Opinion
No. 27991.
October 28, 1929. Suggestion of Error Overruled November 25, 1929.
1. MUNICIPAL CORPORATIONS. Political subdivision of state is not charged with duty of maintaining thoroughfare unless accepted as public way.
A thoroughfare, whether it be road, street, or alley, in order to be considered in law as public way so as to charge local authorities with duty of maintenance, must have been accepted as such by legally constituted authorities of political subdivision of state sought to be charged with neglect.
2. MUNICIPAL CORPORATIONS. Mere user by public is not sufficient to constitute implied acceptance of thoroughfare as public way and charge city with duty of maintenance.
Mere user by public of thoroughfare, without more, is not sufficient to constitute an implied acceptance of thoroughfare as public way so as to charge city with duty of maintenance.
3. MUNICIPAL CORPORATIONS. Limited use by public of alley and city's maintenance of electric light and using alley for removing garbage did not make city chargeable with duty of maintenance.
Evidence of user of alley in limited way by members of public, and that far back in recesses of alley city maintained an electric light, and that at regular intervals city employees entered therein on foot to remove garbage, did not show implied acceptance of alley as public way so as to charge city with duty of maintenance.
APPEAL from circuit court of Lowndes county. HON. J.I. STURDIVANT, Judge.
Frierson Weaver, of Columbus, for appellant.
A limited use by the public of an alley and the fact that the city maintained electric lights and used the alley for removing garbage did not make the city liable for maintenance of said alley as a public street.
Athey v. T.C.I. R.R. Co. and the city of Birmingham (Ala.), 68 So. 154; Jackson v. City of Greenville, 72 Miss. 220, 16 So. 382; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 773.
Stribling Fraker, of Columbus, for appellee.
Dedication is not required to be made by deed or writing. The intent is its vital principal, and the dedication may be made in every conceivable way that such intention may manifest.
Chattahoochie G.R. Co. v. Pilcher, 51 So. 11 (Ala.); Reynolds v. Lawrence, 40 So. 576 (Ala.); Benton v. The City of Danville, 93 Va. 200, 24 S.E. 830.
A street may exist so as to render the municipality liable for defects therein, though not condemned for public use by legal proceedings, nor established by prescription. The acceptance of a public street may be implied from general and long continued use by the public as of right.
Benton v. City of St. Louis, 217 Mo. 687, 129 A.S.R. 561.
Subsequent repairs by the city after accident is competent evidence that the city recognized the locus as a public street.
Benton v. City of St. Louis, 217 Mo. 687, 129 A.S.R. 561; Osage City v. Larkin, 40 Kans. 206, 10 A.S.R. 186.
A peremptory instruction should be refused when the evidence bearing on the issue is conflicting.
Birchett v. Hundermark, 110 So. 237; Campbell v. Gulf M. N.R. Co., 89 So. 1; Wynnegar v. Southwestern Co., 83 So. 3; Jones v. Knotts, 70 So. 701.
A thoroughfare, whether it be a road or a street or an alley, in order to be considered in law as a public way so as to charge the local authorities with the duty of maintenance, must have been accepted as such by the legally constituted authorities of or for the political subdivision of the state sought, in the particular case, to be charged with neglect. Acceptance may be formal or it may be implied, but it is settled in our state that mere user by the public, without more, is not sufficient to constitute an implied acceptance. And in the case at bar user, in a limited way, by members of the public is the utmost extent of the evidence, save that it is shown that far back in the recesses of the so-called alley the city has maintained an electric light, and that at regular intervals the city employees have entered therein on foot to remove garbage. But these are functions that are to be ascribed to the duties of police and of public health, not to that of maintenance of public ways.
The case, therefore, is controlled by Gulf S.I.R. Co. v. Adkinson, 117 Miss. 118, 131, 77 So. 954, 955, wherein the court said: "A highway is a road or way upon which all persons have the right to travel at pleasure. It is the right of all persons to travel upon a road, and not merely their traveling upon it, that makes it a public road or highway. This right may be acquired in various ways, one of which is by prescription; but in order for it to be so acquired, the road must be habitually used by the public in general for a period of ten years; and such user must be accompanied by evidence, other than mere travel thereon, of a claim by the public of a right so to do. The only evidence of such claim here is that the road was formerly worked by the public road hands of that vicinity, but when, for how long a period, and by what authority, does not appear, so that it is of no value. For aught that appears to the contrary, the travel over the road is by the sufferance or permission of the owner of the land over which it passes" — citing Warren County v. Mastronardi, 76 Miss. 273, 24 So. 199; Burnley v. Mullins, 86 Miss. 441, 38 So. 635; Wills v. Reed, 86 Miss. 446, 38 So. 793.
Upon the record before us, the motion for a peremptory instruction in behalf of the city should have been sustained.
Reversed and remanded.