#### LEVI N. TARKINGTON *vs.*S. H. McREA.

The establishment of a road district or the assignment of hands to work on a public road, can only be made by an order of the County Court, and no acquiescence in the authority of an overseer by working under him upon a road, can amount to a presumption that a district was laid off, or that the citizen thus *48acquiescing had granted the power to another of compelling him to work on the road.

ActioN for penalties for failing to work on a public road, tried before his Honor Judge Saundeks, at the Spring Term, 1853, of Tyrrel Superior Court.

There was no question as to the plaintiff’s appointment as overseer of this part of the road in question : lie proved that the road had been used as a public highway for more than thirty years : that for that time overseers had been continually appointed, who successively acted and worked upon the same, and that for twenty-five years of that time, the hands belonging to the plantation now owned by the defendant, had uniformly', and without objection, obeyed the summons of the overseers and had worked on this part of the road, and that they did not, during that time work on any other road. That for many years previously to the failure complained of, the slaves of the defendant residing on this plantation had thus worked upon the summons, and under the direction of the plaintiff and the preceding overseers.

The plaintiff also proved that the defendant’s slaves residing upon, and belonging to the plantation in question, had been duly summoned, and had failed to work.

There was no evidence of a road district having been laid off by Tyrrel County Court, including these hands, nor any other order assigning them to this part of the road; and it was insisted by the defendant’s counsel, that for this reason, he was not liable for failing to work as required by the overseer, and he called on his Honor so to charge.

But the Court refused so to instruct, and told the jury “ that if the hands liable to road duty, kept on this plantation by its respective and successive owners, for a period of more than twenty years before the failure complained of, had been regularly worked upon the said road, and no other, and the authority of the successive overseers of the road had, during that time, been recognized to require their labor whenever the repairs of the road made it necessary, and this had been ac*49quiesced in as of- right, then the presumption arose of an assignment by the proper authority of-thediands-to said road, and it was not necessary to exhibit record evidence of- the fact.”

Under this instruction, the jury found-in favor of the plaintiff, and defendant'appealed.

Smith, for plaintiff.

*■Heath*and Gilliam, for defendant;.

Battle, J.

There can be no doubt that tlie-testimony offered by the plaintiff, was competent and sufficient to prove the existence of the road in question as a public highway. Its uninterrupted use by all persons as a highway for more than twenty years, fully justified the presumption that it had been granted or dedicated to the public by the former owners of the soil over which it ran. *Woollard*v. McCulloch, 1 Ire. Rep. 432; *State*v. Marble, 4 Ire. Rep. 318.

The road having been established by this presumption from its long and uninterrupted use, the counsel for the plaintiff contends that the assignment of the defendant’s hands to work and assist in keeping it in repair, must be presumed on the same principle. But a moment’s consideration will satisfy us, that the cases are very different, and are not at all susceptible of the application of the same principle. The road is an easement enjoyed by the public, in the lands of those over which it is located. It may be taken from the proprietors *in*invitum, by certain proceedings under the act of the Legislature authorizing- the laying out and establishing public roads. In such cases, the requisition of the law must be complied' with, and that must appear by the records of the County Court, to which jurisdiction over the subject is given. *State*v. Johnson, 11 Ire. Rep. 647. The easement may also be granted by the proprietors of the soil, and the right of the public must be evidenced by an actual grant unless the road has been used as a common highway for more than twenty years, in which case, no deed need bo produced, as one will be presumed: that is, it will bo presumed that a deed was actually executed, *50and was, of course, formerly in existence, but is now lost. *Woollard*v. McCulloch, *ubi supra.*The proof of the exist-énce of the road, in the present case, depends upon this common law presumption: and the easement claimed, and enjoyed by the public, is founded upon the same well-known principle which supports private prescriptive rights.

But the assignment of the defendant’s hands to work on the road, or the laying off districts within which,they may be summoned by the overseer, must necessarily be done by the County Courts : It is manifestly not the subject of a grant by those who are liable to send hands to work. It cannot, therefore, be claimed, as against such persons, by prescription, or upon any presumption analagous to it. Such seems to have been the view taken of this subject by the Court in the above cited case of *Woollard*v. *McCulloch.*There the defendant lived within a mile of the public road which he was required to work, and nearer to it than to any other. His hands, and those of the persons who had occupied the same premises, had worked the road for more than fifteen years, and he had on one occasion actually promised the overseer to make compensation for the failure of his slaves to work the said road. Notwithstanding all this, the Court, without intimating that the shortness of the time prevented any presumption, declared that “ the plaintiff was an overseer without hands, he should have made application to the County Court for a list of hands, or an assignment of a *district.*The defendant’s hands had never been assigned to that road, his lands were not comprehended by the Court in a district of the plaintiff, as overseer of the said road.” As we have shown that no presumption could be made against the defendant, that his hands had been assigned by the County Court to work the road in question, or that his lands had been comprehended in any district laid out by said Court, in which the plaintiff was overseer, his Honor erred in leaving the question to the jury, and for this error the judgment is, reversed, and a *venire de novo*granted.

Pee CtiRiáM. Judgment reversed.