Show S PUBLIC HIGHWAYS A OPINION GIVEN BY ATTORNEY ATTOR-NEY GENERAL BISHOP It I of Interest to Every County in the State What Constitutes a Dedication In an opinion rendered yesterday At torneyGeneral Bishop treats on what constitutes a dedication of public highway high-way This Is a subject which every county in the state has to del with and one which the commissioners of this county are now wrestling with and it is therefore of some interest Theo The-o = lnlon which was sent to County Attorney At-torney McDaniel of Sevier county is as I a follows s I beg to acknowledge receipt of our favor of recent date containing tho fol lowing First Where a county road over unappropriated public lands was laid out and used by the public for ten year prior to the application of 3 homesteader home-steader to enter the same and upon which poll tax had been expended or rears re-ars made under the direction of the road supervisor but of which no formal dedication was ever made is there a sufficient dedication to hold the same as against said homesteader You also submit a series of questions relating to the same subject differing only in some of the facts stated but all Involving the question as to what constitutes a dedication dedi-cation of a public highway An answer to your first question in full will necessarily furnish the information sought in the other inquiries of your communication Your attention is di rected to section 2477 of the revised f i tu statues of the if States enacted by congress lows in July lEG providing as fol The right of way for the construction of highways over public lands not reserved served for public uses is hereby granted See page 219 volume 1 of the code of 1SSS By the terms of the fore gong a grant is made to tho public of rights of way over public lands not reserved re-served for public uses There must bean be-an acceptance of this grant evidenced by borne action of a corporate body duly authorized thereto Generally speaking as against the sovereign government the doctrine of adverse lOS essjon or title by prescription prescrip-tion can have no force and the acquies ence of the government for any number of years in the use of its land for highways high-ways would be no evidence of dedication on Us part To determine what will amount to a dedication of a highway reference must be had to the provisions of our code Therein we find the following follow-ing Section 2CG7 All roads which are now used by the public and I have been declared to be highways by the county courts and municipal corporations within their respective jurisdictions or which may hereafter be so declared shall be deemed and taken to be public highways high-ways Section 206S provides roads S laid out and recorded by order of the county courts or municipal corporations within their respective jurisdictions are public highways Section tion 2072 subdivision 2 in prescribing the duties of county courts makes it their duty t cause to be surveyed viewed I laid out recorded opened maintained and worked such public highways as are necessary for public convenience I By a perusal of the foregoing law it will be observed that certain proceedings proceed-ings are made requisite on the part of the county court in order to validate the appropriation of land valdate for highways and which proceedings proceed-ings when had and properly recorded re-corded by the county clerk a provided in section 2073 are sufficient evidence of appropriation on the part of the county and of dedication on the part of the government land gov-ernment if the highway be over public landIn your communication you use the term county road I Is assumed from this that the county court has in all respects re-spects complied with the law hereinbefore hereinbe-fore set out I this presumption is correct cor-rect I am of opinion that such comoli ance operated a an acceptance of the dedication made by act of congress referred re-ferred to and that thereby the public acquired ac-quired an easement in such land of which it could a not be divested by a patent of I the United States issued to a homesteader home-steader whose entry of said land was made subsequent to the acceptance of such dedication And that a patent issued is-sued in the case suggested by the United States would be held subject to the easement ease-ment acquired by tho public in the land for its us as a public highway is section 2066 i is provided that all roads laid out or erected by I others than the public and dedicated or abandoned to the use of the public are I highways A highwcr shall be deemed d2 i and taken as dedicated and abandoned to tho use of the public when it has been l i i continuously and uninterruptedly used asa as-a public thoroughfare for a period often of-ten years It er be seen that ten years Is the time fixed by statute after which a dedication ded-ication as against all the world except the sovereign government will be conclusively con-clusively presumed The use of a highway for any number num-ber of years less than ten whether expenditures ear penditures of labor and poll taxes have been made thereon or not could not avail to vest title in the public by adverse possession tte I am of opinion that the expenditure of labor and poll tax or the making of repairs upon roads are not conditions precedent to dedication and a road may become a public highway of either thereon without the expenditure eiher on and that a highway except as against the general government is i dodicatd and abandoned to the public when the same abaromd ben continuously and uninterruptedly uninterrup-tedly used as a publlr thoroughfare for a period of not less than ten years provided vided the user has been adverse and not by tho permission of the owner of the land landI am further of opinion that in order to the determination of what shall constitute con-stitute a sufficient dedication the rec sttute ords of the county court must be consulted con-sulted If it shall appear therefrom that a substantial compliance with the law substantal governing statutory dedication has been governing such way shall be deemed and taken to be a public highway whether over public or other lands and that the countys right is paramount as against t the homesteaders in any case where the land was entered subsequent to the suggested countys appropriation as hereinbefore |