43 Ala. 24 | Ala. | 1869
The appellant was indicted for obstructing a public road, in the county of Mobile. The evidence to sustain this indictment was, substantially, that there was a street, road, or passway, called Houston street, outside of the limits of the city of Mobile, crossing, at right angles, Government street, in its extension beyond the city. The portion of this street claimed to have been obstructed, was north of Government street, about fifty feet wide, and bounded on each side by a fence. Its northern extension was some distance to a place in the open woods, where there was a swamp, passable only in dry weather. On this account, the road was but little used, though all persons who chose to do so, passed through at pleasure, without objection from any one, and had done so, according to the testimony of some of the witnesses, since 1845. One witness stated that it had been opened by the owners of the land, after the battle of San Jacinto, and' called Houston street. It also appeared that there was a drain or ditch, along one side of this road, from Government street to the pond in the woods. This ditch had been opened several years ago, by the owners of the adjacent land, but a recent application to reopen it had been refused, and the drainage from Government street was thereby impeded. The part of the road south of Government street was much used as a highway. On this evidence the court charged the jury, at the request of the State, that “ the evidence, if true, would authorize them to find that the street was a public road dedicated to public use.” _
Section 1812, of the Revised Code, declares that no public road can be established, changed or discontinued, ex
That property may be dedicated to public use, is a well established principle of common law. This right of use may exist in the public, and have no other limitation than the wants of the community at large.—New Orleans v. The United States, 10 Peters, 712. In the case of Jarvis v. Dean, 3 Bingham, 447, Chief Justice Best told the jury that, if they thought the street had been used for years as a public thoroughfare, with the assent of the owner of the soil, they might presume a dedication; and the jury found a verdict agreeably to the presumption, although the street had been used as a public road only four or five years.
As the presumption depends more on the assent of the owner than the length of time of the use ; so, time, no matter how long, can not operate as a dedication, when the circumstances of the use do not indicate such an intention. In this State, where the population is sparse, a privilege permitted by the owner of land to the public to pass over it, so long as he is not able, or does not care to enclose or to till it, ought not to be so interpreted as to convert his favor into a deprivation of his right.—Hole et al. v. Attorney-General, 22 Ala. 190. The charge asked by the defendant, “ that in order to convict, the jury must be satisfied from the evidence, that the road charged to have been obstructed,
The charge asked for the prosecution ought not to have been given. The evidence would authorize such a verdict as was rendered; but it would also have. permitted the reverse conclusion. There was no evidence that the road had ever been recognized by the commissioners court as a highway. There was none that the owners, who were said to have opened it, were separate and distinct owners of the land through which it passed; none, that it might not have been intended as a private road for their own convenience. Such considerations as these, slight perhaps, but pertinent, taken in connection with the other testimony, might have procured a verdict favorable to the defendant, if the sufficiency of the testimony in support of his conviction had not been declared by the court.—Hair et al. v. Little et al., 28 Ala. 248.
Judgment reversed and cause remanded.