Hill v. Averett

CHILTON, C. J. W'e think the chancellor correctly dissolved the injunction in this case. It appears from the answer, that Hill has been resorting to unfair means, on the Georgia side, to divert the travel from the defendant’s ferry and toll-gate, and has opened a private way leading from his (Hill’s) ferry to the public road on this side of the river. This private way has been interfered with, by the defendant’s building a fence on his own land, and so changing the public road as to straighten it, and make it pass over better ground; and this change, it is averred, has been adopted by the overseer of the road, &c. Now we think it nothing but reasonable, that Hill, the appellant, who has endeavored to compel persons traveling from the east- side of the river, along this public road, to cross at his ferry, and thereby to pass around the ferry and toll-gate of respondent, should have a road leading from his ferry to the public road on this side of the river, which he may he compelled io keep in repair, and not one which he may open or close at pleasure, and for the repair of which he is in no way bound. If he desires to have a road to his ferry on the Alabama side, let him appeal to our Courts of Roads, &c;; and if it is proper he should have one as a private way, the law makes provision for it. — Code, §§ 1187, 1188. In that case, however, he must keep the road in repair, as well as compensate the “ owners of land, over which the road passes, all damages resulting thereto from the establishment of such [489] road, to be assessed as in case of public roads.” — Code, supra. ■ Until be acquires some riglit of this kind, and places himself under some obligation to the public to repair the road— in other words, until either a public road or private way is established by law, we do not think the chancellor, in a case the exigencies of which make no stronger appeal for the exercise of preventive justice than the present, should-interpose his extraordinary powers and enjoin, or order the fence of a coterminous land proprietor to be taken down, because it interferes with such way. We will not say that there is no case where the chancellor can remove an impediment or obstruction in a private way which is not established by law : we confine our opinion to the case before us, as disclosed by the' record. Let the decree be affirmed.