
    *Clarke v. Mayo.
    [October, 1803.]
    Roads — Establishing — Record. — An old road established, although no record could be produced, shewing that It had ever been opened, by order of court.
    Same — Same—When View Not Necessary.'-' — If the proprietor of the land petitions for a road, and the court approve of it, it may be established, without a view.
    Same — Dedication—Acceptance—And although no express order of establishment can be found, yet if surveyors of it be appointed for a long tim e, the establishment, and his assent to it, will be presumed.
    This was a contest about the existence of a public road; and the record exhibits the following facts:
    On the ISth of January, 1800, Clarke obtained an order of the county court of Powhatan, appointing a surveyor of the road, “through Daniel Mayo’s plantation to Mayo’s mill.” Mayo petitioned the district court for a writ of supersedeas to that order; which was refused. The court of appeals reversed the order of refusal, and directed that the writ should issue. This was done, and the district court reversed the order of the county court. To which judgment, Clarke obtained a writ of super-sedeas from the court of appeals.
    
      The evidences with respect to the existence of the road were as follows:
    At Cumberland April court 1760, a motion was made, bjT the ancestor of Mayo, for the establishment of the road, and viewers were appointed, but no report could be found. However, in 1761, 1777, 1779, surveyors of the road were appointed; and the clerk of Cumberland certified, that, upon examining- the records, in his office, it appeared, “that several, very public roads, in that county, had no other establishment than the appointment of overseers, from time to time:” and that not more than a fifth of the cases, where viewers had been appointed, contained reports.
    A witness deposed, that he had been a magistrate, in Cumberland, before the division of the county, and in Powhatan, af-terwards. That he had always considered the road, in question, as a public highway; and was satisfied that it *had been legally established, although he did not recollect the circumstances. That Mayo’s ancestor, when he built his mill, opened it; and some time afterwards applied, to Goochland or Cumberland court, to establish it; but, as it was already opened, nothing more was thought necessary, than to appoint a surveyor.
    Wickham, for the appellant.
    The question is not whether the land belongs to the appellee, but whether the public have a right of way over it. An order of court, establishing a road, although a record, may be presumed, in the same manner as a patent, which is also a record, may. Besides it might have been a road before the year 1748; and, if so, the act of assembly recognizes it. Old Virginia laws, 236. Again, the party might have been in court, and assented to it: In which case, the order appointing a surveyor was all that was necessary; and the court will presume that it was made upon the assent. But a road may be established by reputation only; and that is the constant course in England. Perhaps, therefore, the court did %o more than appoint a surveyor to a reputed road; and, if so, it was correctly done; for the common law right prevailed, as the act of assembly had not taken it away. The present writ of supersedeas is not sustainable; for, if there was error, the application should have been made against the first order, in 1761, and not against the last.
    Randolph, contra.
    If there ever had been an order establishing the road, it would have been found, as the appellant had sufficient time to search for it. The county court was bound to pursue the law; for the property could not be appropriated, to the public service, without. The inquest was not for the benefit of the individual, but of the public; and therefore its existence should be shewn. A road cannot be established, by reputation only, in this country: Nothing will do, but a strict compliance with the act of assembly; and, consequently, the argument, founded on the supposed ^assent of the party, is inadmissible. But, if admissible, the concurrence of the court was necessary, and should have been recorded, as a substitute for the proceedings required by the act of assembly. As there was no record of a prior establishment of the road, the super-sedeas to the last order of the court was sufficient, because that was the order which injured the appellee.
    
      
      Roads — Establishing—When View Not Necessary.— With the consent, of the proprietor of the land a road may be established legally without appointing viewers or having any report. Keystone Bridge Co. v. Summers, 13 W. Va. 505, citing Clarke v. Mayo, 4 Call 374.
    
    
      
      Sarne — Dedication—Acceptance.—In Boyd v. Woolwine, 40 W. Va. 287, 21 S. E. Rep. 1021, it is said: “A road dedicated to the public must in some way, directly or by inference, be accepted by the county court upon its records before it can become a public county road. This may be done by laying it off into precincts or road districts, by appointing for it an overseer, or surveyor, or by any act, formal or informal, showing plainly that it claims and treats the road as a public one. And if, after notice of such claim, the owner of the soil permitted the road to be passed over for any time, the road might well be inferred to be a public road. See Brander v. Justices of Chesterfield, 5 Call 548; Clarke v. Mayo, 4 Call 374; Com. v. Kelly (1851), 8 Gratt. 632; Ball v. Cox, 29 W. Va. 407, 1 S. E. Rep. 673. It is true that section 31, ch. 43, of the Code, by change of language made in 1881, now reads as follows: ‘Every road * * * used and occupied as a public road * * * shall in all courts and places be taken and deemed to be a public road * * * * whenever the establish)!] ent thereof as such may come in question;’ yet the court has held that this means used and occupied under the sanction of the county court in some way expressed. See Ball v. Cox, 29 W. Va. 407, 1 S. E. Rep. 673; Talbott v. King, 32 W. Va. 6, 9 S. E. Rep. 48; Yates v. Town of West Grafton, 33 W. Va. 507, 11 S. E. Rep. 8; People v. Underhill, 144 N. Y. 316, 39 N. E. Rep. 333.” The principal case is also cited with approval in Com. v. Kelly, 8 Gratt. 634 (see also, footnote).
      
    
   ROANE, Judge.

The district court appears to have proceeded upon the ground, that there was no record of an order establishing the road. But there is nothing, in the act of assembly, which prevents the court from accepting a road tendered by the party; w.ho may, if he thinks proper, .waive the usual formalities, and renounce the benefit of the statute. The record shews, that the road was opened and used; that viewers were directed to inspect and report upon it; and that a surveyor was shortly afterwards appointed; all affording irresistible evidence, either that a report was made; or what is more probable, that it was dispensed with, because the road was offered by the owner: And had the order of 1761 recited the transactions, and stated that the appointment of a surveyor was made without waiting for the report, because the proprietor of the land, by petitioning for the road, had, necessarily, assented to the establishment of it, the appellee would have been estopped from controverting the public right: But it is the same thing, in effect, when it is inferrible from the proceedings, that one or the other must have happened; for then presumption supplies the averment; especially as the welfare of the community requires, that a public easement long sanctioned by the proper authority, and acquiesced in for nearly forty years, should not be disturbed by a rigid, or critical, construction, of the words of an order defective, probably, from the inadvertence of the clerk. To put down a road, under these circumstances, would tend to ensnare third persons, and injure the public interest, upon technical exceptions, not fit to be sustained. Viewing the case, therefore, with that liberality *which I apprehend ought to obtain upon such occasions, and thinking that an actual surrender for the use of the public, should be inferred, I am of opinion, that the judgment of the district court ought to be reversed, and that of the county court affirmed: particularly when it is considered that many of the public roads, throughout the state, probably stand upon the same footing; and that a contrary decision might be attended with very alarming consequences.

FLEMING, Judge.

This case stands upon very different ground from that of an application for a new road. For the road here had, previously, been opened by W. Mayo the proprietor for the use of the community ; and the application to establish it as a public highwaj1' was made by himself: the appointment of a surveyor therefore was, necessarily, sanctioned by him: and that was sufficient. For it is not, as the counsel of the appellant supposed, on account of the public, but of the owner, that the formalities in the statute are prescribed. If he chooses to waive them, he may; and, if the court approve of the road, all they have to do is to accept of it; which, in the present case, was done by appointing the surveyor. X concur, therefore, that the judgment of the district court should be reversed, and the order of the county court affirmed.

LYONS, Judge.

In 1760, Mayo petitioned for the road, and viewers were appointed, but no report was made; and it does not appear, that any further proceedings were ever had upon the petition, which was probably dropt, as' there is no order of court establishing the road, it was said, however, that it might have been a road prior to the year 1748; but that idea is refuted by the petition in 1760; for why petition for the establishment of it, at that time,'if it was a road before? It was next urged, that the constant habit of appointing surveyors shews that it was a public highway. To which I answer, in the first place, that 'if there had been such a habit, the appointments would have been nugatory, *and would have proved nothing ; for the law only authorized the court to appoint to established roads, and there could be none, unless they appeared of record. But there was no such constant habit; for, although the law required annual appointments, it appears that only three had been made for this road; one in 1761, and two, many years afterwards, that is to say, in 1777 and 1779; both in tempestuous times, and probably obtained by surprize, when those, whose interest it was to oppose them, were absent. Such long intervals are not to be accounted for upon any other principle, than that it was not regarded as a public road; and they prove the propriety of demanding a record, when such manifest injury is to be imposed upon an individual. It is in vain to say, that W. Mayo, by petitioning, gave his consent to the road; for he was at liberty to retract it, at any time, before establishment ; and probably did so, as he took no steps to have the order of view carried into effect; and it is very likely that, not only the order in 1761, appointing the surveyor was made without his knowledge, but that the discontinuance of it afterwards, first for upwards of sixteen years, and then for more than twenty, was occasioned by the opposition of himself and his representatives. The argument of presumption, therefore, loses all its weight; for the inference against the establishment, is at least as strong as that in favour of it; and, if they balance, the law should prevail. Under this view of the subject, I cannot consent that the rights of properti" should be invaded, and the proprietor put to the excessive inconvenience of having a public highway through his plantation, as there is nothing to shew that the necessary steps, to produce that effect, were ever taken. My opinion, therefore, is, that the judgment of the district court, is right, and ought to be affirmed; but, as a majority of the judges think otherwise, it is to be reversed, and the order of the county court affirmed.  