33 Miss. 283 | Miss. | 1857
delivered the opinion of the court.
This was a bill filed by the appellant in the Southern District Chancery Court, for-the purpose of removing obstructions placed by the defendants upon a public road, and preventing its free passage and use by the appellant and the public.
The ground on which the road is claimed to be a public one is, briefly, that the land over which it passed had formerly been the property of one McMasters, and that the appellant had purchased from him land, on which he established a ferry, and in connection with it, in the latter part of the year 1848, or the first of the year 1849, built a road, at his own expense, across the land of McMasters, the road and ferry being intended to be free and public, and as such, were dedicated by the proprietors of the adjacent lands, to the public use; that McMasters dedicated so much of his land as was appropriated to the road to the public use, and the public have since had the open use of it as a public road, until it was obstructed by the defendants, who purchased from McMasters the land over which it passed, and who have claimed and exercised the right of appropriating it to their own use, and have accordingly obstructed it.
The road was not adopted by the Board of Police of the county, nor was any jurisdiction exercised over it by that tribunal, and the
The only question which we think it necessary to consider in this case, is whether the permission of the proprietor of land, that a part of his land may be appropriated as a public road, and the use of it as such by the public, for several years, but not for a sufficient length of time to create a title by prescription, and without any adoption of it by the Board of County Police, as a public road, or jurisdiction exercised over it by that Board, constitutes such a dedication as will vest the absolute right to it in the public, and divest all right of the proprietor.
This question is materially affected by the provisions of our statutes, in relation to public roads.
These statutes declare, in substance, that the roads laid out and established by the authority of the Board of Police, shall be deemed public roads, making provisions for keeping them in repair, prescribing penalties for neglecting to work them, and for obstructing them, and prohibiting their being turned or altered, except by the authority of the Board of Police. Hutch. 252, et seq. By the provision of the Constitution, that tribunal is clothed with “ full jurisdiction over roads, highways, and ferries.” And these provisions of the statute, were doubtless intended to embrace all public roads in the county, not specially exempted from the power of the Board of Police, and which were necessary for the public convenience. They amount to a legislative declaration of what shall be public roads, and exclude all others. The policy established by these laws is, that the Board of Police shall be charged with the duty of having all public roads kept in repair; and to that end, ample provisions are made for the enforcement of that duty. But in order to do this, the road must be established or adopted by that tribunal ; otherwise, there is no compulsory power to have it kept in repair. And in this consists the main difference, between public and private roads, under our laws. That the former are under the compulsory power of the Board of Police as to their management, direction, and repair, to be enforced by penalties prescribed by law; and the latter are under no such authority,being subject only to the right which the original proprietor of the land, may have to resume his ownership for breach of duty, on the part of those for
In the present case, the road has never been adopted or sanctioned by the Board of Police, as necessary for the public good. No overseer has been appointed to attend to it, nor hands assigned to work upon it, as is required to be done in all public roads. It has never come under the jurisdiction of the tribunal intrusted by the Constitution with the care of all public roads. There is, consequently, no obligation which can be enforced against any one, to keep it in repair as a public work, a consideration which has been held, and we think justly, to be a correct test, of whether a road is public or private, and to fix its character as a private road. Smith v. Kinard, 2 Hill (S. C.), 642; State v. Grigg, Ib. 388. The persons interested in and benefited by it, might at any time abandon.it, and suffer it to revert to the proprietor. If it should be changed or obstructed by any one, such acts could not be brought within the penalties of the statute, and punished under them.
Thus, the benefits intended to be secured to the public by public roads, are not secured, because the road is not under the sanction of the tribunal appointed by law to protect the public interest, and to provide for the public necessities in such matters. If any invasion of the right occurs, what is the remedy ? Not that which is prescribed by law for public wrongs in such cases, but the individual aggrieved has to resort to his common law remedy; and this is aptly illustrated by the filing of this bill.
These considerations plainly show, that though such a road may be a matter of convenience to a neighborhood, it is in law one of private interest and depending upon private right, and not a public road within the policy of our laws.
There may be cases of dedications of streets in towns or cities, which might not come within the policy of our laws in relation to public highways; and there may possibly be cases, where a neighborhood may be entitled, as against the original proprietor of the
As the basis of the appellant’s bill is, that the road was dedicated as a public road, we think that that claim is not sustained, and that the bill was properly dismissed.
• Let the decree be affirmed.
