#### STATE v. W. C. DAVIS et al.

(Filed February 19, 1907).

Indictment — Public Roads — Bridges—Lcmd-owner Need Not Keep in Repair When Afterwards Made.

When the public road is made after the land-owner has cut his ditches for draining, he is not required to keep the bridges in repair that are subsequently placed over them.

This was an indictment against tbe defendants, tried before bis Honor, McNeill, J., and a jury, at Fall Term, 1906, of tbe Superior Court of Hyde County, upon a bill charging them with refusing and neglecting to keep up certain bridges in tbe said county. Upon tbe following special verdict tbe Court adjudged that tbe defendants were not guilty, and tbe State appealed.

Speciat. Verdict. — Tbe jury being duly sworn and impaneled in this cause, for their verdict find tbe following to be -the facts, to-wit:

That prior to and at the time of tbe laying out of tbe road and establishing same by tbe Commissioners of Hyde County, Q. M. Davis, tbe father of tbe defendants, W. C. Davis, C. W. Davis, Olivia Mann, and George Davis, owned tbe tract of land over which tbe road was laid out and established, and bad tbe same drained by ditches which were necessary for tbe proper drainage thereof. That Q. M. Davis is dead, and tbe defendants, other than W. D. Mann, who has intermarried with Olivia Davis, are tbe heirs of Q. M. Davis and own and hold tbe said tract of land, which is a farm, as heirs of' Q. M. Davis. That in tbe year 1857 tbe Commissioners of Hyde County, upon petition of Q. M. Davis and others, laid out and established tbe public road set out in tbe bill of indictment over tbe ditch and across the said tract of farm *612land. That at the time of establishing the said road the ditches were used and necessary for the drainage of the said farm, and no ditches alleged in the bill of indictment have been cut across the road since the establishment thereof by the defendants or those under whom they claim. That the owners of the road since its establishment' have maintained and kept the bridges until the last one or, two years.

That at the time of and before the establishment of said road the said ditches were as they now are, and said road was laid out across ditches which at that time and in same manner now drain said farm of defendants. That said ditches do not drain the public, road, and are not necessary to the drainage thereof. That the defendants have failed and neglected to keep said bridges across the said ditches in repair, and same were, at the time this action was commenced, unsafe for public travel. That the overseer of said road gave due notice for ten days to defendants to repair said bridges, and they refused more than ten days, and still refuse, to repair same.

If upon the foregoing facts the Court shall be of opinion as a matter of law that the defendants are guilty, the jury find them guilty; if upon said facts the Court be of opinion that as a matter of law on the said facts the defendants are not guilty, the jury find them not guilty.

No ditches are referred to in this verdict except1 such as may have been cut before- the road was laid out.

Upon the foregoing verdict the Court is of opinion that defendants are not guilty, and so adjudges. The Solicitor for the State excepts to the foregoing judgment and appeals to the Supreme Court.

Attorney-General and W. M. Bond for the State.

Aydlett & Eringhaus for defendants.

*613BR.OWN, J.

It appears that defendant constructed certain ditches through his land for the purpose of draining it; that some-time afterward a public road was established across defendant’s land and bridges placed by the authorities across the ditches.

We know of no law which charges an owner of land with the duty of keeping bridges in repair when the road is established after he constructs his ditches. Section 2697 of the Revisal does not cover this case, but only cases where the owner of the land constructs a ditch across a public road then in existence. The case of Nobles v. Langley, 66 N. C., 287, relied on by the State, is no authority, for the reason that in that case the public road was established before the ditch was dug across it.

Affirmed.