#### MARTIN WOOLARD vs. M. H. McCULLOUGH.

The common law mode of creating and establishing a public highway, is not repealed by any of our acts of Assembly.

The user of a road as appblic highway, for twenty years, will, under the circumstances of this case, authorize a jury to presume a dedication of the road by the proprietors ofthe soil to the public use.

Where a road is opened by an order of the County Court, according to law in every respect, except that no damages were assessed by the jury to the owners of the land, none but those owners can impeach the order for that cause.

An overseer of a public road can require no hands to work on his road, unless they live within a district which has been designated for him by the County Court, or unless they have been specially assigned by the Court to work on his road.

This was an appeal from the decision of his Honor Judge Bailuy, made at Spring Term, 1841, of Beaufort Superior Court oí Law. The case as transmitted to the Supreme Court was as follows :

This was an action commenced by warrant, before a single magistrate, to recover several penalties for not working on the road. On the trial it appeared; that at March Term, 1838, of Beaufort County Court, the plaintiff was appointed overseer of a road leading from the town of Washington, to the Martin County line ; that he had duly summoned the defendant to work on said road, at several different times, being ten days in all, for himself and his two hands, in the year 1838; that defendant had sent two of his slaves to work on said road, one day during that year. In order to prove the road in question a public road, the plaintiff introduced a petition from the records of the County Court of Beaufort, signed by sundry citizens ofsaid County, filed at February *4331835, a copy of which, with the other proceedings in the case, is herewith annexed, and made a part of this case. The plaintiff introduced witnesses, who proved that more than twenty years ago, the road from Washington for about six miles (the whole distance from Washington to the Martin line was proved to be about eight miles), was reputed a public road, and worked on as such, near which part the defendant lived ; the rest of the distance was a forest. In order to prove the liability of the defendant to work on said road, the plaintiff introduced witnesses, who proved that the defendant resided, in a direct line, about a mile from the nearest point of said road, which at this point was the nearest public road to the defendant, if this is a public road; that the defendant resided within about a mile and an half of another road, which was reputed to be a public road. It was further proved, that, for more than fifteen years, the persons, who succes • sively occupied the premises now occupied bythe defendant) had worked on so much of said road as was then opened. It was also proved, that on one occasion the defendant had told the plaintiff that he would make compensation for the failure of his slaves to work on said road. Upon this proof, the defendant prayed his Honor to instruct the jury that it was necessary to prove the road in question to be a public road, and that it had not been proved ; that, supposing it to be a public road, the defendant was not liable to work on it; also, that, if any part of said road was not a public road, they should find for the defendant, because the charge was for not working on the whole road. This instruction his Honor refused ; but charged the jury that the petition, report of the jury, and orders made by the County Court, were sufficient in law to constitute it a public road; that if the defendant had worked upon the road and lived within a mile of (he same, and nearer thereto than to any other, and had recéived due notice to workupon thesame, he was liable for neglecting or refusing to work, although the County Court of Beaufort had not assigned him to work on the same. The jury returned a verdict for the plaintiff. A rule for a new trial was obtained, which rule was discharged, and a judgment ren*434dered for the plaintiff, from which the defendant appealed.

The documents appended to the case, being extracts from the records of Beaufort County Court, were as follows : 1st. ^ Petiti0* at March Term, 18.03, from sundry inhabitants of that County, praying for a road from the town of Washington, in the course of Broad street, “ till it strikes the main road which passes by Henry S. Bonner’s, and farther; if the jury think proper ; an order thereon for the Sheriff to summon a jury,, “ to alter the road'from the fork ofthe said road leading from Washington to Jamestown,” so asto run “round the fence of Charles Cherry, Sen’r.” which the Sheriff returned “ Executed,” and an order of the Court that a road be run and laid, agreeable to the petition, &c., and that J. C. and others be appointed jurors to attend'the surveyor, &c., which .order was returned by the Sheriff ■“ Executed.”

2dly. At September Term, 1807, of said Court, an order issued to the Sheriff of said County, to summon a jury’ “to extend the new road from the hill at Edward Bonner’s, so as to strike the Jamestown road in the most direct route,” which was returned by the Sheriff, as follows: “Jury summoned and met on the ground; after being duly sworn, proceeded and laid off the road as here required, as will fully appear by their return to Court of the same, under their hands.” The only return exhibited, was an indorsement on the back of the Sheriff’s, of the names of the jurors.

3dly. A petition at February Term, 1835, of sundry inhabitants of said County, praying that a road might be established “ from Hawkins’ bridge, adjacent to the town of Washington, to intersect the Jamestown road leading by, &c ,” (mentioning the names of the owners of land on the route.) Upon which the following order .was entered: “ On motion to the Court, and proof of said petition being made public, and notice given, it is ordered that the said road be altered and changed, so as to run in a straight line from the town of Wáshington, to the place where it strikes or arrives at the Jamestown road, and that a jury be summoned by the Sheriff of this county, to so run and lay off the same, and make peport to the next Court, under a venire, &c.;” to which *435order and venire, the Sheriff and jury made the following return: “We, the undersigned jurors, summoned by Sheriff for the purpose of altering the road running from Washington to Jamestown road, proceeded to alter and turn said road, and run with the old road as it was laid out before, and then a straight line to the swamp, and through the swamp a direct course to the Martin County 'line, througli the plantation of Martin Woolard.” Signed and sealed by the jurors. The Sheriff returned as follows : “In pursuance to the annexed order, I have summoned a jury, and first having had the same duly sworn, they laid off and altered the road as above stated. April 3d, 1835.” Signed by the Sheriff. At April Term, 1835, of said Court, the following order is entered : “ On proof of advertisement made and ordered, it is ordered by the Court, upon hearing the report of the Sheriff and jury, made on laying off said road, that said report is deficient in not valuing the damage, if any, sustained by the proprietors, through whose land said road is to run, and that the said report be re-committed to the Sheriff for.amendment; or that a new order to said Sheriff to lay off said road again, and assess the damages to the proprietors, if any, on proof of advertisement made as ordered, that the road be layed off as prayed for.” Another order at the same Term, in the following words : “ On proof of advertisement made as ordered, it is considered by the Court, upon hearing the report of the Sheriff and jury, made on laying off the road, that said report is deficient, in not valuing the damage sustained, if any, by the proprietors, through whose land said road is to run; and that the said report be re-commit'ted to the Sheriff.” Upon this order, there was no return made by the Sheriff. At July Term, 1835, of said Court, the following order was made : “ Ordered that the report made to the last Term be confirmed.”

J H. Bryan for the plaintiff.

No counsel for the defendant.

Daniel, J.

The first question to be decided in this case*436¡S) whether the proofs offered were in law sufficient to estab^le waY to *-le a highway or public road. We will begin by remarking, that the common law mode of creating and establishing a public highway, is not repealed by the first section of our road law, nor by any other act of Assembly. Six miles of the road had, for more than twenty years, been re-pitted to be, and had been used as a public road. This evidence was sufficient, in our opinion, to go to the jury for them to presume the fact, that the way had been dedicated to the public as a highway, by the proprietors of the land over which it ran. With respect to a claim of highway, in the words of Hale, C. J. “ much depends on common reputation.” 1 Yent. 189. And if the owner of land permit the public to pass and repass over his soil, and use it as a public highway, withont molestation, or any assertion of his rights for some time, the law will presume a dedication of the way to general use. Much discussion has arisen as to the period which must elapse, before such a dedication will be presumed. Woolrich on Ways, 9 to 14. Jarvis v. Deans, 3 Bingh. 447. We think, however, that twenty years user, under such circumstances as those stated in this case, will authorize a jury to presume a dedication. The two remaining miles of road were opened agreeably to law, with the single exception, that the jury did not assess damages to the proprietors, over whose lands the road run. This error, however, is not one of which the defendant can avail himself in this collateral way. The proprietors might complain, but third persons cannot. And non constat but that the proprietors may have abandoned their claims to damages, before the order confirming the report of the jury had been made by the Court.

Secondly ; Was the defendant liable to be summoned to work on this road? The act declares, (Rev. St. c. 104, s. 10,) “ that it shall be the duty of the overseers of the public roads, to summon all white males between the ages of eighteen and forty-five, and free males of color, and slaves, between the ages of sixteen and fifty, within their districts, *437&c.” The Legislature has put the public roads, and the overseers'of the same, mainly under the supervision of the County Courts; and although the act has not said expressly how the overseers’ districts are to be laid off, or by whom they are to be established, yet it seems to us but fit and proper, and the Legislature must have so intended it, that the Courts which were entrusted with the general supervision of the highways, should be clothed with the power of laying out the overseers’ districts. Great disputes and disturb' anees in neighborhoods will be prevented by this construction of the act. The general, though not universal practice through the State, as we learn, has been in accordance with this opinion. The plaintiff was an overseer without hands; he should have made application to the County Court for a list of hands, or an assignment of a district. The defendant’s hands had never been assigned to that road; his lands were not comprehended by the Court in a district of the defendant, as overseer of the said road. We therefore are of the opinion, that the judge erred in his charge on this point of the case, and that there must be a new trial.

Pee Cueiam, New trial awarded.