Lead Opinion
November 16, 1925. The opinion of the Court was delivered by For the reasons assigned by his Honor, Judge Shipp, it is the judgment of this Court that the judgment of the Circuit Court be affirmed.
MR. CHIEF JUSTICE GARY concurs.
MESSRS. JUSTICE COTHRAN, MARION and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur in result.
Concurrence Opinion
I concur in the result of this case upon the following grounds:
While unquestionably the turnpike company has dedicated the highway to the public and the easement is a public easement and not private property, the turnpike company still retains the fee-simple title to the land. The public has an easement to use the road upon the payment of tolls provided for in the Act incorporating the turnpike company; that is, the public has a qualified easement. A person, therefore, who attempts to use the highway in deflance of and in breach of that condition, after notice, commits a trespass upon the land of another after notice.
Even if the defendant had the right of ingress and egress from his lot to the road before the incorporation of the turnpike company, he has waived his right thereto by joining in the common purpose of establishing a turnpike road for the use of which all persons are required to pay toll.
The other matters referred to in the decree of Judge Shipp have not been considered and in my opinion should not be considered adjudged by the judgment of this Court.
MR. JUSTICE MARION and MR. ACTING ASSOCIATE JUSTICE R.O. PURDY concur. *Page 147