DISSENTING OPINION. The appellants a number of years ago fenced their land through which a road runs, and maintain gates therein where the road enters and leaves their land. The decree appealed from makes final an injunction obtained by the appellee directing the appellants to remove these gates and to refrain from replacing them. The bill of complaint alleges that the road has become a public road subject to the control of appellee by adverse user for more than ten years. The bill does not allege, and the evidence negatives the existence of an order on the minutes of the appellee's board of supervisors designating this strip of land as a public road. I think the description of the alleged road in the bill of complaint is not sufficiently definite to support the injunction sought, and for that reason the appellant's demurrer to the bill should have been sustained with leave to the appellee, if it so desired, to amend its bill so as to definitely describe the road. *Page 820
On the merits two questions are presented: (1) May a strip of land be converted into a public road by adverse user thereof by a county as such, without an order on the minutes of the county's board of supervisors describing the land and designating it as a public road? Should that question be answered in the affirmative, then, (2) does the evidence here disclose an adverse user by the county of this strip of land as a public road continuously for more than ten years?
We are not here concerned with whether particular persons, or the public generally, have acquired an easement or right to cross the appellant's land, but only with the question of whether this land has become a public road subject to the supervision and control of the appellee in its corporate capacity. I shall leave out of view roads established by the highway department, and restrict what I have to say to public roads established by a county and subject to the supervision and control of its board of supervisors. In this state land does not become a public road subject to the control of a board of supervisors, imposing on a county the duties and liabilities that flow therefrom, unless it has been designated as a public road by the board of supervisors, Tegarden v. McBean Kibbee, 33 Miss. 283, such boards can speak only through their minutes, consequently, this designation of land as a public road must appear, if at all, from an order therefor on the minutes of the board. After this order has been entered the county may acquire the right to use the land as a public road (1) by condemnation thereof as provided in the governing statutes, (2) by purchase or gift from the owner of the land, and (3) by adverse user of the land as a public road in the required manner continuously for more than ten years. For possession of land to be adverse it must be under the claim of right. This rule applies here, Warren County v. Mastronardi,76 Miss. 273, 24 So. 199, and the only way in which such a claim by a county can be made to appear is by an order on the minutes of its board of *Page 821 supervisors. In two cases only, Kinnare v. Gregory, 55 Miss. 612, Rylee v. State, 106 Miss. 123, 63 So. 342, has this court held that a county had acquired the right to use land as a public road by adverse user thereof, and in each of them an order appeared on the minutes of the board of supervisors designating the land as a public road. It is true that such an order may be inferred from long adverse use of the land as a public road, but this inference supplies proof and not allegation, and it can be resorted to only when the party invoking it has alleged in his pleading the existence of such an order; and, moreover, it is a rebuttable inference. The appellant's bill of complaint contains no allegation of the existence of such an order here, and that none such appears on the minutes of the board of supervisors appears from the evidence of the appellee's own witnesses.
If there be counties in the state where the minutes of their boards of supervisors have been destroyed no trouble can result therefrom in this connection, for where land is shown in such a county to have been occupied and used adversely by the county for the requisite length of time as a public road the inference arising therefrom that an order designating the land as a public road had been entered on the minutes of the board of supervisors could not be negatived, as there would be no evidence with which so to do.
Full jurisdiction over roads, ferries and bridges is given to the boards of supervisors by Section 170 of the Constitution, which means ex vi termini, that no road shall come under the jurisdiction of such a board and impose upon it the duty to maintain and repair it without its consent, which consent, of course, must be evidenced by an order on the board's minutes. This was so held 87 years ago by our predecessor, the High Court of Errors and Appeals, in Tegarden v. McBean Kibbee, 33 Miss. 283, wherein, after referring to the Constitution and the statutes governing the establishment and maintenance of public roads, the court said: "The policy established by *Page 822 these laws is, that the Board of Police (now board of supervisors) shall be charged with the duty of having all public roads kept in repair; and to that end, ample provisions are made for the enforcement of that duty. But in order to do this, the road must be established or adopted by that tribunal; otherwise, there is no compulsory power to have it kept in repair. . . . It is to be presumed that, if a road is necessary for the public convenience to be established as a public one, the Board of Police will perform their duty, and take the proper steps to constitute it a public road, under the sanctions of the law; andif there be no such declaration by that body, the road, thoughopen to public use, could be considered in law but a privateroad." (Italics mine.) Such was the law of this state until departed from by the decision just rendered. Before closing its opinion the court there pointed out that "no overseer has been appointed to attend to it, (the road there in question) nor hands assigned to work upon it, as is required to be done in all public roads." But that language was not intended to modify what had just been theretofore said and by itself alone could not have that effect. It had reference to the character of the user of the road, one of the elements for determining whether or not it had become a public road.
This brings me to the second question hereinbefore set forth. This alleged road is less than two miles in length. It has for many years been used with the knowledge and implied, if not expressed, consent of the owner of the land as a short cut for persons living in its vicinity to and from a church, cemetery, school and village. Other persons could have used it without objection from the landowner if they so desired. After the beginning of the use of this land as a private roadway the owner of that part of it now owned by the appellants fenced it, putting gates in the fence where the road entered and left the land. These gates continued until 1924 when they seem to have been discontinued and not to have been replaced until 1941. No order designating this land as a public road, *Page 823 appointing an overseer therefor or directing that it be maintained at public expense appears on the minutes of the board of supervisors. In the 1920s a member of the board of supervisors in order to facilitate the use of the road by a bus for school children verbally directed that it be worked by those charged with the upkeep of public roads and thereafter it was worked about once a year by such persons, up to about three years before this suit was instituted. These facts, leaving out of view the absence of an order of the board of supervisors designating this land as a public road, are not such as to vest title to the land in the county by adverse possession as will appear from 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; Gulf S.I.R. Co. v. Adkinson, 117 Miss. 118, 77 So. 954; University of Mississippi v. Gotten, 119 Miss. 246, 80 So. 522.
One of the tests for determining whether a road is a public or private one is the liability vel non of a county to keep it in repair. Tegarden v. McBean Kibbee, supra, and I doubt if my associates would hold that this county would be liable for damages caused by this road not being in good condition.
The decree of the court below should be reversed and one rendered here for the appellant.