
    The State vs. David Mobley.
    All roads laid out by public authority must be regarded as public roads, in tlie obstruction of which a nuisance may be committed.
    A road laid out by order of the County Court of Chester district is a public road, unless discontinued by order of the commissioner of roads, or become extinct from long neglect or non user.
    Before O’Neall, J., at Chester, Fall Term, 1839.
    The defendant was indicted for obstructing a road leading from the plantation of Wm. L. Wallis, on the York road, to the mill of Charles Walker, deceased, in Chester district. The proof very clearly established an obstruction of the road by the defendant.
    The County Court of Chester, on the 31st of July, IT98, ordered the road to be laid out by the following order : “ On petition, ordered, that a travelling road be laid out and cleared from Thomas Wallace’s to Robert Owen’s grist mill, to be laid out at the direction of Thomas Wallace and William Monahan, the nearest and best way, so as not to interfere with the enclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contiguous thereto, and have the benefit thereof; also, a rad from the mill to intersect the Charleston road near the lower corner of Tlios. Cabeen’s field, and thence into Fish-dam road above William Murray’s on the same conditions and premises as the above, at the direction of James Vants.”
    *Under this order, the road was opened and laid out. It has been an open road since ’98 : some persons voluntary worked on it; the commissioners never kept it in repair. It was still, however, used by the neighborhood. It was changed by many persons through whose land it ran, as suited their convenience. Owen’s mill was ten or twelve years out of repair ; it was then repaired by Charles Walker, who had bought it.
    I submitted to the jury the inquiry — is this a public road ? I said to the jury that that which is for private use cannot be regarded as public. A road to a church or a mill, and there terminating, would not, in general, be a public road. On this part of the subject, I said to them, there was a great difference between our condition and that in England, whence our common law was derived. That I thought it possible here that a road to a mill might be a public one ; as when it was used by the people at large, and where it led from a public road to the mill and thence into another public road, and became a public thoroughfare. I did not say to the jury, as the defendant’s ground of appeal suppose, “ that the English common law, in relation to roads, was not applicable to roads in this State.”
    I said further to the jury, that a road from village to village, or from one public road to another, might or might not be, a public one. A road kept in repair by the commissioners of roads, is a public road It might, however, be that a road not kept in repair by the commissioners, was a public road. As where a road is laid out by public authority for the use of the people. If such a road be discontinued by the commissioners, then it may end its public character. So, too, where they do no act disclaiming the road, yet it might be disused for such a length of time as would satisfy them that it had ceased to be public.
    Frequent changes of a road, unless they amount to an abandonment, could not affect its public character.
    With these instructions, the case went to the jury, who found the defendant guilty; he appeals on the annexed grounds.
    GROUNDS OP APPEAL.
    1st. Because his Honor, the presiding Judge, erred in charging the jury: 1. That the common law of England, in *relation to roads, was not applicable to roads in this State. 2. That the road in this case had been established as a public road. That a civil action could not be maintained for obstructing a road such as this. 4. That this road had not been abandoned.
    2. Because the verdict of the jury was contrary to the evidence that this had never been established as a public road ; that it had not been opened by the public ; that it never had been repaired or worked on by the inhabitants ; that it never had been regarded by the commissioners of roads, or by the inhabitants of the neighborhood, as a public road ; that it had been obstructed by several persons, in various places, for twenty years; that during a period of ten or twelve years, the mill to which it led had been destroyed and the road abandoned ; that the road had not been entirely obstructed, but only turned ; that the defendant was indicted for obstructing a public road, and that this road led only to a grist mill; as well as the law in relation thereto.
    ORDER OF THE COUNTY COURT.
    At a Court held and continued by adjournment for Chester county, at the court house of said county, on the 31st day of July, in the year of our Lord one thousand seven hundred and ninety-eight, and of the independence of the United States of North America the twenty-third, present Joseph Brown and William Gaston, Esquires, two of the Judges of the Court.
    On petition, ordered, that a travelling road be laid out and cleared from Thomas Wallace’s to Robert Owens’ grist mill, and to be laid out at the direction of Thomas Wallace and William Monahen, the nearest and best way, so as not to interfere with the inclosure of any person whatsoever, and to be cleared and kept in repair by the persons who live contiguous thereto, and have the benefit thereof; also, a road from the mill to intersect the Charleston road near the lower corner of Thomas Cabeen’s field, and thence into the Fishdam road above William Murray’s, on the same conditions and premises as the above, at the direction of James Vants.
    Ordered, that a public road be laid out and made, the nearest and best way, taking off the Charleston road where the old road formerly took off, below Stinson’s old field, to strike the Fairfield county line at the same place, at where the *Mountain Gap road intersects the said Fairfield county line, at the direction of John McDaniels; and that all persons living two miles of said road, within the limits of said county, be called on to clear and keep the same in repair.
   Curia, per

O’Neall, J.

In this case my opinion expressed on the circuit has undergone no change. The facts have been found by the jury, that in its origin, this road was laid out as a public road ; that it has been used as such ever since ; and that there has been no such change of it as would affect its allowance.

It only then remains to inquire whether, in law, it can be regarded as a public road ?

I think there is some confusion, in cases of this kind, by the manner in which highways are defined in the books. The distinction between public roads, (consisting of highways and private roads or paths,) and private ways, have not been observed, Judge Brevard, (3 Brev. 85,) in the case of exparte Withers, has, I think, properly classed and distinguished public roads. He says “ public roads are best distinguished into two sorts, namely, highways and private roads or paths. A highway is a principal road leading to a market town, or some place of general resort, and is commonly travelled by all kinds of people. Private roads are neighborhood ways, not commonly used by other than the people of the neighborhood where they are, although they may be used by any one who may have occasion to do so.” A private way, on the other hand, is a way arising by grant for the use of one or more individuals. The road law of 1721, (P. L. iii. see. 19,) provides that “ all and every the respective commissioners above mentioned, within their parishes or divisions, or the majority of them, shall, with all convenient speed after the ratification of this Act, at the equal charge and labor of all and every the male inhabitants residing within the respective divisions aforesaid, from the age of sixteen to sixty years, make, mend, alter and keep in repair, all and every the high roads, not exceeding forty feet wide, prívale paths, bridges, causeways, creeks, passages and water courses, laid out and to be laid out in the aforesaid several pre-cints and parishes ” This Act, it will be observed, is in exact conformity to Judge Brevard’s classification of public roads. By public authority, two kinds *of roads then existed, and were afterwards to exist, in South Carolina, “high roads” and private paths.” What was meant by “ private paths,” has been, I think, further elucidated by Judge Brevard, in the case exparte Withers, (3 Brev. 86.) He says, “ by the words “ private paths,” it seems clear that the Legislature meant roads free and common to all who might choose to make use of them ; that is to say, public ways diverging from and running across the main or principal roads or highways, commonly called “great roads,” and not private paths exclusively appropriated for private purposes.” This definition embraces, I think, very clearly, the road in question. But this can be made more apparent by a further reference to our legislation on this subject. By the Act of 1785, sec. 55. (P. L. 385,) the Judges of the county court were clothed with all the power and authority of the commissioners of the roads in relation to roads. The Act of 1788, (P. L. 443-4,) provided for the appointment of commissioners of the roads ; and by the 6th section, provides that they shall be authorized and required to lay out, make and keep in repair all such “ high roads, private paths,” &c., as they shall judge necessary. The 17th section of the same Act, (P. L. 447,) provides that the Judges of the county court shall be vested with the same powers respecting the high roads and bridges with which the commissioners were by this Act clothed. Under this authority they laid out the road in dispute, and its origin there can be therefore no question that it was a public road, distinguished from a high road as a private path. Independent of the public character of the road, ascertained from its public origin, the terms made use of in the order a travelling road,” make it as open to public use as if the words had been in the succeeding order — .“a public road,” used by the Judges, ordering another road to be laid out. But neither the commissioners of roads nor the judges of the county court ever had the power to lay out a mere private way. This is conclusively shown by exparte Withers, (3 Brew. 83.) The power of laying out a mere private way, never having been conferred, as I have no doubt it never could have been constitutionally exercised or conferred, by the Legislature, it follows, that all roads laid out by public authority, must be regarded as public roads, in the obstruction of which a nuisance may be committed. It is, however, supposed, unless the public are liable to keep the *road in repair, that it cannot be regarded as a public road. Bnt this I do not admit. There are many roads which are essentially public, where there is perhaps no liability to keep them in repair. An instance of this kind will be found in the case of Rowland vs. Wolf, (1 Bail.) On the present occasion, I am, however, far from believing that the commissioners of high roads, for Chester are not liable to keep this road in repair. For the order directing the roads to be laid out, directs “ that it shall be cleared and kept in repair by the persons who live contiguous thereto and have the benefit thereof.” This is in exact conformity to the powers conferred on the county court judges and the commissioners of roads by the Acts of ’85 and ’88. A road laid out and directed by the county court judges in ’98, to bo kept in repair, was in pursuance of the power delegated to them by the Legislature, and is in law the same as if the Legislature, by Act, had done the same thing. Looking at it as a road established by the Legislature, and by Act directed to be kept in repair, there could be no doubt of the liability of the commissioners to keep it in repair, no matter how long they might have neglected it. This last observation however, must be always taken with the qualification, that the road had not lost its public character by non user. On the present occasion, the jury have found that the road had not been so long disused as to destroy it.

See Infra, 329. State v. Pettus, 7 Rich. 393. State v. Sartor, 2 Strob. 60. Nash v. Peden, 1 Sp. 21. Heyward v. Chisholm, 11 Rich. 262. 6 Rich. 399. 5 Rich. 186. An.

Gregg and McAlilly, for the motion. Player, Solicitor, contra.

These views, it seems to me, end all controversy about the character of the road, which might otherwise arise from its terminus. The cases in which that would have effect are where the way is to be referred to prescription merely.

The motion is dismissed :

the whole court concurring. 
      
      а) Act of 1741. 9 Stat. 127. 2 N. & McC. 527. 4 McC. 68. 3 McC. 170. An.
      
     
      
       9 Stat. 54, § 19. An.
      
     
      
       7 Stat. 237. An.
      
     
      
       9 Stat. 309. An.
      
     