
    Shelby vs. The State.
    Where the public cease to use a road, and adopt another, and the owner of the soil over which the road passed, resumes the use of it, and the public acquiesce therein for the period of three years, in the absence of contrary proof, an abandonment will be presumed, and the owner is not indictable for obstructing it. In such a state of facts it lies on the prosecutor to prove that it has not been abandoned. The use of the road by a few individuals in the vicinity thereof will not repel the presumption.
    Shelby owned land over which a road, established by public authority, run, beginning on Cumberland River, near the town of Nashville, and running thence north. The road was superseded by the White’s Creek Turnpike for all public purposes, and the portion of it which lay north of the turnpike was closed by order of the county court. That portion which ran from the turnpike to the river was left open, but was not used except by a few persons who resided in the immediate vicinity thereof, for watering stock, and other like purposes. Shelby built a fence across this road, with a view to inclose his property, and was indicted for the obstruction of it as a public road. The White’s Creek Turnpike road had been in operation for upwards of three years before the indictment was found, and since the construction of said turnpike, the old road had been disused.
    There was a verdict and judgment (Turner, judge, presiding,) against the defendant. He appealed.
    
      Trimble, for plaintiff in error.
    
      Attorney General, for the State.
   McKinney, J.

delivered the opinion of the court.

We think the evidence in the record before us, does not support the charge in the indictment, or warrant the conviction of the defendant.

The proof establishes very clearly, that since the completion of the White’s creek turnpike road, a period of at least three years previous to the trial in this case, the old river road, as it is called by some of the witnesses, or that part of it which lay between the White’s creek turnpike road and the river (and for the obstruction of which the present indictment was brought) had ceased to be used by the public; the entire public trav-elling being on the said turnpike road; that after the great freshet in the winter of 1847-8, part of said old road became, and still continues to be “impassable;” that said White’s Creek Turnpike road is entirely sufficient for all. public purposes, and said old road is of no utility to the public.

It might very well be admitted, that the right of way, or “easement” acquired by the public, in the present case, has not been lost by non-user; but on the contrary, that it might be resumed if deemed proper by the public. Though on this point we, at present, mean to express no opinion. But it is very clear that such easement may be abandoned, or the use thereof discontinued by the public. And if the public cease to use a road, and adopt another, and thereupon the owner of the soil over which the old road passed, resume the use and occupancy thereof, and the public acquiesce therein for the period of three years, the discontinuance, or abandonment of the old road may well be presumed, in absence of all evidence indicating a contrary intention on the part of the public. In this case there is no evidence of any such intention; and if such existed, the burden of proof was on the prosecutor. The use of the old road by a -few individuals in the immediate vicinity thereof, for purposes of mere private convenience, furnishes no evidence sufficient to repel the presumption of abandonment by the public.

Judgment reversed.  