Z. Cross v. The State

Z. Cross v. The State. Trespass After Warning. (Decided June 30, 1906. 41 So. Rep. 875.) 1. Highways; Public Lands; Prescription. — Under Rev. Stat. U. S. § 2477 (U. S. Comp. St. 1906, p. 1567) a roadway used by the public over public lands for 20 years does not become a public highway by user or prescription, the use being presumed to be permissive, and not adverse to the government. 2. Trespass; Offense; Evidence. — The fact that the prosecutor agreed with a third person on the day of the alleged trespass after warning that prosecutor was leaving the road open until it was determined whether cr not he had the right to close it, was inadmissible as.offering no defense or excuse for a trespass by defendant. 3. Same. — The fact that prosecutor gave another permission to haul lumber over this road after he had warned defendant not to trespass on it, was immaterial as furnishing no excuse or defense to defendant’s trespass. 4. Highways; Establishment; Mode. — A highway becomes such only by dedication, prescription, or proper proceedings before and by the courts of County Commissioners or Boards of Revenue. 5. Witnesses; Bias. — It was competent, on cross examination of defendant, to show that he had sworn out a warrant for prosecutor’s arrest, as bearing upon defendant’s bias. 7. Criminal Law; Trial; Order of Proof. — It is within the discretion of the court to permit a witness, over defendant’s objection, to be re-examined in rebuttal. 8. Same; Evidence; Competency Established by Admission of Other Evidence. — Where it was shown by defendant that the roadway in question was the only way of reaching the railroad station from defendant’s saw mill, it was competent to permit evidence that prosecutor, after closing old way, cut a new way which was used by people to reach points to which the old roadway led. 9. Same; Instructions; Exceptions. — Exception tafeen- to an uncompleted sentence of the court’s oral charge is not available on appeal. Appeal from Bessemer City Court. Heard before Hon. Wm. Jackson. The prosecution was begun by warrant and affidavit. The facts sufficiently appear in the opinion. The court in its oral charge said : “Evidence upon the part of the state shows defendant on the 8th day of August passing along on the property of Vandeford.” There, was objection to this statement. Further charging-the jury orally, the court said: “I charge you as a matter of law that there are only three ways in Alabama to establish a public road; that, one is by board of revenue or county commissioners, one by dedication, and one by prescription. A public road must be a road either authorized by hoard of revenue or county commissioners and to establish it the law requires an application must be made to the hoard of commissioners. Such application must be made by petition and at least 30 days’ notice of the intended application must be given by advertisement at the courthouse door and at three, other places in the county, two of which should be in the immediate neighborhood of the place, where road is to be established. The court must then issue a notice to seven disinterested householders of the cbunty to view out the road and mark out the route for such proposed road and assess the value of the lands of the landowners; then mark out the route of the road and return their report to the. court under oath, and a day is set for the hearing of the same; or a public road may be dedicated by the owner of the land through which it passes; or by prescription — prescription is the claim or title, to the land or road by virtue of immemorial use. or enjoyment — the right of title acquired by possession during the time and in the manner fixed by law.” Further charging the jury orally, the court said: “I charge you, regarding the United States statute law, that the statute only gives permission, and it is only permission by the government, to enter on public land to establish a highway; but before it becomes a public road the state law would have to be applied, and before it could become a public road the state authorities would have to take hold of it and make it a public road according to* the law of the state.” The jury retired and returned and stated to the court that they desired instructions on one point in the case — if the continued use of the road 20 years or more by the people would make it a public highway over the public land. The court replied : “I charge you as 8 matter of law that under the United States statute a road used for 20 years or more while the land belonged to the government or ivas a part of our public domain would not make it a public road, unless it was so made by the laws of Alabama, and that it must be established by the laws of the state of Alabama and authorized in-this Avay or it could not be a public road.” Exceptions were reserved by the defendant to all these instructions. ■ At the request of the state, the court gave the following written charge: “The court charges the jury that under the undisputed evidence in this case they should convict the defendant, unless they are reasonably satisfied that he had a legal 'cause or good excuse for entering upon the premises of Van deford at the time for which he is prosecuted.” A number of charges were requested by the defendant, and refused, which are not necessary here to be set out. Pinkney Scott,' for appellant. Counsel discussed assignments of error relative to the admission of testimony but cites no authorities. The court erred in its oral charge in stating- to the jury the tendencies of the State’s evidence.- — McIntosh v. State, 140 Ala. 187. The Court erred in its oral charge to the jury as to hoiv a road may become established. — Hainesworth r. State, 1.36 Ala. 19. The court erred in its oral charge to the jury with reference to the United States statute authorizing the establishment of public highways across public lands. — Smith v. Mitchell, 21 Wash. 536; Wallowa// Oo. v. Wade, 43 Oregon, 253. Sec. 2477 Fed. Stat. Vol. 6, -p. 498, and cases cited in notes thereto-. Our laws recognize prescription as one of the modes of establishing a public highway. — MoDadc v. State, 95 Ala. 28; Western Tty. of Ala. v. Ala. Gt. R. R. Co., 96 Ala. 272. The right to acquire a highway under a Fed. Statute has been declared to exist in this State —Tenn. R. R. fío. v. Taylor, 102 Ala. 224. Under the above a itthorities the cliarges given to the State and the charges refused to the defendant were erroneous. Massey Wilson, Attorney-General,, for State. Sec. 5602 of the Code does not relieve defendant of guilt in this case. Witness Greene was rightfully permitted to testify that a certain person was in possession of the land.' — Wright v. State, 136 Ala. 139. -It ivas discretionary with the court to permit a re-examination of Greene. —Iirahatm v. State, 38 Ho. 919. The portion Of the oral charge excepted to is a part of an incomplete sentence and cannot, for that reason, be reviewed. — McNeil v. State, 102 Ala. 1.21. The portion of the oral charge in reference to the. creation of public highways was correct. —Harper v. State, 109 Ala. 66; Lew-man v. Andrews, 129 Ala. 170. Section 2443, et. seq., Code 1896. The evidence showed that no acceptance of the grant by the government had been made by the State, or County of the roadway over the public lands.' — Streeter v. StallmaLer, 61 Neb. 205; Rolen v. Hmrich, 99 N. W. 464; Schic-erdtle v. Placer County, 108 Cal. 589; Keene v. Fair-view, 8 S. Dak. 558; 9 A. & E. Ency. of Law, 72. Charges refused to the defendant were rightly refused. "The excuse attempted to be set up in this case was not sufficient under the statute. — Wilson v. State, 87 Ala. 117. [MAJORITY — DOWDELL, J.] DOWDELL, J. The prosecution in this case was commenced on affidavit and warrant, in which the defendant was charged with trespass after warning. The evidence without dispute showed that the prosecutor, Vandeford, was the owner and in possession of the land at the time o,f the alleged trespass, and that he had warned the defendant prior to the alleged trespass and within six months not to go upon the land. The land was entered by the prosecutor as a homestead, the same being government land, six years prior to the alleged trespass, and the prosecutor had built upon and improved the same and perfected his right of entry in 1904. While the land ivas yet government land, a roadway traversed the same, which had been used and traveled by the people of the vicinity for more than 20 years. It was not shown to have ever been recognized by any act of the county .is a public highway. Did it become one by its being used and. traveled by the people of the vicinity and the public generally for more than 20 years? We think not. Such use will be presumed to have been permissive, and not adverse to the government. The federal statute (section 2477 of the Revised Statutes of the United States (IT. S. (k>mp. St. 1901, p. 1567), which provides that “the -ight of way for the construction of highways over public lands not. reserved for public uses, is hereby granted.” cannot be construed to mean that a roadway used by the public over government land may become a public highway from mere user or by prescription. The purpose of this statute is to authorize the construction of highways over public lands not reserved for public uses, by authority of law; that is, by the laws of the state or territory in which the lands are situated. There was no error in the court’s ruling on the objections to the questions asked the witness Yandeford by the defendant on cross-examination, in which it was sought to be shown that the prosecutor agreed with one Russell, on the morning of the 8th day of August, 1905, the day of the alleged trespass, that he (the prosecutor) would leave the road open until it was settled whether he had the right to close it or not. It was not pretended that any such understanding or agreement was made with the defendant, and it certainly furnishes the defendant no legal cause or good excuse for going upon the prosecutor’s land after he had been warned not to do so. There was no error in refusing to allow the defendant to prove that the prosecutor told the witness J. H. Russell, in the presence of Tom Russell and others, on the 19th day of August, that he had agreed to leave the road open until that day. The fact that the prosecutor gave'Charlie Sellers permission to use and haul lumber over the road furnished no excuse to the defendant for going upon the land after he had been warned not to do so. There was evidence on the part of the defense tending to show that the old roadway in question was the only way of reaching" Ivimbell, a station on the railroad, from the defendant’s sawmill. This evidence being offered by the defendant, it was not error to permit the state to show by the proescutor that, when he closed np the old roadway, he cut a new roadway, which could be and was used by people to reach the points to which the old roadway led. It is not reversible error to permit immaterial evidence to be rebutted by immaterial evidence. There was no1 error in allowing the state, on the cross-examination of the defendant as a witness, to show that he (the defendant) had sworn out a warrant for the arrest of the prosecutor. This evidence was competent for the purpose of showing bias or feeling on the part of the witness. There was no error in allowing, against the .objection of the defendant, the re-examiniation of the witness Green in the rebuttal. This was a matter in the discretion of the court and is not revisable. — Braham v. State, (Ala.) 38 South. 919. The first exception reserved to a part of the oral charge of the court to the jury, as set forth on page 19 of the record, shows that the portion excepted to is a part of an uncompleted sentence. We are unable to review this part so excepted to, for the reason that we are unable to say, in the absence of the omitted part of the sentence, what was the statement of the law by the court to the jury. — McNeill v. Stale, 102 Ala. 121, 15 South. 352, 48 Am. St. Rep. 17. The court, in its oral charge as to what was necessary to establish a public road or highway, correctly stated the lave — Harper v. State, 109 Ala. 66, 19 South, 901; Lewman v. Andrews, 129 Ala. 170, 29 South. 692; Code 1896, § 2443. On the undisputed evidence in this case the court committed no error in giving the general charge at the request of the solicitor. The court’s action in refusing the several written charges requested by the defendant was free from error. — Wilson v. State, 87 Ala. 117, 6 South. 394. . We find no error in the record of which the appellant can complain, or that is injurious to the appellant, and the judgment appealed from ivill he affirmed. Affirmed. Weakley, O. J., and Haralson and Denson, JJ., concur.