
    Topp vs. Garrett et als.
    
    Roads. Can only bo discontinued or changed in pursuance qf the orders of the county court. If the right of way upon the bed of a long established and much used highway bo granted by the county court to an incorporated company, for the purpose of constructing thereupon a plank road, it is not within the power of the company receiving such grant to depart from the line of the old road at such points as they may choose, and thus confer upon the owners of the soil over which the old road passes, the right to obstruct that portion of tbe road not appropriated by the company for the uses intended, if such obstruction result in inconvenience to the public, arising out of the fact that another highway intersecting tbe road granted to the company is thereby obstructed.
    The judgment in this case was rendered upon the facts and in the manner so fully set forth in the opinion, at the September term, 18fil, of the circuit court for Shelby county, Humpheeys, Judge, presiding, from which Topp appealed in error.
    John P. Carutiiers, for plaintiff in error.
    1st. The public had acquired the right of way in the old State Line Road, so far as these defendants are concerned, by long and uninterrupted user. 9th Yerg. 390, Young vs. State-
    
    2d. The public have not been deprived of this right of way by tbe grant of the county court, to the plank road company, except so far as said company confined themselves in building tbeir plank road on tbe bed of the old road, as tbe order granting said company the right of way only gave them the privilege of building tbeir road “ upon and over the bed of tbe old road.” It did not and could not legally give them tbe power of bartering off the right of way on the old road for tbe right of way through defendant Garrett’s land.
    3d. The county court has exclusive original jurisdiction to lay off public roads, to discontinue such as are found useless, and to alter existing roads. See act of 1804, ch. 1, sec. 1, Car. & Nich.629. In this case the county court has discontinued the old road only so far as tbe right of way upon the same is concerned, and have not by any order whatever altered or changed the same.
    
      4th. The county court, in 1845-6, by laying out and establishing according to the mode prescribed by the act of 1804, ch. 1, sec. 3, the “ New State Line Road,” which intersected the old road about midway between the point where the plank road leaves the old road, and where it again intersects the same, have conferred upon the public a right of way to the full extent of said road, which is still in force, and binding upon the defendants and all others, until said road is “discontinued,” altered or changed, in the mode prescribed by said act of 1804, ch, 1, sec. 3, Car. &Nich. 629.
    5th. No person shall alter, turn or change any public road, unless by order of the county court. See acts of 1804, ch. 1, sec. 13. In this case the defendants have violated this provision, by turning and changing the New State Line Road without any order, and have discontinued a part of said road.
    6th. If defendants, or either of them, were agrieved or injured by the order of the county court in 1845, laying out and establishing said New State Line Road, they had their remedy for damages by said sec. 13 of act of 1804, but they have acquiesced in the order of said court for 5 or 6 years, and have not sought to have said New State Line Road “ changed or turned,” in the mode prescribed by law, but have changed, altered and turned it themselves, contrary to law and in violation of the rights of the public.
    E. M. YeRgee., for defendants in error.
    There can be no doubt that the judgment of the circuit court was correct.
    The property of a highway is in the owner of the soil, subject to an easement for the benefit of the public. Devas-ten vs. Payne, 2 H. Black. 527, 2 Sira. 1004; Mayor of Northampton vs. Ward, 1 Wils. 110; Perley vs. Chandler, 6 Mass. 454; Harrison vs, Parker, 6 East. 154; Jackson vs. Hathaway, 
      15 John. 447; Gidny vs. jEarl, 12 Wendell 98 ; Trustees fyc. vs. Auburn SfRoch. R. R. Co., 3 Hill 588.
    And see the English and American notes to Devaston vs. Payne, 2 Smith’s Leading Cases, 90, where all the authorities are collected.
    This easement is merely the right of all the individuals in the community, to pass and repass, with the right in the public, to do all acts necessary to keep it in rep air, comprehending no interest in the soil, and not conferring the legal possession on the public. Peck vs. Smith, 1 Com. 103,132; 2 Metcalf 147, 151, 457, 467; 14 Johnson 483; 10 New Hamp. 133, 137, and cases and authorities above.
    This easement — the mere right of way — may be discontinued or abated, and when discontinued, the exclusive use or ownership of the soil reverts to the owner of the freehold. Jackson vs. Hathaway, 15 John. 483, and cases cited above.
    And the fact that compensation has been made to the owner of the soil, will not alter this principle. This compensation is for the easement or use of the ground, not for the soil itself. 2 Smith’s Leading Cases, top page 189, etseq.
    
    Has this easement of the public on the State Line Road been discontinued?
    We insist that the action of the county court of Shelby, granting the right of way to the Turnpike Company, was a grant of all the right the public had in the road, and was a discontinuance of the public easement, beyond all doubt.
    By an act of 1804, ch. 1, see. 7, Carathers & Nicholson, the power to establish, alter or discontinue roads, in this State, is vested in the county courts of the several counties.
    In the language of the court in the Franklin fy Columbia Turnpike Company vs. County Court of Maury, 8th Humphreys 354, “ this power is a prerogative of sovereignty ; it has been delegated by the Legislature to the county courts in this Stole, and is exercised by them, not as a judicial, but municipal function.”
    It will follow, therefore, that the action of the county court of Shelby, in this instance, conferred as much power upon this company to construct their turnpike on the State Line Road, as much divested the public of the easement in the road, and is to have the same force and effect as if it had been done by the Legislature, and under the provisions of their charter, and being so, the running of the turnpike upon the bed of the old road destroyed and abolished that road, as a public easement.
    In the case of the ISolensvitte Turn. Go. vs. Baker et als., Judge Green, in delivering the opinion of the court, says, “ The Turnpike Company in establishing their road on the nearest and most practicable route, had a right to occupy the ground on which an old road had been laid out. Of course, the old road would cease to exist. Its existence as a public road would be destroyed.” 4 Humph. 317.
    The whole of the public easement, then, having been granted away, by a proper and competent authority, and the old road being discontinued, the turnpike company had the right to use so much as might be necessary for their purposes, and to contract with Garrett as they did, and permit him to enclose the part he did enclose, for the privilege of running one on other portions of his land. It was a contract upon good considerations, for they would be compelled to pay him for the easement upon the old road, and if he chose to exchange, then it is a matter of legitimate and Ionafide contract. See Trustees &c. vs. Auburn & Roch. R. R. Co., 3 Hill’s N. Y. Rep. 568, and authorities there cited.
   Totten, J.,

delivered the opinion of the court.

There was a public road of the first class, long established, extending from Memphis by Germantown to Collierville. At the January term, 1849, the county court of Shelby granted to the Memphis and Germantown Turnpike Company the right of way over said road; that is, the right to construct a plank turnpike over and upon the same, or so much thereof as they might deem it expedient to use for that purpose. This road was known as the Old State Line Road.” The company constructed their turnpike on the bed of the old road to Mr. Garrett’s farm, four and a half miles east of Memphis. At that place the turnpike diverged from the old road, on the north side, and passing through Mr. Garrett’s farm, a distance of three quarters of a mile, again intersected the old road and continued on its bed.

In 1846, a public road of the first class, called the “ New State Line Road,” was opened and established, extending from Beal Street, South Memphis, due east four and a half miles, to a point of intersection with the Old State Line Road, where it connected and was continuous with this latter road. This point of intersection is at that part of the old road, where the plank road leaves it; that is, about half way of the part not used by the plank road. The effect is, that the New State Line Road has no connexion with the plank road; and the old road has been closed Mr. Garrett’s fence, so that the public are excluded from continuing on it, east to where the plank road again intersects it. This road was closed by an agreement between the turnpike company and Mr. Garrett — he consenting that they should extend their turnpike through his farm instead of pursuing the old road, ¡and they agreeing that he might close the old road, and that they would indemnify him in so doing. Mr. Garrett has opened a new road, extending due south from the Old to the New State Line Road, a distance of nearly a half mile. This is on his west boundary and west of the intersection of said roads. The effect of these changes is, that the New State Line Road is entirely obstructed by Ml-. Garrett’s fence, unless the public choose to travel the new road, that he, by his own act, has opened. To redress this grievance, the county court ordered that the New State Line Road be kept open and in order, from Memphis to the point of intersection with the plank road. From this order, Mr. Garrett appealed to the circuit court, where said order was reversed and annulled; and thereupon, Robertson Topp, a party to said proceeding, has appealed to this court.

The turnpike company had the right to construct the plank road “ upon and over the bed of the old road.” That was the extent of the grant; and so far as it was so occupied, it became thereby extinguished as a public road. Certainly, they could have no right to make their road on a route materially varying from the old road, as they did, and to obstruct and close the old road or confer any right upon another to do so, as was attempted in the present case. For, the effect is, to obstruct the intersection and outlet of another road, much used and of much utility to the public. It is no answer to this to say that they can travel Mr. Garrett’s new road. That is not a public road, and it continues open only at sufferance. If it be just and right to establish it, let it be done legally, by order of the county court; that court having exclusive original power to establish, alter and abolish public highways. If the turnpike had continued on the bed of the old road, the New State Line Road would have connected with it, where it had connected with the old road; and this no doubt was the intention of the county court. Certainly, there is nothing in their order from which a different intention can be inferred ; and in that case, the public convenience would have been accommodated in the same manner as before. But the turnpike departs from the bed of the old road where it intersects with the New State Line Road, and by fences and obstructions that road is cut off from any connexion with the old road or the plank road ; and the public are thus forced to abandon a valuable public road and to travel upon the plank road ; unless they consent to take Mr. Gan'ett’s new cross-road, which does not go in direction to Memphis, but at right angles from it, and increases the distance to the city some half mile. We can perceive that these changes will probably have the effect to enhance the income of the turnpike company, and so it would be further enhanced if other public roads presenting any competition to the turnpike, were in like manner obstructed and discontinued. But this road has been established several years — has been much used, and is of considerable public utility, as it appears from the proof before us. It is not to be supposed that the convenience and advantages afforded by this road, are to be sacrificed in order to promote the interests of the turnpike company.

There is no pretence for the objection that the tolls of the turnpike will be unjustly evaded ; for the proposition is not to make a new road for that purpose, or to have that effect, but to keep open an old one, well known and established before the turnpike was constructed.

If the turnpike company had thought proper to do so, it might in like manner have obstructed the connexion of every other public road with the oldroad, over which it had the right of way and thus great inconvenience have been done to the public. But no such right or power exists in the company or was intended to be conferred by the order upon which they rely in the present case.

The jndgment in the circuit court will be reversed, and the orders of the county court made herein, be affirmed, and a procedendo will go to the county court to carry its orders into effect.  