forty or fifty feet. Now, if you find that when defendant built his fence in 1886, the public acquiesced in the change, and traveled along the outside of the fence as a public road, and that it was worked or traveled over for work by the overseer and hands as such, then this constituted a public road by dedication and acceptance, and, if defendant fenced it up, it was obstructing a public road.”
The defendant was not prosecuted for obstructing any part of the original road-bed, but for building a fence across the way traveled by the public to avoid the fence he built in 1886 ; and, for the purpose of the third instruction, the way thus used is treated as a new and distinct road. If it was a public road, it became such, according to the testimony of a majority of the witnesses, by dedication, and not by prescription ; and the verdict of the jury-may therefore have depended, so far as we can see, entirely upon whether they believed the new road had been established as a public rohd by dedi- ‘ cation. Upon this question they received no charge, except that embraced in the third instruction ; and that instruction, it will be noticed, does not require them to find as a matter of fact whether the defendant intended to dedicate the land occupied by the new road-way or not.
The dedication of land for a highway consists of its appropriation to that use by the owner, and its acceptanee by the public. These two acts are of equal importance, and both are essential. And. Law Die. 324; 2 Greenleaf Rv. sec. 662. The owner cannot convert his land into a public highway without the consent of the public ; nor can the public dedicate it before he has ‘1 in some way ” clearly assented to the dedication. Irwin v. Dixion, 9 How. (U. S.) 30; McCormick v. Mayor, 45 Md. 524; Steele v. Sullivan, 70 Ala. 593; Connehan v. Ford, 9 Wis. 240" court="Wis." date_filed="1859-08-13" href="https://app.midpage.ai/document/connehan-v-ford-6597857?utm_source=webapp" opinion_id="6597857">9 Wis. 240.
“No specific length of possession is necessary to constitute a valid dedication;” but “an intent on the part of the owner to dedicate is absolutely essential, and . unless such intent can be found in the facts and circumstances of the particular case, no dedication exists.” 2 Dill. Mun. Corp. secs. 631, 636.
Many other authorities might be cited to show that ■“ the vital principle of dedication is the intention to dedicate.” Ang. Highways, sec. 142.
In the present case there was no “express manifestation ” or declaration of a purpose to dedicate, and the int'ent to do so can only be proved by inferring it from the circumstances.
As the third instruction does not submit the question of intention in any form, it was error to give it.
Reversed.
. Cited, in Ward v. Farwell, 6 Col. 69.
. See also Elliott’s Roads, 121; 5 Am. & Eng. Ene. Law, p. 400 ; 2 Greenleaf, Ev. sec. 662; 58 Wis. 274" court="Wis." date_filed="1883-09-25" href="https://app.midpage.ai/document/eastland-v-fogo-6604148?utm_source=webapp" opinion_id="6604148">58 Wis. 274; And. Daw. Die. 324.
. Elliott, Roads, pp. 90, 91, 121.
. Const, art. 7, sec. 23; Haley v. State, 49 Ark. 153; Smith v. State, 50 Ark. 545" court="Ark." date_filed="1888-05-15" href="https://app.midpage.ai/document/smith-v-state-6542258?utm_source=webapp" opinion_id="6542258">50 Ark. 545.