Kinnare v. Gregory

Simrall, C. J., delivered the opinion of the court. John and Jane Kinnare, husband and wife, were sued by the plaintiffs below for obstructing the public road, and preventing the use of it by them. The plaintiffs offered testimony tending to show special damages to them. A verdict and judgment was rendered against the defendants for $400. The important question (inasmuch as it lies at the foundation of the plaintiffs’ right) was the admission in evidence of the order of the Board of Supervisors dated July 10, 1873, over the objection of the plaintiffs in error. This order declared that the road No. 8, therein described, “ be declared a public road, and that F. S. Gregory be appointed overseer of said road.” It will be premised that the owner of the Barefield plantation, lying contiguous to Vicksburg, had confided the sale of the property to Dr. Bowmar, a real-estate agent, and that Bowmar had caused the same to be survejmd into numerous lots. The plat of this survey was filed for record, and the lots were sold with reference to it. Marked on this map is the line of a projected road, and the conveyances of lots adjacent to this road are described with reference to it. This projected road commenced at a point where the Baldwin’s Ferry Road crossed the Vicksburg & .Meridian Railroad, running through the Barefield tract, and ending at point D on the plat of the survey. — 620 — The plaintiffs owned one of these lots, and by this action seek to recover damages from the defendants, who had purchased a part of the Barefield tract, for obstructions across the road, and a hinderance of their right, as claimed, to use it as a highway. The defense rested, in the main, on the proposition that this road No. 8 was not a public highway, and that thereby the plaintiffs had no right of action. It Avas not a public highway, because, as argued by counsel, it was not established by public authority in the manner prescribed by the Code, sections 2334, 2335, 2336. The statute declares that no person shall change, turn, or alter a public road, unless by order of the Board of Supervisors. But such change may be made, or a public road may be laid out, on petition to the Board of Supervisors by ten or more freeholders, in the mode prescribed in section 2336. There were public higliAvays at the date of the revision; these Avere recognized, and a method is laid down by Avhich existing roads may be changed and new ones opened. But it is a grave mistake to suppose that a highway may not be established by the owner or owners of the freehold, which, Avhen accepted by the public, is as complete as if the method appointed in the statute Avere pursued. The proprietor of the fee may make such disposition of the land, either by the assignment of the entire estate, or b}r creating a less estate, or by subjecting it to such servitude or easement, for the benefit of one or more individuals or the general public, as he pleases. There is no limitation or restriction on this absolute dominion, except that he must not do that prohibited by huv. He may grant to certain persons or to the public the easement of a highway over his land ; not that the grant is technically by deed, but he may do those acts Avhich unequivocally manifest an intention that the community shall have and enjoy a higliAvay on 1ns private property. When the public accepts his offer there has been consummated that which is of — 621 — equal import with a contract or grant, and there has been accomplished what is expressed by the term “ dedication.” The acceptance may be shown in two ways : first, by the formal act of the proper authority competent to speak and act for the public, or it may be implied from circumstances, such as user, etc. The People v. Jones, 7 Mich. 176; Fulton v. Mehronfield, 8 Ohio St. 440; Briel et al. v. City of Natchez, 48 Miss. 436. Easements which depend for their support on prescription rest on the long enjoyment of the right, acquiesced in by the proprietors of the fee. A familiar mode, at the common law, of impressing upon land some servitude for the public-was to prove a dedication by the acts and acquiescence of the-owner of the estate, and acceptance and user by the people, or a formal act of acceptance by those who represent the public. The statute was not designed to interfere with or prohibit the common-law methods of granting the easement of a highway, but the plain intendment was to define a method by which the state could compel the private owner to yield the easement to the public. The proceeding is a formal method of “ taking-private property for public use,” and rests upon the prerogative of eminent domain in the state. The Board of Supervisors, by its order of July 10, 1873, accepted the dedication or devotion by Brander, the owner of' the Barefield plantation, of the land marked on Dabney’s survey as reserved or appropriated for a road, and appointed an overseer of it. Moreover, the lots into which the plantation was divided were sold with reference to the convenience of this-projected road, and these vendees have a special interest, and may be considered as having paid a consideration for it. In principle, the case is analogous to that of Briel et al. v. City of Natchez, supra, and Sandford v. City of Meridian, 52 Miss. 380. In the former case there was a formal acceptance-of the streets, which had been reserved by the proprietor in his sale of adjacent lots. There was no error in the admission of the order of the Board of Supervisors in evidence. — 622 — Objection was also made to the competency of the testimony of the witness Allein to prove the agency of the son for his mother by his mere declaration. The question arose in this wise: Allein, a witness for the plaintiffs, had stated that he had seen hands at work building- the fence (that is, the fence across the way claimed as the road), and that John Kinnare, one of the defendants, and Thomas Kinnare, his son, worked on the fence, and then said: “Thomas Kinnare worked on the fence as a hand, and represented himself as agent for his mother, Jane Kinnare.” The action was against both John and Jane Kinnare. The object of this testimony was to make Jane responsible, through the acts of her son and agent. The general rule is that an agency cannot be proved by the agent’s own declaration ; it must first be established aliunde. Whart. onAg\, sec. 162. When this declaration was allowed in evidence, there had been no evidence that Thomas was agent for his' mother for any purpose. Allein had deposed that both John and Thomas did an act complained of as’ tortious. But Jane Kinnare had no connection with the act, unless through her son Thomas. And there was no evidence that Thomas was her agent in this matter, except his verbal declaration,'and that is incompetent. The altercation alluded to in the third assignment of error, in which Allein was prohibited by John and Thomas Kinnare to travel the road, is really nothing but part of the conduct attending the refusal to allow the witness to travel along the projected road. It serves to illustrate the conduct of the defendant John Kinnare ; it was part of the tort at that time done by John, in maintenance of the obstruction across the road. In that sense it was competent evidence. It served to show that the obstruction was not placed on the ground for a temporary emergency, but in dispute and denial of the right in others to travel over the road. There is no error in this ruling. The fourth and fifth assignments are not well taken. The object of the testimony objected to was to show that because of the acts of John Kinnare and his sons the road was not — 623 — worked, and that he deprived those interested in it of its nse. The court properly refused the second instruction asked by the defendants, because it was inapplicable, and would or might have misled the jury. It is doubtless true that the owner of the fee reserved and set apart the road, as marked on the map of the survey, primarily for the convenience of those who might become purchasei’s of the lots ; but it was an offer by him of an easement to the public, also, which was accepted by the Board of Supervisors. The fifth request of the defendant, refused bj^ the court, contains a mixture of truth and error, in so far as it lays down a general rule. There may be a public road, arising out of a dedication by the owners of the fee, if it has been accepted by the public, and that acceptance may be expressed bj^ user. To complete the right in the public, there must be user for such length of time as will preclude the owner of the foe from reclaiming. But the devotion on his part may be irrevocable, by acts done by him — as, by the sale of lots bounded by a reservation for streets, etc., as shown by cases cited in Briel et al. v. Gity of Natchez, supra, and Sandford v. City of Meridian, supra. The acts done by the owner of the Barefield plantation, in ' causing it to be surveyed and divided into small lots, reserving a roadway, and his sales of these lots, with reference especially to the convenience of this reservation to them, and the order of the Board of Supervisoi’s declaring it a public road, and assigning an overseer to work it, was in the nature of a grant of the easement, and an acceptance by public authority, and thereby constituted it a public road. The refusal of the sixth request of instructions for the defendants was proper. ' That request affirms that a public road can only be established by the appointment of commissioners to view the ground, lay out the road, and a favorable report. We have already said that the statutory is not exclusive of the common-law modes of granting, on the one side, and accepting by the public of the easement on the other. — 624 — For the error indicated, the judgment must be reversed. We have forborne to consider how far Mrs. Kinnare (a married woman) would be responsible for tortious acts done by her in the presence of her husband. No point on that subject was made in this court; nor does it seem to have. been raised on the trial in the Circuit Court. Reversed and remanded.