William Worth vs. Amos Dawson and William Fowler, 1 Sneed 59

By the Coukt. There is no evidence in this record showing a dedication by the owner, of the way in question, to the use of the public; or of any such intention on his part. The proof establishes nothing more than a mere license, or permission, by the owner, to the inhabitants of a local neighborhood, to use the pathway, as a matter of favor and convenience. And such use, being only by sufferance, during the pleasure of the owner, he had the right to put an end to it at any moment. No use or acceptance, of the way, by the public, is shown; nor any recognition of it by the proper authority, the county court.

That a right of way'may be claimed by a dedication to the public use, by the owner of the soil, is not denied; but, witb us, this doctrine must be cautiously admitted. Its too easy application would defeat the right of the owner of the soil, to have compensation for the damages sustained by laying out a road over his land, to which he is entitled, when such road is laid out by the proper authority. It results, that the occasional use of the pathway in question, through the plantiif’s close, gave the defendants no right to dig or remove the soil for the repair of said way.

The judgment must be reversed, and a new trial awarded.