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a road overseer for failure to keep his road in proper repair, which does not charge that he "wilfully neglected" to repair his road, can not be spported under this section. The clause providing that "if any overseer shall fail to discharge any of the duties imposed by this chapter he shall be guilty of a misdemeanor," has reference to the discharge by overseers of the particular and numerous duties prescribed in that chapter of The Code, and such chaptr does not prescribe particularly that overseers shall keep their roads in proper repair. Miller, 100-543.

HOW OVERSEER RELIEVED OF HIS DUTY.-An overseer can not free himself from his duties by simply surrendering his order of appointment to the clerk of the board of township trustees. Long, 81-563.

An overseer is not relieved at the end of a year except by order of the board and on showing that his road is in the condition required by law. He continues to be responsible until his successor is appointed. Long, 81-563.

SIGN-BOARDS.-An overseer is indictable for failure to put up sign-boards under section 2030 of The Code. Nicholson, 6 (2 Murph.), 135.

The overseer is indictable for failure to keep sign-boards as directed by the statute. Nicholson, 6 (2 Murph.), 135.

ASSUMING TO BE OVERSEER.-One who assumes to be overseer of a road and acts as such by summoning hands and superintending them is indictable for failure to keep the road in good order. Long, 81-563.

The fact that one professed to be the overseer and acted as such may be shown by parol, and the record of his appointment need not be shown. Long, 76-254.

OVERSEER MUST BE NOTIFIED OF HIS APPOINTMENT.—In an indictment against an overseer it is necessary to show that he has been served with a notice of his appointment ten days before the offence charged. Everett, 4 (2 Car.), 633 (436).

Sec. 569 (2019). When overseer to summon hands to work roads; notice; duty of persons summoned; proviso. 1879, c. 82, s. 5. 1880, c 30, s. 3. The overseer of the road shall, as often as the road shall require, subject to the limitation in the preceding section summon the hands of his section to work on the road, but the said hands shall not be required to work continuously for a longer time at any one time than two days, and at least fifteen days shall intervene between workings, except in case of special damage to the road, resulting from a storm. The notice shall be at least three days before the day named for the work, and shall state the hour and the place for the meeting of the hands, and what implement the hand shall bring with him. Every person liable to work on the road who has been so summoned shall appear at the time and place named, and with the implement directed, and shall work on the road under the direction of the overseer until discharged by him: Provided, that no hand shall be required to work for a less time than seven hours nor a longer time than ten hours in any one day. Any person summoned as aforesaid who shall, by twelve o'clock of the day preceding the one appointed for work on the

road, pay to the overseer the sum of one dollar shall be relieved from working on the road for one day. The money thus collected by the overseer shall be by him applied on the working and repairing of the road: Prorided further, that any person who shall furnish one able-bodied hand as a substitute, with the implement directed, shall be held to have complied with this chapter.

Sec. 570 (2020). Failure to attend and work misdemeanor; fine and costs. R. C., c. 101, s. 11. 1817, c. 935, s. 2. 1825, c. 1287. 1879, c. 82, s. 6. 1885, c. 392.

Any person liable to work on the road who shall fail to attend and work as hereinbefore provided when summoned so to do, unless he shall have paid the one dollar as aforesaid, shall be guilty of a misdemeanor, and fined not less than two dollars nor more than five dollars, or imprisoned not exceeding five days, and if any defendant shall be unable to discharge the judgment and costs that may be recovered against him, the costs shall be paid by the

county.

WHO LIABLE TO WORK.-Section hands working on our railroads at regular wages are not thereby excused from working our public roads. Cauble, 70--62.

A road hand can not excuse himself from aiding to repair a bridge over a ditch across the road on the ground that it is the duty of the person who cut the ditch to make a bridge over it and keep it in repair. James, 75-393.

WHO LIABLE TO WORK.-A man who pursues a vocation in this state for an indefinite period is liable to road duty although he is a citizen of another state, to which he intends to return when he finishes his present employment. Johnston, 118-1188.

The fact that defendant had no occasion to use the road to which he was assigned to duty is no defence. Gillikin, 114--832.

ASSIGNMENT OF HANDS.-The assignment of one liable to road duty to any particular road rests with the supervisors of the township. Gillikin, 114-832.

EXEMPTION FROM WORK.--Section 25, chapter 147, acts of 1852, which exempts the officers, servants and employees of the Fayetteville & Western R. R. Co., (now the C. F. & Y. V. Co.), incorported thereby, from working on the public roads, is constitutional. Womble, 112-862.

Such exemption being in a private act is not repealed by section 2017 of The Code, since by section 3873 of The Code it is provided that "no act of a private or local nature shall be construed to be repealed by any section of this Code." Ibid.

JUSTICES NOT INDICTABLE.-Justices of the peace are not indictable for failure to keep the public roads in repair. This is the duty of the overseer. Britt, 118-1255.

ROAD MUST BE ACCEPTED.-The owner, by executing a deed to the public conveying the right of way to a highway, can not compel the authorities to assume the burden of repairing it unless it is accepted. Fisher, 117733.

WARRANT.-A warrant for failure to work the roads which fails to allege that defendant had been duly assigned and was liable to work that par

ticular road, and had been properly summoned, is fatally defective. Smith, 98-747.

Where the warrant simply charges that defendant "wilfully refused to attend and work on the public road after being lawfully warned," without negativing the payment of one dollar, the judgment must be arrested. Neal, 109-859.

A warrant for failure to work a public road is fatally defective if it fails to conclude "against the form of the statute." Luther, 77–492.

A warrant for failure to work the road is fatally defective when it fails to state in what county the offence was committed, that the person summoning defendant was the overseer, that defendant was liable to work on the public road and had been assigned to that one, and that does not negative the payment of one dollar in lieu of services. Pool, 106-698.

CORPORATIONS-TURNPIKE COMPANY.-A plea of not guilty to an indic'. ment against a corporation, is an admission of its corporate existence by the name specified. W. N. C. R. R. Co., 95-602.

The existence of a corporation may be shown by proof that it has officers, exercises corporate functions, and holds itself out to the world as such. Ib.

The officers of a duly incorporated turnpike company can not relieve themselves of the duties and liabilities to the public by an attempted surrender of their franchises to the board of county commissioners. Such surrender must be made to the state in some authorized way, nor will an abandonment by the corporation of its franchises work a discontinuance of the highway. Ib.

Sec. 571 (1717). No railroad, plank road, etc., to be established, but by law; penalty and misdemeanor therefor. R. Č., c. 61, s. 37. 1874-’5, c. 83. If any person or corporation, not being expressly authorized thereto, shall make or establish any canal, turnpike, tramroad, railroad or plank road, with the intent that the same shall be used to transport passengers other than such persons, or the members of such corporation; or to transport any productions, fabrics or manufactures other than their own, the person or corporation so offending, and using the same for any such purpose, shall forfeit and pay fifty dollars for every person and article of produce so transported; and shall, moreover, be guilty of a misdemeanor, they and all persons aiding therein, and shall be indicted therefor in the superior or criminal court.

Sec. 572 (2021). Overseers to report to board of supervisors; report to be verified; warrant to issue against road hand failing to perform duty. 1879, c. 82, s. 7. 1880, c. 30, s. 4.

Every overseer shall at each and every meeting of the board of supervisors of his township make report to them of the present condition of his road, of the number of days worked on his section since last meeting, of the number of hands who attended and worked each day, of the number and names of hands who failed to attend and work; whether or not they were legally summoned, and

whether or not they paid the one dollar as provided. The said overseer shall before some person authorized to administer an oath, make written affidavit that the report is true and correct. Upon this report sworn to as aforesaid, if it shall appear that any of the hands, after being legally summoned, have failed to attend and work on said road, and that they did not pay the one dollar, then it shall be the duty of the said supervisors, or any one of them, to issue a warrant for the arrest of any such hand, and shall put him upon trial for the offence: Provided, that nothing herein contained shall prevent the overseer of the road from prosecuting at any time after the offence has been committed, any hand for failure to work on the road, and such cases of prosecution shall be stated in his report to the board of supervisors, that they may not prefer another prosecution for the same offence.

Sec. 573 (2065). Obstruction of road, etc., a misdemeanor. 1872-'3, c. 189, s. 6. 1883, c. 383.

If any person shall wilfully alter, change or obstruct any highway, cartway, mill road or road leading to and from any church or other place of public worship, whether the right-of-way thereto be secured in the manner herein provided for or by purchase, donation or otherwise, such person shall be guilty of a misdemeanor, and fined or imprisoned, or both.

Any person who shall hinder or in any manner interfere with the making of any road or cartway laid off according to this chapter shall be guilty of a misdemeanor, and punished by fine or imprisonment, or both, at the discretion of the court.

INDICTMENT. An indictment for obstructing "a certain public road and common highway" in the county, without specifying its particular location and terminal points more particularly, is atally defective. Crumpler, 88-647.

Where an indictment against a railroad company charges that the company obstructed a public road "by placing in and across it certain plank," and the proof is that a dangerous hole in the crossing was occasioned by the slipping down of a plank used to raise the highway to a level with the railroad and was permitted to remain for a week or two, the variance is fatal. Roanoke Railroad and Lumber Co., 109-860.

Where the indictment is for obstructing a public highway" and the proof is that it was a "private cartway," the variance is fatal. 86-681.

Purify,

PRESUMPTION OF GRANT FROM 20 YEARS' USER.-The owner of land over which a road runs, which has been used by the public for twenty years, is indictable for keeping up a fence across the road, though he did not originally erect it. Hunter, 27 (5 Ired.), 369.

Where the owner appropriates land for a public highway much less time than twenty years will suffice to make it a public road, for it is rather the intention of the owner than the length of the user which must determine the fact of dedication. Marble, 26 (4 Ired.), 318.

A road used for 60 years as a neighborhood road by persons going to and from church, and to mill during high water, but never established as a public road by legal proceedings, dedication or by user, accepted and recognized by competent authority, being kept up by voluntary labor on the part of those using it, and always under the control of the owners of the land over which it passes, is not a public nighway. Gross, 119-868.

In the absence of a laying out by public authority, or actual dedication, it is essential, in order to constitute a church road which it is indictable to obstruct, not only that there must be a user for 20 years, but the road must have been worked and kept in order by public authority. Lucas, 124-124.

A road one mile long from ten to fifteen feet wide, leading from a public highway to a church and used by the people of the neighborhood for sixty years in going to and from church, and which connects with a county road leading to a mill and to a railroad station, but which has never been under the charge of an overseer, nor worked by the public, is not a public highway so as to subject one to indictment for obstructing it. McDaniel, 53 (8 Jones), 284.

A neighborhood road used by the general public for more than forty years, but never laid out according to legal proceedings, nor dedicated, nor worked by the public, is not a public highway the obstruction of which is indictable. Lucas, 124-804.

The mere use of a way for twenty years by persons generally, for vehicles or traveling on foot, does not constitute it a public highway, nor in the absence of evidence of condemnation or actual dedication does the fact that the public have exerted control over it for any less period than twenty years tend to show that an easement has been acquired by user, which raises the presumption of a grant. Wolf, 112-889.

HOW USER SHOWN.--The best evidence of user by the public of a highway is the fact that the proper authorities have appointed overseers and designated hands to work and assumed responsibility of keeping it in repair. Fisher, 117-733.

BURDEN ON STATE TO SHOW USER.-Where the public claims title to the easement in a highway by user, the burden is on the state to show title by adverse possession. Fisher, 117-733.

USER MUST BE ADVERSE.-The user of the road by the public must be adversary and of right, otherwise it is no crime to obstruct it. Stewart, 91-566.

PUBLIC SQUARE AND COMMON HIGHWAY.-An indictment which charges the obstruction of "a certain public square and common public highway there situate," giving the location and bounds of the square, and alleging that citizens of the state have long been accustomed to pass and repass across the same, and that defendant obstructed the same by "digging holes in, and erecting a line of posts in, upon and across said public square and common public highway," is not fatally defective for redundancy as charging a nuisance in obstructing a public common and an obstruction to a public highway, since a public square around a court-house is a public highway. Eastman, 109-785.

A public square used by the public as a means of access to the courthouse and other public buildings, is substantially a public highway. Long, 94-896.

Where defendant and those under whom he claims has been in open and adverse possession of a part of a public square in a town, covered by his store, for twenty years prior to the indictment, such non-user extinguishes the public easement, and defendant can not be convicted. Ib.

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