Bowden v. Adams

Mr. Justice Raney delivered the opinion of the court: The question upon which a disposition of this cause is dependent is the authority of the County Commissioners, upon whose order the appellants assume to act. The statutory provisions in this State during the period covered by the record, provided (Act of 1845, Thompson’s Digest, 139,) that all the roads in the several counties that have been laid out according to law shall be, and they are declared to be public roads. The act named authorized the County Commissioners to order, on application, the laying out of any public roads throughout the county, when the same shall be deemed necessary, and to discontinue such as should be found useless, burdensome or inconvenient, and to alter roads as occasion should require. In 1874, a revision was enacted under the title of “An act to establish and keep in good repair the public roads and highways in this State.” It provides that all the roads and highways in the several counties in this State that have been laid out according to law shall be and they are declared to be public roads. It gives the County Commissioners power and authority on application of the citizens of their respective counties to order the laying out of any road or roads throughout their county, when the same shall be necessary — 219 — for the convenience of citizens or the traveling public, and also power to discontinue roads or highways on application, and to alter and change roads. Each act also provides the manner of marking out a neighborhood or settlement road, and that it shall be done upon a petition presented to the board and “ signed by twelve or more householders, inhabitants of the county, praying for the establishment of the road from a certain place therein specified,” and “if the signers to the said petition shall be residents in the neighborhood of the road prayed for,” and if the “ petition - shall appear reasonable,” commissioners will be appointed to lay out the road. Whenever proceedings ad quod damnum are taken in laying out a neighborhood or settlement road the damages are to be paid by the person or persons applying for the same, but if it be a public road they are payable out of the county treasury. Each act makes it the duty of the County Commissioners to lay out the roads in their several counties each year into road districts, and to appoint in each road district commissioners of roads and bridges, whose duty it is to lay off the roads in their respective districts .into road divisions, and apportion the hands liable to work on the roads, and appoint an overseer or supervisor of each road division, and furnish him with a list of hands liable to work on his road. The act of 1845 provided that any road commissioner or overseer refusing or neglecting to perform his duty should forfeit a sum prescribed by it, and that persons liable to work roads should be fined when they make default therein. It also provided that the road commissioners should be liable to the County Commissioners for keeping in good order the several public roads in their district, and subjected them to fine for not attending to their duty, and that overseers should be liable and fined for like default in their duties. The act of 1874, (both of itself and including — 220 — the amendment of 1883) likewise imposes a penalty upon road commissioners and supervisors for not performing their duties, and it punishes defaulting “ road workers.” The amendatory act of 1883 makes it the duty of County Commissioners to levy a road tax of from a half mill to a mill to be applied to working and keeping in good repair the public roads and highways and for the erection of mile and guide posts, which both the original acts provide shall be put up at the expense of the county. The act of February 10, 1832, (sections 7 and 8, page 428, McClellan’s Digest,) provide that a public road or established highway shall be construed to be any road made by authority of an act of Congress, any law of this State, or the road commissioners of the counties of this State ; and makes obstructing any public road or established highway an offence, punishable by fine, and enacts that the judgment upon conviction shall also be that the obstruction be removed. The general subject of this act is indicated by its title, which is : “An act relating to crimes and misdemeanors.” The act of 1872 (Chapter 1882) defining the duties and fixing the pay of County Commissioners gives them power “ to alter, lay out, establish, maintain, vacate or discontinue any road or highway in their respective counties,” and “ to build and keep in repair county roads and bridges.” In the case of Bradford vs. Cole, 8 Florida, 264, Cole presented a petition to the County Commissioners of Leon county alleging that there had been on the proposed route a road of ingress and egress running through Dr. Edward Bradford’s land for the last fifteen or twenty years, and that it is the nearest road of the petitioner to Tallahassee, and to that portion of the neighborhood in which his practice lays, and would inconvenience persons sending for him in his professional business as a physician and compel them to go some five miles further; and he prayed the Commission — 221 — ers to give it consideration, and report whether or not the said Bradford would be damaged more by the road being opened or the community by its being closed ; Cole signed it and some twenty-one others, residents of the neighborhood, joined in the petition. The Commissioners appointed three persons to view and mark out said road and report to the board as the law directs, and they reported that they had marked out a road giving its course and distance, and also stating their belief that the road is necessary and should he established, and that it would be of great convenience to the inhabitants ; and further “ that it has been a neighborhood road for a great many years.” The County Commissioners after hearing testimony and argument of counsel adopted this report, and declared the road “ a public neighborhood road.” It was held by the court, who disclaimed any purpose of extending to proceedings of this kind technical rules, or of requiring more than substantial compliance with the law, that the proceedings were fatally defective; and that the fact that the road was an old one could have no weight in the consideration of the case, “ for if the party has rights through this there is no need of his application, and his remedy is by indictment for obstruction, or action on the case, &c.” If the fact that a road has been for many years a neighborhood road is of no weight in sustaining the action of County Commissioners in declaring it to be a public neighborhood road, when there has been a failure to comply with the provisions of the statute regulating the mode of establishing such a road, it seems to us that the fact that there has been a dedication by a private party by sale of lots according to a recorded plan, as in this case, and even a use by the public of the part of the street in question, would not, under the same or a substantially similar statute, authorize the County Commissioners to exercise the authority — 222 — of opening such part of the street after it has been enclosed and held adversely, in the manner indicated by the record, for a period of over thirteen years. We do not see anything in the statute that gives them any such authority. And assuming that the statute gives such authority to any class of road officers as to any road which is regarded and treated by road authorities in the performance of their regular duties as a public road, we still fail to see the application of such authority to a road or any part of one, where it or such part has for more than thirteen years been openly enclosed and adversely held, and neither during this time, nor before, have the road officials ever recognized it as a public highway. There is no pretence that this street, or any part of it, has ever been laid as either a public or a neighborhood road in accordance with the statute law as it existed either prior or subsequent to the passage of the act of 1874, and if it should be contended that the act of 1872 repealed the act of 1845, in so far as doing away with formalities as to laying out highways, it is a fact that the portion of the street in controversy has been enclosed, and not used by the public or as a highway since prior to the approval of said act, and no official action was taken as to it pending the interval between such approval of and that of the act of 1874, nor ever, until the action now in question was ordered. It was argued on behalf of the appellees that in cases of dedications of the kind in question, some acceptance of the street or road dedicated, must be made by the proper road officers before a road or street can become a public highway where there is a statute like ours, and the forms of the statute have not been pursued, and there is no legislation declaring the particular street or road to be a public highway. There is some conflict of authority upon this question, and it is not necessary to pass upon the point. Admitting that — 223 — the making and recording of a plat and the sale of lots with reference to such plat, and the long continued use of the streets by the public may of themselves constitute the streets public highways, still we are without authority to show that where a part of a public highway has been enclosed under an alleged adverse holding as this street has been, and has not been used or in any manner treated as a public highway for over thirteen years, and has never been officially recognized as stich, that the County Commissioners have been given the power to pass upon the relative lights or claims of the public and the obstructing party and enforce their judgment. We find no law making them the remedial agents of the public in such a case. There is nothing in the statute giving them any such power. The remedy of the public in such a case, even if the street is, or has been a public highway, within the meaning of the statute, is by indictment; and In so far, moreover, as the mere private rights of owners of lots in the plat are concerned, the County Commissioners have no power. It is true that any person who sustains a special injury or damage (rom a public nuisance to an extent that will support an action at law may abate the same of his own motion, doing no more damage than is necessary to protect his rights and prevent a recurrence of damage from the nuisance abated. Wood on Nuisance, §733. We are not, however, dealing with this question, and it is not necessary to consider it, or how far such private person may go in the abatement of a nuisance. It is held that an individual has no right to injure or destroy the property of another because it is so situated as to be a public nuisance, unless such individual is exercising the public right which is obstructed by it, nor even then, if he can reasonably avoid it. Bowden vs. Lewis, 13 R. I., 189, and citations on page 192; Owens vs. State, 52 Ala., 400; Cobb vs. Bennett, 75 — 224 — Penn. St., 826 ; Wait’s Actions and Defences, Vol. 4, page 778 ; and that a citizen has no right to abate a public nuisance, if such abatement involves a breach of the peace. Day vs. Day, 4 Md., 262. For the reason that we think the County Commissioners have no power to act in the premises, and without reference to any other question, we affirm the order granting the injunction.