Daniel, J. The first question to be decided in this case *436 ¡S) whether the proofs offered were in law sufficient to estab^le waY to *-le a highway or public road. We will begin by remarking, that the common law mode of creating and establishing a public highway, is not repealed by the first section of our road law, nor by any other act of Assembly. Six miles of the road had, for more than twenty years, been re-pitted to be, and had been used as a public road. This evidence was sufficient, in our opinion, to go to the jury for them to presume the fact, that the way had been dedicated to the public as a highway, by the proprietors of the land over which it ran.
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WOOLARDv. McCULLOUGH,23 N.C. 432(1841)
MARTIN WOOLARD v. M. H. McCULLOUGH.
Supreme Court of North Carolina
1. The common-law mode of creating and establishing a public highway is not repealed by any of our acts of Assembly.
2. Theuserof a road as a public highway for twenty years will, under the circumstances of this case, authorize a jury to presume a dedication of the road by the proprietors of the soil to the public use.
3. Where a road is opened by an order of the county court, according to law in every respect, except that no damages were assessed by the jury to the owners of the land, none but those owners can impeach the order for that cause.
4. An overseer of a public road can require no hands to work on his road, unless they live within a district which has been designated for him by the county court, or unless they have been specially assigned by the court to work on his road.
APPEAL fromBailey, J., at Spring Term, 1841, of BEAUFORT. The case as transmitted to the Supreme Court was as follows:
This was an action commenced by warrant, before a single magistrate, to recover several penalties for not working on the road. On the trial it appeared that at March Term, 1838, of Beaufort County Court the plaintiff was appointed overseer of a road leading from the town ofPage 327Washington to the Martin County line; that he had duly summoned the defendant to work on said road, at several different times, being ten days in all, for himself and his two hands, in the year 1838; that defendant had sent two of his slaves to work on said road in question one day during that year. In order to prove the road in question a public road, the plaintiff introduced a petition from the records of the county court of Beaufort, signed by sundry citizens of said county, filed at February Term, 1835, a copy of which, with the other proceedings (433) in the case, is herewith annexed, and made a part of this case. The plaintiff introduced witnesses who proved that more than twenty years ago the road from Washington for about 6 miles (the whole distance from Washington to the Martin line was proved to be about 8 miles) was reputed a public road, and worked on as such, near which part the defendant lived; the rest of the distance was a forest. In order to prove the liability of the defendant to work on said road, the plaintiff introduced witnesses who proved that the defendant resided, in a direct line, about a mile from the nearest point of said road, which at this point was the nearest public road to the defendant, if this is a public road; that the defendant resided within about a mile and a half of another road, which was reputed to be a public road. It was further proved that for more than fifteen years the persons who successively occupied the premises now occupied by the defendant had worked on so much of said road as was then opened. It was also proved that on one occasion the defendant had told the plaintiff that he would make compensation for the failure of his slaves to work on said road. Upon this proof, the defendant prayed his Honor to instruct the jury that it was necessary to prove the road in question to be a public road, and that it had not been proved; that, supposing it to be a public road, the defendant was not liable to work on it; also, that if any part of said road was not a public road, they should find for the defendant, because the charge was for not working on the whole road. This instruction his Honor refused, but charged the jury that the petition, report of the jury, and orders made by the county court were sufficient in law to constitute it a public road; that if the defendant had worked upon the road and lived within a mile of the same, and nearer thereto than to any other, and had received due notice to work upon the same, he was liable for neglecting or refusing to work, although the county court of Beaufort had not assigned him to work on the same. The jury returned a verdict for the plaintiff. A rule for a new trial was obtained, which rule was discharged, and a judgment rendered for the plaintiff, from which (434) the defendant appealed.
The documents appended to the case, being extracts from the records of Beaufort County Court, were as follows:Page 328
1. A petition at March Term, 1803, from sundry inhabitants of that county, praying for a road from the town of Washington, in the course of Broad Street, "till it strikes the main road which passes by Henry S. Bonner's, and farther, if the jury think proper"; an order thereon for the sheriff to summon a jury "to alter the road from the fork of the said road leading from Washington to Jamestown," so as to run "round the fence of Charles Cherry, Sr.," which the sheriff returned "Executed"; and an order of the court that a road be run and laid, agreeable to the petition, etc., and that J. C. and others be appointed jurors to attend the surveyor, etc., which order was returned by the sheriff "Executed."
2. At September Term, 1807, of said court an order issued to the sheriff of said county to summon a jury "to extend the new road from the hill at Edward Bonner's so as to strike the Jamestown road in the most direct route," which was returned by the sheriff, as follows: "Jury summoned and met on the ground; after being duly sworn, proceeded and laid off the road as here required, as will fully appear by their return to court of the same, under their hands." The only return exhibited was an indorsement on the back, of the sheriff's, of the names of the jurors.
3. A petition at February Term, 1835, of sundry inhabitants of said county, praying that a road might be established "from Hawkins' bridge, adjacent to the town of Washington, to intersect the Jamestown road leading by, etc." (mentioning the names of the owners of land on the route). Upon which the following order was entered: "On motion of the court, and proof of said petition being made public, and notice given, it is ordered that the said road be altered and changed, so as to run in a straight line from the town of Washington to the place where it strikes or arrives at the Jamestown road, and that a jury be summoned by the sheriff of this county to so run and lay off the same and make (435) report to the next court, under avenire, etc."; to which order andvenirethe sheriff and jury made the following return: "We, the undersigned jurors, summoned by the sheriff for the purpose of altering the road running from Washington to Jamestown road, proceeded to alter and turn said road, and run with the old road as it was laid out before, and then a straight line to the swamp, and through the swamp a direct course to the Martin County line, through the plantation of Martin Woolard." Signed and sealed by the jurors. The sheriff returned as follows: "In pursuance to the annexed order, I have summoned a jury, and first having had the same duly sworn, they laid off and altered the road as above stated, 3 April, 1835." Signed by the sheriff. At April Term, 1835, of said court, the following order is entered: "On proof of advertisement made and ordered, it is ordered by the court, upon hearing the report of the sheriff and jury, made onPage 329laying off said road, that said report is deficient in not valuing the damage, if any, sustained by the proprietors through whose land said road is to run, and that the said report be recommitted to the sheriff for amendment; or that a new order to said sheriff to lay off said road again, and assess the damages to the proprietors, if any, on proof of advertisement made as ordered, that the road be laid off as prayed for." Another order at the same term, in the following words: "On proof of advertisement made as ordered, it is considered by the court, upon hearing the report of the sheriff and jury, made on laying off the road, that said report is deficient in not valuing the damage sustained, if any, by the properties through whose land said road is run; and that the said report be recommitted to the sheriff." Upon this order, there was no return made by the sheriff. At July Term, 1835, of said court the following order was made: "Ordered that the report made to the last term be confirmed."
J. H. Bryan for plaintiff.No counsel for defendant.
DANIEL. J.
The first question to be decided in this case is (436) whether the proofs offered were in law sufficient to establish the way to be a highway or public road. We will begin by remarking that the common-law mode of creating and establishing a public highway is not repealed by the first section of our road law, nor by any other act of Assembly. Six miles of the road had for more than twenty years been reputed to be, and had been used as, a public road. This evidence was sufficient, in our opinion, to go to the jury for them to presume the fact that the way had been dedicated to the public as a highway by the proprietors of the land over which it ran. With respect to a claim of highway, in the words ofHale, C. J., "much depends on common reputation." 1 Vent., 189. And if the owner of land permit the public to pass and repass over his soil, and use it as a public highway, without molestation, or any assertion of his rights for some time, the law will presume a dedication of the way to general use. Much discussion has arisen as to the period which must elapse before such a dedication will be presumed. Woolrich on Ways, 9 to 14.Jarvis v. Deans, 3 Bingh., 447. We think, however, that twenty yearsuser, under such circumstances as those stated in this case, will authorize a jury to presume a dedication. The two remaining miles of road were opened agreeable to law, with the single exception that the jury did not assess damages to the proprietors over whose lands the road ran. This error, however, is not one of which the defendant can avail himself in this collateral way. The proprietors might complain, but third persons cannot. AndnonPage 330constatbut that the proprietors may have abandoned their claims to damages before the order confirming the report of the jury had been made by the court.Secondly. Was the defendant liable to be summoned to work on this road? The act declares, Rev. St., ch. 104, sec. 10, "that it shall be the duty of the overseers of the public roads to summon all white males between the ages of 18 and 45, and free males of color, and (437) slaves, between the ages of 16 and 50,within their districts, etc." The Legislature has put the public roads, and the overseers of the same, mainly under the supervision of the county courts; and although the act has not said expressly how the overseers' districts are to be laid off, or by whom they are to be established, yet it seems to us but fit and proper, and the Legislature must have so intended it, that the courts which were intrusted with the general supervision of the highways should be clothed with the power of laying out the overseers' districts. Great disputes and disturbances in neighborhoods will be prevented by this construction of the act. The general, though not universal, practice through the State, as we learn, has been in accordance with this opinion. The plaintiff was an overseer without hands; he should have made application to the county court for a list of hands, or an assignment of aDistrict. The defendant's hands had never been assigned to that road; his lands were not comprehended by the court in a district of the defendant, as overseer of the said road. We therefore are of the opinion that the judge erred in his charge on this point of the case, and that there must be a new trial.
PER CURIAM. New trial.Cited: S. v. Marble,26 N.C. 321;S. v. Johnson,33 N.C. 660,662;S. v. Cardwell,44 N.C. 248;Tarkington v. McRea,47 N.C. 49,50;Askewv. Wynne,52 N.C. 24;S. v. McDaniel,53 N.C. 286;Crump v. Mimms,64 N.C. 770;S. v. Long,94 N.C. 899;S. v. Smith,100 N.C. 554;S. v.Thomas,168 N.C. 149.
(438)