54 So. 236 | Ala. | 1911
This is a bill filed by the appellants against the appellee, to remove obstructions across a road claimed to be a highway, and to enjoin the respondent from obstructing the same. The principal point of controversy is whether or not the road in question is a public road. It has never been taken charge of by the county authorities, or worked by the forces under the overseer of roads. On the contrary, it is in evidence that at one time-an application was made to the commissioners’ court to open it as a public road, and the same was refused.
The evidence tends to show that, for 20 years or more, persons living in that neighborhood were in the habit of passing over said road; that slight changes were made in it by persons owning lands along it. It is not shown by the evidence how long the lands contiguous to the road were open wood lands, nor how long lands along it have been cultivated. There is no proof of any distinct claim by those who have traveled over the road, of a right adverse to the owner of the land, but
The doctrine of prescription applies to public roads, but when a public road is sought to be declared, by prescription, the burden is on the complainant to show, not only the continuous user for 20 years, but that the road was used as a matter of right, and not merely by permission of the landoAvners. Indeed, when there are certain statutory requirements for establishing public roads, and when the overseers of roads may be required to work all public roads, it would seem that, in the absence of any recognition by the public authorities, it would take very clear proof to rebut the presumption that a user is merely permissive in this country where it is common knowledge that roads are frequently used, merely as a matter of convenience, and with no intention of their being dedicated to the public, not only
The Supreme Court of Massachusetts has said that “merely from using what is open to use, without more, no presumption arises that the use is adverse”; also that, while it is not easy to express in what particular manner the assertion of right should be shown, “nevertheless the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right to travel over a private way, and also from a use which is merely casual or incidental or permissive.”—Sprow v. Boston & A. R. Co., 163 Mass. 330, 340, 39 N. E. 1024, 1025.
The Supreme Court of Nebraska holds that, in order to establish a public road by prescription, “the use by the public must be under a claim of right distinctly manifested by some appropriate action on the part of the public authorities.”—Hill v. McGinnis et al., 64 Neb. 187, 189, 89 N. W. 783, 784, 785.
Says Elliott: “Before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used -some defined way without interruption or substantial change, for a period of twenty years or* more.” — Elliott on Boads and Streets, page 137.
While a number of the cases decided by our own court relate to roads claimed over uncultivated ■ lands, yet the later cases lay down the principle generally, in accordance with the best-considered cases in other states, that the mere use of a road, without proof tending to -show the adverse user under claim of right, does not raise a presumption of dedication or the establishment of a public road, and, in view of the known usage of the country, we hold that the evidence in this case
The decree of the court is affirmed.
Affirmed.
