39 Miss. 374 | Miss. | 1860
delivered the opinion of the court:
This is an action of trespass, commenced by defendant’s intestate in his lifetime against 'the plaintiff in error, to recover damages for the construction of a railroad through the premises of defendant’s intestate. The second count is for the recovery of damages for obstructing streets, and rendering the same impassable, around said premises.
There was a demurrer filed to both counts, and it is agreed by counsel on the margin of the record that the demurrer was overruled. No judgment of the court appears in the record.
A motion for a new trial was then made, which was refused, and this judgment of the court excepted to and exceptions filed, and the case brought to this court by writ of error.
We shall not notice the assignment of error upon the judgment of the court overruling the demurrer to the complainant, as this ground is not relied on in the argument of the case here.
The 1st ground of error assigned is, that the court erred in admitting the deed from an Indian to one Prewett as testimony.
The special ground of exception is not stated in the assignment, but we are referred to the pages of the record showing the deed and the objections made in the court below. The record states that the deed and certificates thereto were offered in evidence by the plaintiff below, and that defendant below objected to the reading of the deed, because not made and certified to according to the requirements of the treaty with the Chickasaw tribe of Indians; and plaintiff in error introduced evidence showing that Lotty James was an Indian of the Chickasaw tribe and a reservee.
Neither the assignment, record, nor brief of counsel point to the precise error complained of. The plaintiff in error should have specified both in the court below and his assignment here in what respect the deed or the certificates were not according to the requirements of the treaty alluded to; otherwise this court might originate and decide points which were not urged in the court below.
It is settled that this court will not notice errors or objections which do not appear to have been insisted on in the court below.
The 2d ground of error relied on is, that the court erred in excluding the questions propounded to witnesses, Moye and Strong, in reference to incidental benefits, &c.
. There was no error in the ruling of the court in this respect. See Penrice v. Wallis, 37 Miss. R. 172; Isom v. The Miss. Central R. R. 36 Id. 300; Brown v. Beatty, 34 Id. 227.
The 3d ground of error relied on is, that the court erred in
It is insisted for plaintiff in error tbat this evidence was incompetent, because it set up a parol grant of tbe perpetual right of way and a permanent interest in tbe lands; and, second, tbat even if such a contract or parol grant were valid in this respect, there is no consideration for it in this case, and it is consequently void.
These objections to tbe testimony of tbe witness are untenable on both grounds.
First, it will be observed tbat if this were a case coming within tbe operation of tbe Statute of Frauds, (tbe 29th Charles in England,) yet there is a wide difference between tbe language of our statute (Rev. Code, p. 358) and tbat statute, as well as tbe statutes of tbe States from which decisions are quoted in tbe brief of counsel for defendant in error. Tbe words, “ or any interest in or concerning therein,” contained in tbe English statute, are omitted in ours.
But tbe true reason why tbe objections are not tenable is, tbat tbe matter set up is not a contract at all, and never was binding as such upon defendant’s intestate. But it was a mere license or permission, revocable at any peridd, unless where such revocation would operate a fraud or injury upon tbe party to whom it was granted; and not depending on any consideration to support it more than any other executed gratuity or gift. Tbe case here is even stronger than this for plaintiff in error, for this is not an action to enforce a contract, but a defence to an action of trespass for doing what this evidence shows plaintiff below permitted and licensed to be done. It is not an action to charge any person, but a defence to discharge tbe defendant below from a trespass.
The' authorities are numerous on these points. See brief of plaintiff in error.
The 4th assignment of error is, that the court erred in giving the 2d, 5th, 7th, 8th, 9th and 10th instructions. "We have examined these instructions, and think there was no error, except the 10th instruction may be liable to the objection that, as a matter of law, without the inference which a jury may or not draw from the circumstances in evidence, dedication cannot be established by proof of user for “ any length of time ” with the assent of the owners of the soil. The correct rule is, that the length of time of enjoyment, short of ten years, furnishes no rule of law on the subject which the court can pronounce without the aid of a jury ; but it is a matter of fact for the jury to consider, as tending to prove an actual dedication, and an acceptance by the public, which they may infer from any time. 2 Greenleaf’s Ev. 717, 718, sec. 662, 7th ed., and numerous authorities cited in the notes.
The case of Tegarden v. McBean & Kibbee, 33 Miss. R. 283, is not a case analogous to this. It was a ease in relation to public roads, and what is necessary to constitute them such. This is the case of the dedication of urban^easements. See Vick et al. v. May. and Ald. of Vicksburg, 1 How. (Miss.) R. 379.
The 5th ground of error assigned is, the refusal to give the 7th, 8th, ;9th and 10th instructions asked by the plaintiff in error. We think these instructions were properly refused.
Eor the error in excluding the testimony of witness Davis, the judgment will be reversed, cause remanded, and a venire de novo awarded.