#### THE STATE vs. JOHN JOHNSON.

Where n charter has been granted for a turnpike road and the road opened the County Court has no right to convert it into a public road, unless the charter has been duly surrendered, or, from a non-user for twenty years, a dedication to the public may be presumed.

Even in such ease the road can only be made a public road in the manner prescribed by the Act of Assembly. The mere appointment of an overseer will not be sufficient for that purpose.

The caso of Wilson v. Baker, 3 Ire. 163, cited and approved.

Appeal from the Superior Court of Law of Yancy County, at the Spring Term 1S50, his Honor Judge Bailey presiding.

The defendant was indicted as an overseer of a public road for not keeping the same in repair.

Upon the trial, the jury found the following special verdict:

That there is a public road, leading from the County of Burke through the County of Yancy to the Tennessee line, and that the same has been used by the citizens for the space of nineteen years, that said road was made by Isaac T. Avery in 1S29, by virtue of a charter granted him by the Legislature of North Carolina in 1827 and ’2S, which charter authorized said Avery to erect toll gates on said road when completed, and exact toll from persons travelling the same: that gates were put up and tolls collected for the first four years, but for twelve years past, the gates have been removed and no tolls taken: that the said Avery was wil-J'ng and desirious to surrender said road to the County, it being an expense to him, and wished overseers appointed *648by the County Court for the purpose of keeping the sama in repair: that application was made to the County Court by citizens of the County, to appoint overseers over said road •, that overseers were appointed accordingly and hands allowed to work said road : that the present defen* dant was appointed overseer over part of said road, a distance of about six miles; that the land over which the said road passes, belongs to the said Avery; that his hands, together with other persons, were allotted by the Court, to work under the defendant as overseer: that the said Avery acquiesced in the said appointment and allotment, of hands, and his hands worked under the said defendant as overseer by the consent and approbation of the said Avery: that a part of the said road, leading from Burke County to the Tennessee line, passed over land be1 longing to other persons : that the defendant was duly notified of his appointment: that he has failed to keep the said road, over which he is overseer, in good repair, but suffered the same to become ruinous, miry, and in great decay, for want of due reparation and amendment,— But whether upon the whole matter aforesaid the said John Johnson be guilty of the misdemeanor in said ind'etment specified and charged upon him, the said jurors are ignorant, and pray the advice of the Court thereupon, and if, upon the whole matter aforesaid, it shall appear to the Court, that he is guilty of the misdemeanor, in manner and form as charged in the bill of indictment, the jury find him guilty — otherwise, net guilty. The Court being of opinion against the defendant, it was ordered and adjudged, that he pay a fine of five dollars. With which judgment the defendant being dissatisfied, prayed an appeal to the Supreme Court, which is granted.

Attorney General for the State.

Avery, for the'defendant.

*649Pearson, J.

Baker v. Wilson, 3 Ire. 168, settles this case. There, certain engineers, in the service of the United States, had surveyed and marked out the line of a road, contemplated to be made by the Federal government. The government abandoned the road, and the County Court of Yancy, availing itself of the survey an 1 location which had been made, passed an order, that the plaintiff, Baker, oversee the road, from the top of the mountain, &c., and assigned hands; among others the defendant, who refused to work, and was warranted for ihe penalty. The Court decided in his favor, on the ground, that the road had not been established according to law, a common public highway, whieh the inhabitants were bound to keep up. “Gastqk, J. Our laws are explicit in requiring no newroad shall be laid out, but by a judgment of the Court upon notice, and a petition filed, and allows an appeal by any person dissatisfied with the judgment. Rev, St. ch. 104, and sees. 2 and 3. These provisions would be substantially annulled, if the mere appoint-mentof an overseer and assignment of hands toa supposed road were to be held, per se, a judicial determination that a public road be laid out. when none before existed. Sue’han o der may he-pruna facie evidence of the existence of the road, but it is competent for the inhabitants when sued, for refusing to work, or for the person appointed overseer, when indicted for not putting the road in order, to shew that there is no such road to be made or repaired.”

The defendant is indicted as an overseer, for neglecting to keep the road in repair. He says there is no such common highway, and that the order in the County Court was void and of no effect. The facts are, that, in 1827, the Legislature authorised certain commissioners to lay off a road, which road was vested in "Col. Avery for twenty-five years, he undertaking to make and keep it in repair, for and during that time, in consideration of *650the exclusive privilege conferred on him of taking tolls and owning it as a turnpike road. The.road was accordingly made and gates erected and toll received for some four years, when Avery threw open his gates and allowed any one to travel along it who chose, and he expressed a willingness that the County might take it as a County road. This state of things continued for about 12 years, when, the County Court, without a petition being filed, and notice given as the statute requires, made an order, appointing the defendant overseer, and assigning hands.

We agree with the defendant, that this is not a common public highway, which the inhabitants are bound to keep in repair. It was chartered and originally made as a turnpike, and it has not been changed into a common County road, by any such proceeding, as the law requires. Avery, by non user, has subjected his franchise to forfeiture ; but it is not in fact forfeited, and the right divesled. That can only be done by judgment on sci fa; on the same principle that an estate of land can only be defeated by force of a condition upon actual entry.— There has been no surrender of the franchise ; that could only be, with the consent of the legislature, the grantor; and there has been no “dedication” of the road to the public. A dedication, like most other matters, can only be effectual with the consent of both parties. Avery we will suppose willing to make the dedication ; still it 1 as not been accepted by the proper authority, acting for and on behalf of the public; and admitting, that, hada pi tition been filed in the County Court, setting out a wish to dedicate, and praying that it might be established as a common public road, and due notice, wi th the right of appeal according to thestatufe, that the proceeding wou’d have been effectual to make it a common public road; 8 i I that has not been done. And admitting that if the publio had used it as a road and the County Court had so *651recognised it, by the appointment of overseers and hands to keep it in repair for twenty years, which is the shortest time, that there would then have been the presumption of a dedication; still that has not been done, and so there has neither been an express nor an implied dedication. Several cases were cited, as to the manner.of dedicating streets, by laying off and settling lots in towns. Those eases have no bearing, because the manner of establishing County roads, is expressly regulated and provided for by statute.

The case may be looked at in another point of view.— The franchise has never been divested out of Avery. Suppose the defendant had gone on and put the road in good repair, and Avery had then erected his gates, as he might have asserted a right to do ; it would have presented a strange state of things ! Or suppose the solicitor had sent a bill of indictment against Avery for not beeping his road in repair, as he had undertaken to do, for the term of 25 years, and that and the present indictment were called for trial at the same time — a strange state of things would have again been presented; and yet. there is no question, that Avery has, during all this time, been liable to an indictment. If he made abad bargain or “missed his calculation,” he ought to have petitioned the legis. Ja ture to accept a surrender.

It was probably expedient to have this road, provided those whd used it, would pay for making and keeping it In repair; but non constat that it is expedient to establish the road, if the labor of a sparse population is to be taxed to keep it up.

The judgment in the Court below must be reversed and judgment for the defendant.

Per Curiam. Judgment reversed and judgment for the defendant.