"Common Law?"  Not Necessarily

By John Harvey

Many things that we accept as part of the "common law" today were not always so.  A look through old court records, county commission minutes, and the newspapers of bygone days will reveal how our ancestors often had to force acceptance of them

We today, accept the right of a property owner to passage way to the nearest public road even when he has to cross our property to get to it.  A look at early court records in our county will reveal many cases where a farmer or a group of farmers had to go to court to get an old road re-opened so that they could get to the new public road.

In the early settlement, the road usually went from one farm to the next, but as transportation improved and roads began to go more directly from one point to another, many of the old roads were closed.  This resulted in many farms being left off the public road.  Many of the large landowners also build private roads on which they charged a fee when the general public used them.

Further complicating the road problem, in ante-bellum times, were the system of farm roads which parallel the public roads.  These farm roads were used by farmers going from one field to another and by teamsters carrying farm products to market.  Quite often, a road had long outlived its usefulness before it was finally closed.

Another right which we accept today is the right of all those living along a creek or branch to sufficient water for their use.  One of the earliest cases in the inferior court records of Jasper County concerns the purchase of Wilson's Grist Mill from the Wilson Estate by William Cargile, first tax commissioner of Jasper County.  Willson was the English; Wilson was the Scotch spelling.  There was a Wilson family in the county whose descendants now live in Clayton County near Jonesboro

A short time later, Mr. Cargile went to court to force the farmers living above him on the creek to stop tampering with the creek so that he would have sufficient water to operate the mill.  Judge Owen Kennan agreed with Mr. Cargile for he fined those listed as defendants $500 and court costs and ordered them to stop damming the creek.

Logging was a side occupation for most of the farmers in the early 1800's.  After the crops were "laid by" and after they were harvested in the fall, they turned to clearing more fields.  The logs were piled near the nearest creek.

A temporary dam called a "cotter dam" was built to catch the winter and spring rains.  In the late spring, the logs were floated on the ponds that had been created, the dams were burst and the logs floated down to the nearest saw mill.  This caused great fluctuation of the water in the creek and some times damage to mill wheel.

It seems that Jasper County did not have a fencing law until 1884.  The Jasper County News ran a series of articles explaining such a law early that year.  Prior to that time, cattle, horses and hogs were allowed to wander about the countryside.

Part of the explanation of the new law concerned strays.  If a farmer found a stray on his place, he could pen it up.  He was required to report it to the office of the county ordinary.  If no one claimed it within three months, he could then lay claim to it.  Nothing was said about advertising in the paper for the owner, as we would do today.

Additional Comments:
Transcribed by Suzanne Forte (suzanneforte@bellsouth.net) April 2005,  from copies of articles contained in the Monticello News. There articles were prepared by Mr. 
John Harvey and published in this newspaper during the 1970's and 1980's time frame. Some were under the title "Jasper Reflections", others "Bicentennial Bits".
Permission has been granted by Mr. Harvey for use of these very valuable and informative articles.

Copies of articles provided by Benny Hawthorne.