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

SAMUEL STOCKETT vs. JAMES NICHOLSON.

The authority of the County Court to order public roads to be laid out, is a 
delegation of power, and must be strictly pursued, or all its acts are 
absolutely void.

The court cannot lay out a public road, but only order it to be done by a 
jury. Neither the court, nor the jury, can exercise powers delegated to the 
other, nor can a road be established, till the Court order it, and the jury 
lay it out.

The jury must lay out the road in the mode prescribed by the statute, or the 
road will not be legally established.

Where a court has no jurisdiction over a subject matter, or where an inferior 
court has jurisdiction over the subject matter, but is bound to adopt certain 
forms in its proceedings, from which it deviates, the proceedings, in either 
case, are coram non judice - and constitute no justification in an action of 
trespass. The county court is an inferior tribunal, and if it steps beyond the 
limits of its jurisdiction or power, its act are absolutely void, and may be 
so regarded in an action of trepass, though not arrested by appeal or 
certiorari.

The defects of the proceedings of the county court, cannot be supplied by 
parol testimony. Their proceedings must be recorded, and can be proved only by 
the record.


Motion to set aside a non suit transferred from Wilkinson Superior Court.

Rankin and Harding for the motion, contended.

In pleadings, and proof under them the allegata and probata, must correspond. 
If matter in avoidance or justification is set up in a plea by the defendant, 
the proof must correspond. The justification relied upon by the defendant, for 
the commission of the trespass in this case, is to be found in the record of 
the proceedings of the County Court of Wilkinson County, purporting to 
establish a public road, over the premises of the plaintiff. We object to this 
record, on the ground that the county court is an inferior tribunal, of 
special and limited jurisdiction, that the provisions of the statute are its 
letter of attorney, and that it must strictly pursue the power delegated by 
the statute, and that all this must appear on the face of the proceedings, and 
that if it does not so appear, those acting under such void authority are 
trespassers. The proceedings of the County Court show manifestly, that they 
did not pursue the provisions of the statute, in laying out the road, and 
consequently their order constituted no justification, and should not have 
been permitted to be read as evidence to the jury. 5 Bin 612.


Reed against the motion contended.

The County Court proceeded regularly, and persons acting under their 
authority, were not culpable. The jury did report, substantially, as required 
by the law, and the order of the County Court was valid. But can that inquiry 
be entered upon, collaterally, under the issue in this case, and if the 
proceedings of the County Court were irregular, were not the proper remedies, 
by appeal or certiorari? Can a man acting under the positive order of the 
county court, be held liable for damages to individuals, and could the 
defendant, as overseer of the roads, have refused obedience to the order? When 
a defendant sets up a judgment, even of a foreign court, the judgment will be 
taken as final and conclusive, if the court had jurisdiction over the subject 
matter. Phil. Ev. 251, 252, 254. Swifts Ev. 2, 13. Peakes Ev. 77. 2 Am. dig. 
278. 4 Days 407. Hardress 480, 483. 1 Esp. N. P. 390. 2 Wilson 385. 1 Salk 
408. Bullers' N. P. 230.


OPINION OF THE COURT—BY THE HON. JOHN TAYLOR.

This is an action, brought in the Superior Court of Wilkinson County, for 
trespass, in breaking and entering the plaintiff’s close, treading down the 
grass etc. to which the defendant has plead not guilty, and justification as 
overseer of the road, under the judgment and order of the county court of said 
county.

On the trial of the cause, the defendant, under his plea of justification, 
offered in evidence a record of the county court of Wilkinson county, 
establishing, as he alleged, a public road, over the land upon which the said 
trespass is supposed to have been committed. This rerord states, that a 
petition of sundry persons was presented to the court, praying for a road, 
leading from Woodville, the nearest and best way to the line of demarcation, 
at or near Robert Davis’ plantation, that the said petition was allowed, and a 
jury appointed to mark and lay out the road, and report to the next court. The 
order issued by the clerk, directs the jury, to view mark, and lay out a road, 
from Woodville, passing near the plantation of Moses Hadley, John Audebert, 
Moses Liddle, and Jeremiah Nolan, to intersect the line of demarcation, at or 
near Col. Stockett's plantation. The jury made the following report, "We the 
jury, appointed to view a road leading from Woodville to St. Francisville, 
near the line of demarcation, at or near Col. Stockett's plantation, report 
that the road can by a good one," upon which, the court made the following 
order. "The court grant the above road, on condition, that it is not to 
deviate more than from the sectional line."

On the trial, the plaintiff’s counsel objected to this record going to the 
jury. The court admitted the evidence, reserving the point for the further 
consideration of the court, upon which, the plaintiff suffered a non suit, 
subject to the determination of the court, on the point reserved. The cause 
was afterwards transferred to this court, for argument and decision.

The act of assembly, authorising the laying out of roads, empowers the county 
court, to order the laying out of public roads when necessary, and directs, 
that all roads thereafter to be laid out, shall be laid out by a jury of 
freeholders, to be appointed by the court, to consist of seven persons, to the 
greatest advantage of the inhabitants, and as little as may be to the 
prejudice of enclosures, which laying out and such damages as private persons 
may sustain, shall be done and ascertained by the same jury on oath. Dig. 222.

Here is a special delegation of power. First, the court are to judge of the 
necessity of the road prayed for, and if they find it necessary, they are to 
appoint a jury, whose peculiar province it is to lay out the road, to the 
greatest advantage of the inhabitants, and the least prejudice to inclosures. 
Neither the court, nor the jury, can assume to themselves, the power delegated 
to the other, nor can a road be legally established, until the court order it, 
and the jury lay it out. Could it be contended, that the county court could 
establish a road from one point to another, without the intervention of a 
jury? If they could, they would have it in their power to dispense with a very 
important provision of the statute, requiring persons to go upon the ground, 
and to lay out the road, to the best advantage, and at the same time, in such 
a manner, as to do the least injury to individuals, and to say, what 
compensation the owners of the land shall receive for such part of it as shall 
be applied to public use.

If a jury is necessary for these purposes, before a road can be lawfully 
established, what has the jury appointed in this case done? Have they laid out 
the road, and have they said what damages, if any, private persons would 
sustain in consequence thereof? No, they have done neither. They have 
said "the road can be a good one." They therefore have omitted to do every 
thing they were authorized and directed to do, and have reported a fact they 
were not directed to enquire into. The case therefore stands as if no jury had 
been appointed.

But it is contended on behalf of the defendant, that although this may be an 
irregularity in the proceedings of the county court, it cannot be taken 
advantage of in an action of trespass, and ought to have been arrested by a 
superior tribunal, on appeal, or writ of certiorari.

The law seems to be established, that where the court have no jurisdiction 
over the subject matter, also where an inferior court has jurisdictrion over 
the subject matter, but is bound to adopt certain forms in its proceedings, 
from which it deviates, the proceedings, in either case, are coram non judice, 
and the persons affected thereby, may take advantage thereof, in an action of 
trespass. 1 Chitty 183, 184.

In the present case, the county court, which is an inferior tribunal, has 
jurisidiction for the ordering of the laying out of roads, but have no power 
to lay them out themselves. They are to appoint the jury who are to perform 
that duty. If the court undertake to do, what they are only authorized to 
direct others to do, or if they direct a road to be opened which has never 
been laid out, is it not stepping beyond the limits of their power and 
jurisdiction? It certainly is; it is such an excess of jurisdiction as renders 
their proceedings not voidable only, by an appeal to a superior tribunal, but 
absolutely void in themselves, and this nullity can be insisted on in any 
shape in which they are presented. The case of Davidson & others vs. Gill in 
the 1st. East. 64, was a much stronger case in favor of the person interested 
in the establishment of the road than the present. That was also an action of 
trespass for entering the plaintiff's close, &c. It was admitted, that the 
place where the supposed trespass was committed, had formerly been a public 
footway, but the plaintiff contended, that it had been discontinued, and a new 
one established in lieu thereof, in pursuance of the statute of 23d George the 
3d. That statute authorizes the justices, at a special session to divert a 
public footway, and establish a new one in its place. It also declares, that 
the justices should state the length and breadth of the new road, by them so 
established. In this case, on behalf of the defendant it was contended, that 
although the new road had been laid out by the justices, but in as much as 
they had not said what its length and breadth should be, it could not be 
considered as lawfully established as a public footpath, consequently, the old 
one was not vacated; and of this opinion was the court. Here, although the 
court had pursued the statute as far as the court had laid out the road, 
describing where it should run, yet as they had not performed all the duties 
tbe statute required, that is, not establishing the length and breadth of the 
road, it was considered and adjudged no road.

But is there any thing appearing in this record showing that there is a road, 
either regularly, or irreguularly established, on the land where the trespass 
is said to have been committed? There certainly is not. The jury say, there 
may be a goad road between two given points; the court say, they allow such a 
road, but it does not appear, that either the court, or the jury, had pointed 
out over whose land it should run, or if over the plaintiff’s, whether or not 
it was over that part on which the alleged trespass took place. But it is 
said, that upon the record going to the jury, the defendant would have 
supplied its defects by parol testimony. This certainly could not have been 
done, as the laying out of the road, ought to appear of record, and by the 
record only can it be proved. In the case of the Commonwealth vs. Merrick, 2 
Mass. Rep. 529, which was an indictment for a nuisance, in a supposed public 
road, but in as much as the select men of the town, who had the power, and 
were authorized to lay out the road, had not caused their proceedings to be 
recorded, it was adjudged not a public road, and consequently the defendant 
was acquitted.

Let the non pros be set aside, all the judges concurring.


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 75-80.

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