65 Ark. 368 | Ark. | 1898
(after stating the facts). One who carries a pistol as a weapon upon a public highway is subject to the penalty denounced by section 1498, Sand. & H. Dig., although he is the owner of the freehold over which the highway runs. The easement which the public has in the highway is superior to any right which the owner of the fee has. He can do nothing, by virtue of his ownership in the fee. in the soil, antagonistic to the right of the public to use the highway as such. The public is in possession of the highway, and has the right to pass to and fro upon it ad libitum. This right is to be enjoyed by the public without interruption or molestation in any rpanner from the owner of the freehold. Could it be said that any member of the public would have this right, if the owner of the freehold over which the public road ran could go upon the same carrying his pistol as a weapon? We think not. This would clearly give the owner of the soil the right to use the highway in a manner inconsistent with thé. right of the public to use it “with none to molest or make afraid.” If this were the law, it would put it in the power of the owner of the soil to prevent the use of the highway to any one who might chance to be an enemy, except under perpetual menace and dre^d.
We are aware that the supreme courts of Texas and North Carolina hold the opposite, upon the theory that a public highway over a man’s land, along side or in front of the premises of which he has possession, is his premises. We think these decisions overlook the fact that a public highway belongs to the public for the purposes of travel. They ignore the policy of these statutes, as police regulations to protect the public from acts of violence incident to the use of pistols as weapons. The policy of our law is to conserve the public peace. In what more important place can this be done than upon the public roads and streets, which are set apart to the public, and must be used by it? This court has already recognized the rule that, to constitute one’s premises under this law, one must be in the actual possession and have control of or the management of the land which he so claims. Lemons v. State, 56 Ark. 559. This the owner of the freehold does not have where he has rented same (Jones v. State, 55 Ark. 186), or where it has been dedicated to the use of the public, and where his right to the use of it must be consistent with and subordinate to the public use. To construe the law as it is construed by the Texas and North Carolina courts, we submit, would defeat, in part, the very purpose which the legislature had in view.
We conclude that the appellant was not within the exception named in the statute as one on her own premises, and, finding no error in tbe judgment of the court, the same is affirmed.
