Jackson vs. The State.

It appears that the road, at the point where the alleged obstruction by plaintiff in error exists, was originally opened through woodland by the owner of the land, for his own use and convenience, for the purpose of hauling corn from an adjoining farm.

The land through which this part of the road passes, appears to have remained uninclosed all the time, so far as we can discern from the evidence. About one

hundred and fifty yards from the obstruction made by plaintiff in error, there is a deep gully in the road, which has rendered it impassable for wagons, for twelve years, and with difficulty can be passed by horsemen. It appears that (at some time) a tree which had fallen across the road, was removed by some one. The road has never been opened or recognized by the County Court in any manner, as a public road; and the only question which it is now necessary to consider, is,

whether this road, where the alleged obstruction by plaintiff in error exists, has ever in any way, been dedicated to the public use by the owner of the land over which it passes. That a right of way may be claimed by a dedication to the public use by the owner of the land, is well settled; but it was held by this Court, in the case of Worth vs. Dawson & Fowler, 1 Sneed's Rep., 9, that this doctrine must be cautiously admitted.

In Angel on Highways, second edition, sec. 151, reference is made to this case, and also to the case of Scott vs. State, in 1 Sneed R., 629, with other authorities; and the law is thus laid down on this subject After making mention of roads through government lands, it is there said: "Upon much the same prin ci

Jackson vs. The State.

ple it has been decided that dedication of a road to the public, over the waste and uninclosed lands of an individual, ought not to be inferred from bare user alone. Thus, where a road which had been in existence for more than fifty years, had originally passed entirely through woodland, the jury were instructed that mere user by the public, however uninterrupted and long continued, would be insufficient to constitute it a public road, but must be accompanied by acts which showed the use to have been claimed as a right, and not by permission of the owner; such as working on it, keeping it in repair, and requiring the removal of obstructions." In same section, it is also said: "And even though the land be inclosed and cultivated, dedication is not to be presumed so readily of agricultural, as of other property. Thus it has been held, that the bare fact that a farmer leaves a lane through his farm, for his own convenience, and permits the public to use it as a highway for fifteen years, does not warrant the inference of dedication. An intention to dedicate must be obvious, and the same acts which would warrant the inference in cities and towns, would be quite insufficient in sparsely settled agricultural districts."

Applying the principles here enunciated to the facts of the present case, we do not think there is sufficient reason to say there has been a dedication of the land over which this road passes.

At and for some distance from the Knoxville and Jacksborough road, this road has been closed for seventeen years, without objection so far as we can see from this record. At the other end of the road, within

one hundred and

plaintiff in error

there has been a

Jackson vs. The State.

fifty yards of the place where the
extended his fence over
the road,

gully so deep as to prevent wagons
One witness speaks of

from passing for twelve years.

being under the necessity, when traveling on horseback, to get down and lead his horse, in order to pass it, about eight years ago.

With the of a tree

There is no act, whatever, shown in the evidence, tending to show an intent on the part of the owner of the land, to dedicate it to public use. exception of the removal, (by some one,) which had fallen across it, there is nothing a claim of dedication to the public can be predicated outside of bare user.

upon which

The Court charged the jury, "that a road may become a public road by long usage, say seven, eight, or ten years, by the public, if the owner of the lands. through which the road passes, sits quietly by and permits the same to be used by the public, as a public road, without making any objections to its use as such public road." These instructions applied to the facts

of the present case, are erroneous.

Let the judgment be reversed and the cause manded.

re

Carter vs. The State.

CARTER vs. THE STATE.

CIRCUIT COURT OF KNOX COUNTY. Jurisdiction of, to punish for assaults. The Circuit Court of Knox County may punish a defendant for an assault and battery, where he is acquitted of a felonious assault, but convicted of an assault. The Acts of 1858 and 1860, giving exclusive jurisdiction in all misdemeanors, to the County Court of Knox County, does not repeal section 5223 of the Code, and oust the Circuit Court of its right to punish, where the defendant is acquitted of the felonious charge and convicted for a misdemeanor.

FROM KNOX.

The plaintiff in error was indicted in the Circuit Court, for an assault with intent to kill, etc. At the June Term, 1868, he was acquitted of the felony, and found guilty of an assault, and fined by the Court. Judge ELIJAH T. HALL, presiding. The record is filed for error.

J. L. ABERNATHY, for Carter.

THOS. H. COLDWELL, Attorney-general, for the State.

ANDREW MCCLAIN, J., delivered the opinion of the

Court.

The plaintiff in error and Rush Pate, were indicted in the Circuit Court of Knox County, for an assault, with intent to commit murder in the first degree.

Carter vs. The State.

They plead not guilty-were tried and acquitted of the felony, but found guilty of an assault, and were fined jointly, twenty-five dollars. Pate has made his escape; and the cause, at the instance of Carter, has been brought into this Court by a writ of error.

It is insisted, that, by the Act of 1858, ch. 90, sec. 4, amended by Act of 1860, ch. 120, secs. 5 and 6, the County Court of Knox County has exclusive jurisdiction of misdemeanors committed in Knox County; and that, therefore, the Circuit Court had no jurisdiction to try and punish them for a misdemeanor. We think this objection is not well taken. Section 5223, of the Code, provides, that "any person indicted for assault with intent to kill or to commit any other felony, may be found guilty of an assault or assault and battery, as the case may be."

We do not think
Acts of 1858 and

This is the law of the land. the Legislature intended, by these 1860, to except from the operation of this section of the Code, such persons as may be indicted in the Circuit Court of Knox County for an assault with intent to kill or to commit any other felony.

Let the judgment be affirmed.