
    H. J. Rowland v. John Wolfe.
    Columbia,
    May, 1828.
    To establish a right of way by prescription, the user must have been adverse to the rights of the owner of the soil, and exclusive in the person or persons for whom it is claimed. The mere use of a road, which has subjected the owner of the land to no inconvenience, as for instance, a road through an uninclosed forest, which, although made by the inhabitants of the neighborhood for their own convenience, was always open to all persons, cannot, by any lapse of time, confer a right of way upon individuals.
    Tried before Mr. Justice Gantt, at Spartanburgh, Fall Term, 1827.
    This was an action of trespass on the case for obstructing plaintiff’s way over the land of the defendant. The plaintiff claimed by prescription, and proved that he had used the road for upwards of thirty years. One of the witnesses had known the road for forty-seven years ; another for forty years, during which time, its position and course had never been altered, until the obstruction by the defendant, for which the present action had been instituted. The witnesses considered it a “ settlement road that is to say, a road for the use of the neighbours: Never heard it called a public road; but it was open, and all who chose, might make use of it. The plaintiff offered to prove by one of the Commissioners of the Roads, that the Board had refused an application to open the road, on the ground that it was a private way, and not a public road, and that.they had no authority over it. This evidence was objected to by the defendant, and the objection was sustained by the Court.
    His Honor, the presiding Judge charged the jury that the evidence was sufficient to establish the road in question to be a public highway, rather than a private road. The plaintiff had shewn no exclusive right in himself, nor in any person else or any set of persons; and although it was used chiefly by the neighbours, it was open to all who passed in that direction, and there was no evidence that one had a better right than another.
    That if it were a public road, a private action would not lie for obstructing it, unless some special damage had been sustained, and none was charged in this case: And the remedy, therefore, was by indictment.
    The Jury found for the defendant, and the plaintiff moved to set aside their verdict, and for a new trial, on the following grounds.
    1st. That his Honor erred in rejecting evidence that the Commissioners of the Roads did not regard the road in question as a public road.
    2d. That his Honor misdirected the Jury, in charging that the evidence was sufficient to prove the road public.
    3d. That a road used only by the inhabitants of a particular neighborhood, is not a public, but a private road, for the obstruction of which, any one of the said inhabitants might maintain an action; and that his Honor erred in charging otherwise.'
    Irby and Bobo, for the motion.
    Henry and Earle, contra.
    
   Nott, J,

delivered the opinion of the Court.

This case was submitted to the Jury upon the evidence, merely to determine whether the road in question was a public high road, or a private way. The Jury have found a verdict for the defendant. We have not the record before us, and, therefore, do not know whether the Jury have, in so many words, found that it is a public highway, or whether that is only an inference drawn from their having found for the defendant. But I do not consider that an important inquiry: If it must be considered either one or the other, I think the preponderance of evidence in favour of the verdict; the defendant certainly did not shew any exclusive right in himself. But Í am inclined to think it ought to be considered as a convenient thoroughfare, which the people of the neighborhood made use of by the permission or acquiescence of the owner, of the soil, rather than a public highway, over which every one might claim a right to pass. Most of the old roads in this country were, as they must be in every new and unsettled country, laid out by accident, or as convenience might direct, without the sanction of public authority. They were afterwards altered, changed, or entirely discontinued, as population advanced, or as necessity or convenience required. The road in question appears to me to be one of that description. It has become so unimportant, as not to be considered worthy the attention of the commissioners of the roads; but has, nevertheless, remained a public neighborhood road, common to all who have thought proper to travel, that way. It has been convenient for the plaintiff, in passing from one plantation to another, to travel along that road ; but there is no evidence to shew that he has any exclusive right. No man has a right to appropriate the property of another to his own use. A right of way over the land of another is an accommodation, which no one can claim without an equivalent. A right by prescription, is founded on a presumption, that a grant once existed, which has been lost by lapse of time. But lapse of time is not alone sufficient to afford such a' presumption. The use must be adverse to the claim of the owner of the land. Merely passing over an uncultivated and uninclosed forest, which is common to every one, cannot, by any lapse of time, give, a right to any individual. To determine a question of this sort, we must look to the situation of the country and the habits of the people. We know that it is an indulgence allowed to every body, by -the universal consent of the country, to make roads through unincloséd lands in any direction, without any kind of restraint. But no one ever dreamed, that by this kind of courtesy, a neighbor might, by and by, claim a right to such a road, to the exclusion of the owner of the soil. Such an use is not adverse-: It deprives the owner of no right, and subjects him to no inconvenience. A privilege thus enjoyed, can never be claimed as a right; whether we consider this, therefore, as a common highway, belonging to the public, or a mere thoroughfare allowed to the neighborhood. by the courtesy of the defendant, the plaintiff has no such right as will enable him to maintain an action; and the motion must, therefore, be refused.

Motion refused.  