
    John Wetherspoon vs. The State of Tennessee.
    Where a road, established by the proper authority, passes over the laud of anin-dividual, he cannot close up or obstruct it, upon the ground, that the county court refused to make an order, authorizing the county trustee to pay him the damages assessed by a jury, for the injury he had sustained by its location.
    The act of 1825, ch. 17, only applies to cases, where the county courts have made orders to have roads reviewed, preparatory to their establishment, and where damages aive assessed before they are established; it does not apply toa case where the road is actually established.
    Wetherspoon was indicted in the Williamson county court, at the January sessions, 1826, for obstructing a public road, by laying a fence across it. He pleaded not guilty, was tried, convicted and judgment passed upon him, that he make his fine of five dollars to the state, remove the obstruction to the road, and pay the costs.
    From this judgment he appealed to the circuit court, was again tried at the August term, 1826, of said court, convicted, and judgment passed upon him. From this judgment he prosecuted an appeal, in the nature of a writ of error, to this court.
    The defence set up by W etherspoon, is predicated on the following state of facts: At the April sessions, 1822, of the Williamson county court, a jury was ordered by the court, to review the-ground over which a road was prayed to be established, by the petition of .a number of individuals. The review was made, the road marked out and a return of the proceedings made to the following July sessions of the court; at which term it was established as a public highway, and an overseer appointed, and hands assigned him to keep the same in repair.,
    The road, as marked out and established, passed over the plantation of Wetherspoon, who, conceiving himself injured, removed the proceedings of the couhty court by cer-tiorari, into the- circuit court; and at the February term, 1824, of that court, the judgment of the county court, in establishing the road, was affirmed.
    Wethei'spoon then applied to the county court, at their April sessions, 1824, for an order, that a jury might he em-pannelled to view the road, where it passed over his land, an(j assess the damages he had sustained, by its location, according to the provisions of the 19th sec. of the act of 1824, ch. 1. The jury were ordered, went upon the pre-mjses? and at the following July sessions, returned that defendant had sustained damage to the amount of 365 dollars, in consequence of said road passing over his land. He then moved the court, to order the money to be paid to him by the county trustee, or that they should discontinue the road, and order it to be located north of his land, where he would not be injured. The court refused, either to order the money to he paid to him, or to change the location of the road. The defendant then run his fence across the road established, and opened it over different ground, without the order of the county court — for which he was indicted.
    The judge below charged the law upon this state of facts to be against the defendant and that the refusal of the county court to pay him the damages assessed by the jury, r to remove the road, did not justify him in closing it up.
    
      Grundy and R. C. Foster, jun. for the plaintiff in error.
    
      A. Hays (attorney general,) for the state.
   Catron, J.

delivered the opinion of the court. First. This road was conclusively established as a public highway in February, 1824. Secondly. That it was obstructed, is admitted.

But it is contended, on the part of the plaintiff in error, that by the constitution he cannot be deprived of his property for the public use, without compensation being made therefor; and until the compensation is made, he is authorized to occupy and enjoy the exclusive possession of the property. This consequence, by no means follows the constitutional provision. It is not a condition precedent, that the government shall pay, before the property appropriated to public purposes, is taken possession of and used by the state. (Craigie vs. Miller, 6 Mass. Rep. 7.)

The manner of obtaining compensation, is pointed out by the act of 1804, ch. 1, sec. 19. The defendant below, attempted to obtain it, but failed before the county court. If he was dissatisfied with the decision, it was in his power (provided he was injured,) to take his cause by certiorari to the circuit court, and by appeal in error to this court, and have the errors corrected. This he failed to do, and therefore he has no right to complain.' Yet the proceedings to obtain damages, were collateral to the establishment of the road; with which proceedings the public had no concern. The rights of the community to the use of the highway established by order of the circuit court, upon appeal to that court, in February, 1824, was complete. The order was in full force, when the road was obstructed, and conclusive upon all persons, as to the establishment of the road, until reversed, or the road discontinued by the proper authority— the county court; and an excuse for its obstruction, is not within the recollection of this court, unless it should be found in the act of 1825, ch. 17, which is mainly relied upon in the defence, and which we will examine.

The road was finally established in February, 1824 — the act referred to was passed the 31st of October, 1825, nearly two years afterwards. It provides, “that where a jury of view shall have been ordered by the court, marked and laid off a road over the land of any person, and the owner of the land shall consider himself aggrieved thereby, and shall have obtained, agreeably to the laws in force, a jury to assess the damages he may sustain thereby, that it shall not be lawful for such a road to be established as a public highway, until the damages, so assessed, are paid to the person injured, or so provided for, as to answer the payment thereof.”

It is contended that this is a retrospective law, and covers the case of the plaintiff in error.

Whether the law is retrospective, or not, is unnecessary for the court to determine; forasmuch as it plainly applies to cases, where orders are made by the county court to have roads reviewed, preparatory to their establishment, by confirming the order. If in this case the jury to assess the damages, had been applied for, and reported the damages. ^ie roa¿ was established, then a fair case probably would be presented to the court for the application of the provisions óf this statute; and the payment of the money, or secarity thereof to the party injured, would have been a condition precedent to the establishment of the highway; but the legislature could never have meant to annul roads already established. If the desired construction were put upon the act, it is very probable some of the oldest and most public highways in the state, might be shut up with impunity. What practice the county courts will adopt upon this statute, it is not for this court to say; but that it was intended to apply to cases where a jury of view had condemned the ground, over which the highway should lie, before such highway was finally established by order of the court, and an overseer thereof appointed, is certain — the act of 1824 having made ample provision for the assessment of damages, in cases of injury sustained by reason of the location of the roads, after the same are opened by order of the court; and it is believed the only alteration intended to be made by the act of 1825, was the payment of the damages, or the security of them to be paid, as a condition precedent to the opening of the road; and, therefore, that it does not apply to this case, where the road had been already opened. Affirm the judgment of the circuit court.

Judgment affirmed.  