Wilkinson County MsArchives Court.....Nicholson, James June 1818
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Source: Reports Of Cases Adjudged In The Supreme Court Of Mississippi, June Term, 1818
Written: June 1818

JAMES NICHOLSON vs. SAMUEL STOCKETT


The Road laws of this State, do not require notice to individuals, and the 
intervention of a jury, in order to discontinue a public road.

In the case of a mere discontinuance of a public road, the individual 
proprietor is restored to the soil, previously applied to public use, though 
he may have received compensation therefor.

It is otherwise in the laying out, turning, changing, or altering a public 
road; there an actual view of the ground for the new route is necessary, and 
the intervention of a jury is required.

Perhaps, in such cases, also, notice must be given to the owners of the soil, 
and the compensation to which they may be entitled, must be ascertained by the 
verdict of a jury of their country.


OPINION OF THE COURT.

This was a writ of certiorari, to reverse the proceedings of the county court 
of Wilkinson county, vacating part of a public road in that county.

The first exception taken, is, that the county court vacated the road in 
question, without the intervention of a jury.

The second exception, that the proceedings of the court were ex parte, and 
that no notice was given to the parties interested therein.

As the proceedings were intended to be based upon the directions of the 
statute respecting public roads and highways, we must look to that statute, to 
ascertain whether the exceptions are well founded. The first section of this 
statute provides, that the courts of the several counties, shall order the 
laying out of public roads, and appoint where bridges should be made, and to 
discontinue such roads as now are, or shall thereafter be made, as shall be 
found useless, and to alter roads so as to make them more useful, as often as 
occasion may require. The second section provides, that all roads thereafter 
laid out, shall be laid out by a jury of seven freeholders. The 8th section 
declares, that no person shall turn, alter, or change, any public road, unless 
it is by order of the court, founded upon the report of jury, appointed and 
sworn as in the case of laying out of roads.

Here we find it is necessary, that there should be a jury to lay out, turn, 
change, or alter a road, but not to discontinue a road, unless it be embraced 
by the words, turn, change, or alter, which do not seem to us to comprehend 
the case of a mere discontinuance of a road. But it is contended, that the 
discontinuance of a road, comes within the spirit and reason of the provision 
for laying out, turning, changing, or altering a road. We consider them as 
standing on different grounds. In laying out a road, it becomes necessary that 
the ground should be particularly designated, and marked in its whole route, 
from its commencement to its termination, so as to inflict the least injury 
upon the owners of the land, compatible with the public advantage. This land, 
being the private property of individual proprietors, cannot be taken and 
applied to public use, without compensation to the owners of the soil which is 
to be occupied as a road, and the damages sustained by them must be assessed. 
This cannot be done, with any degree of certainty, without going actually upon 
the ground; but in the mere discontinuance of a public road, this is not 
necessary. The only enquiry then is, whether the road has ceased to be of 
public benefit, or not. That can be ascertained as well by testimony addressed 
to the court, as by a view.

With respect to the notice, which it has been contended ought to have given, 
before the road was vacated, perhaps justice might require, in laying out, 
turning, changing, or altering a road, that the persons, whose land was about 
to be taken for public use should have previous notice, and a full and fair 
opportunity of establishing the extent of the damages, which they might 
sustain. This is a right guaranteed to them by the constitution, and of which 
no law can deprive them. But in vacating, and doing away with a road, there is 
no one interested but the public; no one is deprived of his property, but the 
party to whom the soil belongs, is to be restored to the use of it, although 
he may have previously received a compensation therefor. An individual 
proprietor of the soil, about to be taken and applied to public use, might 
perhaps require, that the just compensation, to which he is entitled by the 
constitution, should first be ascertained, on full notice, by the verdict of a 
jury of his country, but surely no jury, or notice, could be requisite, to 
restore to him the use of his property. The county courts, as regards the 
public roads, are made the guardians of the public interest, without whose 
order no new road can be established, or old road, discontinued, turned, 
changed, altered or vacated. In the discontinuance of public roads, their 
controul is absolute, no notice or jury are required. The exceptions therefore 
are not sustained.


Source: Reports of Cases Adjudged in the Supreme Court of Mississippi, June 
Term, 1818, By R. J. Walker, Reporter of the State. Natchez: Printed at the 
Courier and Journal Office, 1834; pages 67-69.

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