State v. . Johnson

33 N.C. 647 | N.C. | 1850

The defendant was indicted as an overseer of a public road for not keeping the same in repair.

Upon the trial, the jury found the following special verdict:

That there is a public road leading from the county of Burke through the county of Yancey to the Tennessee line, and that the same has been used by the citizens for the space of nineteen years; that said road was made by Isaac T. Avery, in 1829, by virtue of a charter granted him by the Legislature of North Carolina in 1827 and 1828, which charter authorized said Avery to erect tollgates on said road when completed, and exact toll from persons traveling the same; that gates were put up and tolls collected for the first four years, but for twelve years past the gates have been removed and no tolls taken; that the said Avery was willing and desirous to surrender said road to the (648) county, it being an expense to him, and wished overseers appointed by the County Court for the purpose of keeping the same in repair; that application was made to the County Court by citizens of the county to appoint overseers over said road; that overseers were appointed accordingly, and hands allowed to work said road; that the present defendant was appointed overseer over part of said road, a distance of about six miles; that the land over which the said road passes belongs to the said Avery; that his hands, together with other persons, were allotted by the court to work under the defendant as overseer; that the said Avery acquiesced in the said appointment and allotment of hands, and his hands worked under the said defendant as overseer by the consent and approbation of the said Avery; that a part of the said road, leading from Burke County to the Tennessee line, passed over land belonging to other persons; that the defendant was duly notified of his appointment; that he has failed to keep the said road over which he is overseer in good repair, but suffered the same to become ruinous, miry, and in great decay, for want of due reparation and amendment. But whether upon the whole matter aforesaid the said John Johnson be guilty of the misdemeanor in said indictment specified and charged upon him, the said jurors are ignorant, and pray the advice of the court thereupon, and if, upon the whole matter aforesaid, it shall appear to the court that he is guilty of the misdemeanor in manner and form as charged in the bill of indictment, the jury find him guilty; otherwise, not guilty.

The court being of opinion against the defendant, it was ordered and adjudged that he pay a fine of $5. With which judgment the defendant being dissatisfied, prayed an appeal to the Supreme Court, which is granted. Baker v. Wilson, 25 N.C. 168, settles this case. There, certain engineers in the service of the United States had surveyed and marked out the line of a road contemplated to be made by the Federal Government. The Government abandoned the road, and the County Court of Yancey, availing itself of the survey and location which had been made, passed an order that the plaintiff, Baker, oversee the road from the top of the mountain, etc., and assigned hands, among others, the defendant, who refused to work, and was warranted for the penalty. The court decided in his favor, on the ground that the road had not been established, according to law, a common public highway which the inhabitants were bound to keep up. Gaston, J.: "Our laws are explicit in requiring no new road shall be laid out but by a judgment of the court upon notice and a petition filed, and allows an appeal by any persons dissatisfied with the judgment. Rev. St., ch. 104, and secs. 2 and 3. These provisions would be substantially annulled if the mere appointment of an overseer and assignment of hands to a supposed road were to be held,per se, a judicial determination that a public road be laid out, when none before existed. Such an order may be prima facie evidence of the existence of the road, but it is competent for the inhabitants when sued for refusing to work, or for the person appointed overseer, when indicted for not putting the road in order, to show that there is no such road to be made or repaired."

The defendant is indicted as an overseer for neglecting to keep the road in repair. He says there is no such common highway, and that the order in the County Court was void and of no effect. The facts are that, in 1827, the Legislature authorized certain commissioners to lay off a road, which road was vested in Colonel Avery for twenty-five years, he undertaking to make and keep it in repair for and during that time, in consideration of the exclusive privilege conferred on him of taking tolls and owning it as a turnpike road. The road (650) was accordingly made and gates erected and toll received for some four years, when Avery threw open his gates and allowed any one to travel along it who chose, and he expressed a willingness that the county might take it as a county road. This state of things continued for about twelve years, when the County Court, without a petition being filed and notice given as the statute requires, made an order appointing the defendant overseer, and assigning hands.

We agree with the defendant, that this was not a common public highway which the inhabitants are bound to keep in repair. It was chartered and originally made as a turnpike, and it has not been changed into a common county road by any such proceeding as the law requires. Avery, by nonuser, has subjected his franchise to forfeiture; but it is not in fact forfeited and the right divested. That can only be done by judgment on si. fa.: on the same principle that an estate of land can only be defeated by force of a condition upon actual entry. There has been no surrender of the franchise; that could only be with the consent of the Legislature, the grantor; and there has been no "dedication" of the road to the public. A dedication, like most other matters, can only be effectual with the consent of both parties. Avery we will suppose willing to make the dedication; still it has not been accepted by the proper authority, acting for and on behalf of the public; and admitting that had a petition been filed in the County Court, setting out a wish to dedicate, and praying that it might be established as a common public road, and due notice, with the right of appeal according to the statute, that the proceeding would have been effectual to make it a common public road, still that has not been done. And admitting that if the public had used it as a road, and the County Court had so recognized it, by the appointment of overseers (651) and hands to keep it in repair for twenty years, which is the shortest time, that there would then have been the presumption of a dedication: still, that has not been done. And so there has neither been an express nor an implied dedication. Several cases were cited as to the manner of dedicating streets, by laying off and settling lots in towns. Those cases have no bearing, because the manner of establishing county roads is expressly regulated and provided for by statute.

The case may be looked at in another point of view. The franchise has never been divested out of Avery. Suppose the defendant had gone on and put the road in good repair, and Avery had then erected his gates, as he might have asserted a right to do: it would have presented a strange state of things! Or suppose the solicitor had sent a bill of indictment against Avery for not keeping his road in repair, as he had undertaken to do, for the term of twenty-five years, and that and the present indictment were called for trial at the same time — a strange state of things would have again been presented; and yet, there is no question that Avery has, during all this time, been liable to an indictment. If he made a bad bargain or "missed his calculation," he ought to have petitioned the Legislature to accept a surrender.

It was probably expedient to have this road, provided those who used it would pay for making and keeping it in repair; but non constat that it is expedient to establish the road, if the labor of a sparse population is to be taxed to keep it up.^*

PER CURIAM. Judgment reversed and judgment for the defendant.

Cited: Tarkington v. McRae, 47 N.C. 49; S. v. Fisher, 117 N.C. 739;S. v. Lucas, 124 N.C. 806.

^* NOTE. — For dissenting opinion of NASH, J., see post, 659-664.

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