
    
      The Town Council of Aiken vs. George B. Lythgoe.
    
    where the Legislature, in incorporating a Town, gave the Council authority to keep open and in good repair all the roads, streets and highways, within the corporate limits, and there were, at the time, hut two public roads within the limits, though a map or plan of the Town, laying it off into streets and squares, had been previously made by surveyors — held
    1. That it was a question to be submitted to the jury and decided by them, what roads, streets and highways the Legislature had in contemplation when they used those words in the charter — whether they intended only the two roads then open and in use, or the streets delineated on the map or plan; and, if they intended the latter,
    2. That it was competent for the Legislature to set aside for public use the spaces delineated as streets on the map or plan, and to invest the Council with authority to open and keep them in repair.
    Defendant had purchased of R. a lot of eightoen acres of land within the corporate limits, over which several of the streets, as delineated on the plan, passed, üpon a further question, whether R. had dedicated those streets to the public use, held
    
    1. That it was competent to show, as against the defendant, by parol, that whilo R. was owner of defendant’s lot and other lands within the corporate limits, the Council had dug a well for public use, at the instance of R., on another street, known as such only from its being delineated upon the plan; and, also,
    2. That it was competent to show conveyances by R., while owner of defendant’s lot, of other lands within the corporate limits, calling for the disputed streets as boundaries.
    
      Before Mtjnro, J., at Barnwell, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows :
    “The declaration in prohibition stated that by the Act of 1835, incorporating Aiken, and by the Act of 1836, enlarging the powers and duties of its Intendant and Wardens, full power and authority are given to, and it is made the duty of the Town Council, to keep all roads, streets and alleys, within the limits of the said town, open and in good repair; and that among others, there are certain streets in the said town, called and known in the plan of said town, and by the citizens thereof, by the respective names of Laurens, Newberry, Chesterfield, York, Union, Kershaw, Sumter, Horry, Marion, Williams, Maribo rough, Colleton'and South Boundary streets. That said streets have been and are dedicated to the public, as highways and thoroughfares, for the use and benefit of the people of said town, and as such streets were incorporated ‘ as a part and parcel, and an indispensable ingredient ’ of the said town, by the Act aforesaid. Yet that the said George B. Lythgoe, denying that said streets are, or ever have been dedicated to the public use, as streets or highways, in the year 1853 fenced and closed up the said streets, to the great inconvenience of all the good people of Aiken, <fcc.
    “ The defendant pleaded that the Act of 1835 incorporates a certain tract of land extending for one mile on every side of the bridge at the rail road depot — that the streets and plan of the said town set forth in the declaration are not referred to in the said Act, and form no part of the grant of incorporation — that the roads, streets, lanes and alleys set forth in the declaration never have been dedicated to the said town, nor accepted by the corporate authorities — that the said Act of incorporation invests the said Town Council with all the powers granted to the Commissioners of Hoads and no more, and that the said Town Council have no authority to open any roads, streets, &c., except after due notice and upon a full compliance with all the requirements of the said Act — that the said Town Council have neglected to comply with the terms of the said Act, and insist upon appropriating the land and freehold of the defendant without notice or compensation, and against his consent.
    “ The aforesaid declaration was filed in pursuance of an order made by Judge Glover, at chambers, dated Orangeburg, 8th of August, 1853, in the matter of ‘The State, ex relatione George B. Lythgoe, against the Town Council of Aiken.’
    “ The plaintiffs offered in evidence a document which they styled a ‘ Plan of the Town of Aiken.’ It is dated the 19th September, 1834, and was executed by C. O. Pascalis and A. A. Dexter, two Civil Engineers, who were at that time in the employment of the South-Carolina Canal and Railroad Company. It professes, on its face, to have been executed at the request of Major Alexander Black, agent of said Company. Perhaps it will be best to quote the precise words of the document:
    
      “ ‘ The State op South-Carolina, i “1 Barnwell District. \
    
    
      “1 At the request of Major Alexander Black, agent of the South-Carolina Canal and Railroad Company, we have surveyed and laid oif twenty-seven squares or blocks in the Town of Aiken, bound on the North by Edgefield street, on the East by Williams street, on the South by Railroad Avenue, and on the West by Newberry street, as in the above plat represented.
    
      “ ‘ Witness our hands this, the 19th day of September, A. D., 1834.
    “1C. O. Pascalis, D. N. and Chief Engineer.
    
    “‘ Andrew Alfred Dexter, Civil. Engineer.’
    
    
      “ This plat is a parallelogram, and has marked upon it a North and South, East and West Boundary street. There are many names now written on several of the squares of the plat, which, it was admitted, were not there at the date of its execution. York and Union streets are represented on the plat as cross streets, parallel to each other, and running nearly North and South. Colleton and South Boundary streets are also represented as running parallel to each other, but at right angles with York and Union streets — Fairfield street (for obstructing which, the defendant was indicted and found guilty at Fall Term, 1852) lies between York and Union, street, and is parallel to them.
    
      “ ‘ The defendant owns eighteen acres of land in the Town of Aiken, which he acquired by purchase from James Randall — • York, Union, Colleton and South Boundary street are all represented on the said plat as running through the defendant’s aforesaid eighteen acres.
    “ Mr. John Price was called for the plaintiffs: This witness said he had lived near Aiken for 53 years — that the defendant’s land is opposite to Mr. Schwartz’s hotel, and lies on the South side of the railroad from Mr. Schwartz — that Union street runs between Mr. Schwartz’s and the railroad depot, and across to the railroad — that there are two blocks where Union and York streets are, and that these blocks embrace the 18 acres owned by the defendant — that defendant’s land was laid off in lots some time before James Randall (defendant’s vendor) purchased it. Witness purchased lots for his two sons, on the South side of the railroad, from James Randall, and helped to measure a lot on the opposite side of the street — his two sons’ lots adjoined each other — William Buckhalter surveyed these lots, and used a tape line in measuring them — James Randall was present— Buckhalter is dead — Buckhalter had a map of the town to survey by, and laid off the lots by that map — witness don’t recollect that any one laid out streets on the South side of the railroad, before 1835, when Pascalis and Dexter laid them out— don’t know that Randall set apart for a street any part of the land he sold to the defendant — the Railroad Company has dug a deep ditch on the South side of the road, across streets, lots, and every thing else — Mrs. Williams lives less than three-quarters of a mile from the bridge, opposite the depot — Randall excepted the streets when he sold to him (witness) for his sons— Randall’s land has always been called the ‘ Kennedy Tract ’— Randall sold some lots — on the 1st of May, 1850, he sold 18 acres of the ‘ Kennedy Tract ’ to defendant — Randall said that he intended to plant his land, for that it would be some time before it would be available as lots — the whole of the ‘ Kennedy Tract ’ lies within the limits of the Town of Aiken — Mrs. Williams’ 100 acres are also within the limits, and the whole of it is under fence and cultivated — Buckhalter also has land in the same condition — Williams’ old place is likewise in the same condition. In 1835 public roads ran through the Town of Aiken, to wit, the Edgefield Road, and Old Whiskey Road. The street from the brick bridge to Edgefield was in existence in 1835, and the stores of Bowie, and others, were then located on that street — cotton, chickens, &c., were sold in said streets in 1835 — the house of Mrs. Williams, and the cottage of Pas-calis and Dexter, were the only houses existing on the South side of the railroad in 1835 — there were two bridges across the railroad excavation; one across the street running to Edgefield, and the other opposite the depot — there was a third bridge between the depot and the brick bridge, nearly level with the ground — the Railroad Company enclosed the land from Marsh’s to Oliver’s hotel, for their work-shops, and kept a gate at, the entrance of the enclosure — there were bridges opposite to Union, York and Laurens streets — Fairfield, Chesterfield and Newberry streets were intersected by the railroad excavation, and at these streets there are no bridges across the railroad excavation — roads crossed said bridges in 1835, and were then used as public roads. The Charleston and Edgefield Road traversed the North-east corner of Aiken, and ran by Williams’ old house — Whiskey Road ran in the direction of what is now Market street — no other public roads ran through there then— there are no fields lying within South Boundary street — Randall’s field was outside of South Boundary street — Randall spoke of the streets when he sold to witness — people used the bridges to go to Coker’s Spring.
    
      “ Bethel T. Rogers — Purchased a lot two years ago, sold by the Commissioner in Equity as part of the estate of James Randall, deceased. South line of said lot is on Colleton street. Has seen stakes on the South side of the railroad within one-half mile of the bridge at the depot. Saw them last Friday; also saw them two years ago — one of the stakes had fallen from decay and had been replaced by a new one — this was at the corner of Colleton and Kershaw streets. Also saw two stakes 150 feet apart — they were in a line parallel with the street. William Buckhalter pointed them out to witness. Buckhalter is dead — he was a surveyor — he was the father-in-law of James Randall, and lived just outside of Aiken, and had lived there a long time previous to his death. There was a road on the East line of witness’s land — this road ran across the railroad before the new excavation was cut. Buckhalter surveyed witness’s lot, and witness paid him $2 for it — this lot' is not directly opposite the railroad depot, but is a little to the East of it — witness’s lot called for a street only on one side, to wit: Col-leton street — when witness bought at Commissioner’s sale, the forest trees were standing in Colleton street, on defendant’s land. When this controversy first arose between the Town Council and the defendant, the forest trees were standing in Fairfield, Union, Kershaw, Colleton and York streets, more or less — there are no bridges across the excavation at either Sumter, Kershaw or Fairfield streets, or Chesterfield street — there are bridges across at Union, York and Laurens streets — every other street is bridged across the new excavation — there is no necessity for any bridge except to the West of York, on the old railroad. The distance from Mikell’s house to the centre of the railroad avenue is about 75 feet — the distance is greater from the centre to the opposite side — travellers could pass up or down the avenue, and cross at some of the bridges, on either side of the railroad. The population of Aiken is five or six hundred — there are two or three hundred houses there — there are some eight or ten houses on the South side of railroad — these are mainly to the East of the brick bridge — about seven houses are to the West of the line of Laurens street — Steedman’s house is to the East of Laurens street, and there are four houses beyond it — there are a great many houses on the North side of the railroad. Marsh and Hickson once built two stables in the streets, and they were pulled down. All the corporators have built in reference to the streets, so far as witness knows.
    “ Evan Prothro. — Has been acquainted with Aiken from its earliest history — purchased three lots on the South side of the railroad — two of them lie to the East, and the other to the West of defendant’s land — bought them as lots. The buildings of the inhabitants of Aiken have conformed to the plat, without exception, from the beginning. Witness was once a member of Council — Council was governed by the plat, and have had possession of it all the time. Improvements are being made on the South side of the railroad, and property there is worth two or three times as much as it was five years ago. Council, while witness was a member, did not open all the streets designated on the plan, because they were not called on to do so, and they were not then used as streets. Witness has seen stakes on South side of railroad, in South Boundary street- — they were in a straight line — witness found a stake at the end of the ditch in Union street — saw stakes in several places — has known these stakes for the last twelve or fifteen years — some of them have rotted down. Witness and James Randall were at the same time members of Council, several years ago. There was a well in Fairfield street, on the South side of the railroad, which witness thinks was dug by Council — York street was cleaned out ten years ago, as far as Mrs. Williams’ house — at that time there was no other building on it. The academy is nearer to Mrs. Schwartz’s that Mrs. Williams’ house. Witness don’t know who put said stakes there. The blacksmith’s shop is in York street. Defendant’s land was in woods when he bought it from Randall. There were no houses on South side of railroad in 1839, except Mrs. Williams’, Mr. Owen’s, and Captain Robinson’s. Council gave witness permission to fence a street until they revoked the license. Never saw the aforesaid plat, or any paper like it, before the year 1840. Witness never interested himself about a street on the South side of the railroad, until about ten years ago, when he went to live in Aiken. Randall planted an old field on the Kennedy tract, near to Mrs. Williams’ — Mrs. Williams plants, and part of her enclosure is within the limits of the town, but don’t know how much.
    The plaintiffs admit that they have not proceeded according to the Act of 1825, in reference to these streets — they also offered, at this stage, three deeds — one from James Randall to James M. Price, dated 8th November, 1847 — another from James Randall to William T. Jones, dated 22d November, 1847, and a third from James Randall to Q,uincy Price, dated 29th November, 1847; these deeds were objected to, on the ground that they related to lands outside of the defendant’s land, and had nothing to do with this issue — the objection was sustained.
    “ John F. Cutler. — Is a member of Council — has been elected since these proceedings were instituted. He heard James Randall speak.of certain streets — Randall bought the Kennedy tract, and a week or two after his purchase he shewed to witness York, Fairfield, South Boundary, Chesterfield, and several other streets — he also pointed out different stakes from one corner of a lot to another — he said he intended to have the street cleared out, and sell the lots as he could dispose of them— but he did not designate any particular part of the ' Kennedy tract.’ There was a well dug and paid for by Council, in a street on the South side of the railroad. There was a road leading from Mrs. Schwartz’s, across the railroad, to Coker’s Spring, by Mrs. Williams’ — it has been in use 18 or 19 years, and has been worked upon — it ran through the street in which the well is. Witness has lived about twenty years in Aiken. The road to Coker’s Spring was zig zag. Never saw plat before 1844. Fairfield street was opened some years ago by Council — witness saw no notice — some of the streets are obstructed by the railroad excavations.
    
      “ The defendant offered in evidence a deed from James Randall to himself, dated 31st May, 1850, conveying 18 acres, more or less, situated in the town of Aiken, and being a part of the ‘Kennedy tract’ — also, the petition of the citizens of Aiken, praying an Act of incorporation. This petition refers to no plat whatever — it states that the petitioners are frequently disturbed ' by disorderly persons, and prays that the town of Aiken may be incorporated, and that the same privileges may be granted to them as had been granted to the village of Edgefield, and that the corporate limits of the Town should extend from the bridge situated at the railroad depository, one mile on each side, making a two mile square. Martin Buckhalter, a witness called by defendant, stated that Pascalis and Dexter made a survey, most of which was confined to the North side of the railroad — that they did not run any lanes, streets or alleys on the South side of the railroad. The owners of the Kennedy tract were infants and married women — old Kennedy died forty years ago — Mrs. Sellers’ descendants were infants, and Mrs. Sellers died before her father, old Kennedy — Randall bought the Kennedy tract from the Commissioner in Equity — no streets, lanes or alleys were ever opened over Lythgoe’s land, except during the last summer, when some bushes were chopped out of Fairfield street. The opening of five streets, each 100 feet wide, over the defendant’s 18 acres, would not enhance its value. Defendant has a residence there — witness built a house on the Kennedy tract for Randall. Aiken stands on land which originally belonged to Cosnahan and the heirs of Kennedy— Cosnahan sold his to Marsh and Rogers before the Town was built — Railroad Company owned lots on North side of railroad — Railroad Company advertised and sold a good many lots in Aiken. In 1835 there were a few buildings up on Market street — the hotels of Marsh, Oliver, and Mrs. Schwartz, were then built — between Marsh’s hotel and the corner, there were a few houses. Those were the only streets then used, to wit: Market street, Railroad Avenue, and the Old Whiskey Road, running towards Coker’s Spring. After 1835, Aiken improved pretty fast, till 1839, when it was burned down — a good deal of cotton and goods • used to be sold there — since 1848 Aiken has improved rapidly, and is still improving — lumber and labor are in great demand, and the place is one of great resort for foreigners seeking health — the hotels are well patronized. The house built by witness for Randall, on the Kennedy tract, was not built on a street — Randall fenced it in — the front fence is parallel with Railroad Avenue — the Western end of the fence is on the road leading from the blacksmith shop to Mr. Williams’ — the fence is a square — this house is between the old and new railroad. In 1834 the blacksmith shop, the railroad buildings, some stores, and a house or two, were all the buildings in Aiken. There was a market place in Aiken before it was incorporated — afterwards Council built a two-storied market, and used the upper room as a Council Chamber. Cotton speculation, and the breaking of Bowie’s bank, injured Aiken more than the fire did. Prothro’s steam saw mill is in the corporate limits, on the South side of the railroad. Randall’s land was sold after h-is death, in four, ten, fifteen and twenty acre lots, and nothing was said at the sale about streets — Randall died after the year 1850 — Mr. Shubrick bought a twenty-one acre lot, and it was fenced in at the time he bought — Randall had fenced it. Joab Mosely says that the survey of Pascalis and Dexter was made on the North side of the railroad — they ran no streets, lanes or alleys on the South side. Witness was the auctioneer who sold Randall’s land, at the sale thereof, made by the Commissioner in Equity — at this sale not a word was said about streets — sold from parcels of twenty acres down to smaller parcels, and sold streets and all. Witness was told by James Randall that whenever he (Randall) had a mind to give a street, he would do so, and that if he was not so minded, he would sell as he bought, without any reference to the streets. Bowie’s bank broke, and that injured the trade of Aiken more than any thing else — -a good many of the merchants then failed — cotton did not sell so brisk after that. Before 1835, Bowie, Prothro, Landrum, James Mosely & Co., and several others, kept store in Aiken. Marsh & Rogers bought from Cos-nahan, and they swapped with the Railroad Company, and divided lots among themselves in some way or other. Witness remembers the fact that the Railroad Company once advertised that they would sell certain lots, but cannot recall the time— Steedman bought a lot containing 50 or 60 acres — the land was not sold in lots — Railroad Company own some few lots yet— Hammond bought one piece of land — the sale was made at the Market house' — there was some clamor made about streets not being reserved — 'Witness remembers a small piece sold to Johnson — it was altogether in the street — Frank Schwartz objected to it. Witness has seen the old stakes on the South side of the railroad — Captain Robinson put them down — he staked through the Company’s land and the Kennedy tract — Mr. Brith would not permit him to stake his land — this was about 18 years since Robinson was the Railroad Company’s agent of transportation. The defendant has been about Aiken some twenty-five years— he was there when the road was built, and the town was incorporated. Defendant is an engineer. H. W. Conner was president of the road in 1850 — Conner and the defendant bought this land before the new cut was made — Steedman bought a body of 150 acres, at three dollars per acre, on the North side of the railroad' — Hammond bought 130 acres, in the same way, about two years ago — these purchases were made on the Mosely and Fox tracts — there were no streets open' — Steedman was Inten-dant at the time he purchased — Johnson fenced in his lot, which was in the street, but removed the fence afterwards. Robinson put down the stakes-aforesaid after 1835 — there was no one to forbid his staking the Kennedy tract, the owners thereof being minors and married women. Witness never heard any claim set up in regard to streets on the South side of the railroad until within the last three or four years, when Randall sold to defendant, and the latter fenced in his purchase. There were fields on the Kennedy tract.
    “ Evan Prothro was recalled by the plaintiff’s attorney, and stated that Johnson had taken down his fence and surrendered the street which is on the south side of the railroad and runs up to the railroad; Lythgoe claims the street to the south of the place surrendered by Johnson.
    “ A witness was asked by the counsel for the plaintiffs whether the change of the railroad track in Aiken was made with the consent and approbation of the citizens ; it was objected to on the part of the defendant, that the object of this question was to elicit the mere opinion of the witness ; ruled that the witness could not be allowed to express a mere opinion, but that he might be questioned as to any facts, from which the jury might deduce an opinion in regard to the point in hand.
    “ The plaintiffs also offered to prove by parol testimony that the Town Council had dug a well in Fairfield-street, at the instance of James Randall. They were permitted to prove that the well was dug by Council, but the defendant objected to their going into parol testimony to prove that it was dug at the instance of Randall, on the ground that the journals of the Town Council furnished the highest evidence on that subject, and should be resorted to, especially as the said journals were in Court, and at the command of the plaintiffs’ attorney. This objection was also sustained.
    
      “ The plaintiffs were allowed to give in evidence the declarations of Randall in regard to the land of defendant, made while Randall was in possession, and before he sold to defendant, but they were not permitted to give in evidence any such declarations, (verbal or written,) made in regard to land outside of the defendant’s limits. It was not perceived how such declarations (admitting them to have been in disparagement of the title of the defendant,) could not be given in evidence against the defendant, and therefore it was, that the aforesaid deeds from Randal to Price, Jones & Price, were ruled out.
    
      “ In reference to the authority of the Town Council to open new streets, &c., I instructed the jury that whenever a corporate body claims a right to appropriate private property to corporate uses, it must exhibit a clear and unequivocal authority to do so, derived from an Act of incorporation. But it was clear no such authority had ever been delegated to the plaintiffs by the Act of 1835, to open new streets in the town of Aiken, but that their authority was restricted to keeping open and in repair such streets only as were in existence at the date of their charter — and inasmuch as there is not the slightest reference to the map of Pascalis & Dexter, either in the original Act of incorporation, the Act of 1835, nor in the Act of 1836, enlarging the powers of the corporation over streets, &c., the power in question can only be exercised by a strict compliance with the provisions of the Act of 1825, prescribing the mode and manner of opening new roads by the Commissioners of Roads.
    “ The jury found a verdict for defendant.”
    The plaintiffs appealed, and now moved this Court for a new trial, on the grounds :
    1. Because, it is respectfully submitted, that his Honor erred in overruling and rejecting as incompetent evidence offered by the plaintiffs, three deeds made by James Randall during the time he owned the locus in quo, to James M. Price, Wm. Thomas Jones, and Quincy Price, in which the lots conveyed are described as being in the “ town of Aiken,” and calling for the disputed streets, Union, York and Colleton, as boundaries.
    
      2. Because his Honor also erred in overruling parol testimony offered by the plaintiffs to prove that the change of the track of the railroad in Aiken, was with the consent of the Town Council, and also in rejecting the same kind of testimony tendered by the plaintiffs to prove that the Town Council had dug a public well in Fairfield-street, on the south side of the railroad, during the time that James Randall was owner of the land, and a member of Council, and at his instance.
    3. Because his Honor erred in charging the jury, that the plaintiffs had no authority, by the charter of 1835, to open any streets in the town of Aiken, and that their power and duties, in regard to streets, were confined and restricted to the keeping open and in repair such streets as were in actual use at the date of their charter in 1835; and also in charging the jury, that the said charter was imperfect, both as to the powers of Council over the streets, and the extent and limits of the town incorporated.
    4. Because his Honor erred in charging the jury, that the two plans or maps of the town of Aiken, drawn by Pascalis & Dexter, in September, 1834, shed no light on the subject, had no bearing on the case, and should have no more influence with them in making up their verdict than so much blank paper.
    5. Because the verdict of the jury is contrary to the law and evidence of the case.
    
      Bauskett, for appellants,
    cited Act 1835, 6 Stat. 530; Act 1836, 8 Stat. 449; State vs. Lythgoe, 6 Rich. 112.
    
      Aldrich, contra,
    cited Dartmouth vs. Woodward, 4 Wheat. 626; People vs. Insurance Company, 15 Johns. R. 358; 2 Cranch, 166 ; Harp. 381; Ang. & A. on Corp. § 111; Zylstra vs. Charleston, 1 Bay, 182 ; Heise vs. Town Council, 6 Rich. 404; 1 Stat. 437; 4 Pick. 473; 5 Art. Con. ü. S.; 9 Art. Con. S. C.; Ev. Road L. 8; Rep. &. Res. 1836, p. 147; Rules H. R. p. 45; 2 Mass. R. 269 ; 1 Bouv. Inst. 93; 2 Amer. L. C. 515; Pringle vs. Carter, 1 Hill, 55 ; Commissioners vs. Taylor, 2 Bay, 282 ; Commissioners vs. Murray, 1 Rich. 335; Carver’s case, 5 Strob. 217.
   The opinion of the Court was delivered by

Withers, J.

The difficulty of this case (and it is an instance of a large class of cases) arises out of the uncertainty of the language employed in the Act incorporating the town of Aiken, and that which amended it. The limits of the town were to be one mile radius, from the depot bridge of the railroad. By the Act of incorporation (Dec. 1885) it was made the duty of the Intendant and Wardens “ to keep all roads, streets and alleys, within the said limits, open and in good repair, and for that purpose they are invested with all the powers granted by law to the Commissioners of Roadsand for neglect therein they were subjected to like penalties imposed on such Commissioners. Power was also given to the Intendant and Wardens, “ to compound with persons liable to work on said roads, streets and alleys, and to release such persons as may desire it, upon the payment of such sum of money, &c;” and a resident within the limits was released from liability to road-duty beyond such limits. No additional powers as to roads, <fcc., were given by the Act of 1836; though the word used then was “highways,” instead of “ roads.” Indeed it is not easy to see an object in the Act of ’36, touching Aiken. In no particular ■ does the situation of the corporation seem to have been thereby altered, unless it be simply in the declaration as to the mode of collection of fines imposed by it. The question here (as it was in the indictment against this defendant, vide 6 Rich. 112) is this : What roads or highways, streets and alleys, within the corporate limits of Aiken, did the Legislature have in contemplation, when they used these words in 1835 and 1836? Did they refer only to such as were then open and in use, or to such as were designated on a certain plat or plan of a town called “ the town of Aiken,” constructed as early as September, 1834, at the instance of the South-Carolina Canal and Railroad Company ? In December, 1835, there seem to have been within the limits incorporated but two highways, to wit: the Edgefield and the Old Whiskey roads — unless, indeed, we add what was called, or designed to be called, Railroad avenue. Those two roads have been diverted, and perhaps the Old Whiskey road, within the corporate limits, is nearly obliterated. Streets, lanes, alleys, as distinct from these, were not in existence, except as indicated in said plat or plan. If the Legislature used these words, having reference to said plan, then the result on the circuit (being a verdict for the defendant) was wrong; for notwithstanding we agree to the sound principles of corporation law, derived from Magna Oharta, the Constitution of this State and of the United States, commentators of received authority, and adjudged cases, which have been urged for this defendant, yet the Legislature were undoubtedly competent to set apart and devote to corporate and public uses such spaces upon freehold, within the corporate limits, as to them should seem good. Whatsoever of that kind the Legislature has actually done, invests such places with the character of streets or highways, and bars intrusion upon them; and the plaintiffs are authorized to proceed in the business of preparing them for actual use. Now the language of the Legislature is not of clear and precise import- — the subject-matter, as it regards the question here, is uncertain — there is a latent ambiguity — evidence and reasoning on both sides have been resorted to, in this case, as in that of the State vs. Lythgoe, for the purpose of expounding it. We cannot and need not repeat here all that has been and may be said on either hand. If the meaning of the words used by the Legislature be legitimately a question of doubt, and of fact — if evidence be legitimately receivable upon it — it should have gone to the jury — and this much was adjudged in the former case, in relation to a contest involving the very same point, resting upon the same basis, though the complaint of the plaintiffs, made through the State, related to a different street. But the instruction to the jury was, that no power had ever been given to the plaintiffs to open new streets in the town of Aiken, except by a strict compliance with the Act of 1825, (regulating the action of Commissioners of Roads,) that the power of the corporation was confined to the keeping open and in repair of such streets only as were in existence at the date of the charter and that in that charter or the amendment of 1836, there was not the slightest reference to the map of Pascalis & Dexter. Presuming always that the jury are guided by material instruction from the Court, when they find accordingly, it is manifest that they excluded from their deliberations any inquiry whether the Acts of Assembly adopted streets indicated upon the plan of Pascd-lis & Dexter. If this be right, it seems this Court ought to have remanded for a new trial the case of the State vs. Lythgoe, wherein the said inquiry was submitted to the jury, upon evidence ; then heard and their finding that the street then in question was established as a public road in the town of Aiken» was affirmed in this Court. It is true, the question of dedication by Randall, the defendant’s grantor, was also then involved, and it cannot be affirmed that the verdict did not turn upon it; and it is true, likewise, that Fairfield-street, then the subject of contest, and none other, might have been dedicated ; yet if the other inquiry was proper for the jury then, so it is now. We mean to rule nothing as to the sufficiency of the evidence, because the jury must respond to that. Nor do we mean to say that the Judge presiding may not submit to the Jury, according to his discretion, the impression which the facts have made upon his mind. In the present instance, we conclude from the report, that more was done — that in fact, the action of the Intend-ant and Wardens, under the Act of 1825 alone, was the point submitted to the jury.

The plaintiffs allege also a dedication of the street now in question, by Randall, and they adduced evidence to that point. Among the facts which they proposed to prove were, 1st, parol evidence that a well was dug by the corporation, and for general use, in Fairfield-street, at the instance of Randall, while he was owner of the defendant’s premises; 2nd, certain deeds of conveyance from Randall to Price, Jones and Price, of land outside that purchased from him by defendant. Such evidence was excluded ; the first, because the minutes of the corporate authorities were alone competent evidence — the second, because the deeds related to parcels of land other than defendant’s, and were res inter alios acta. The grounds of appeal impute error in the exclusion of such evidence. We are of opinion, that upon the question of dedication, any act of Randall, before his conveyance to Lythgoe, and while he was proprietor of lands bounding on the streets that are claimed, were competent, even though the conveyances related to other parcels than that purchased by defendant. Suppose, for example, that Randall conveyed several parcels bounding at different points on the line of Y ork-street, recognized that street at each point, and the defendant’s parcel intervenes, that would be evidence fit for a jury as to his intention to dedicate, and an act of dedication of a street, a continuous way, an entirety — and it might be made, perhaps, the more cogent, if such declarations or acts, as the case may be, could be connected with a plat, delineating an entire line of street passing over all Randall’s tract of land. Evidence of the like character might be derived from the act of Randall in procuring a public well in another street, known only from its delineation on the same plat, but in circumstances the same as those in question and now claimed. Wherever intention, or the interpretation of the scope and effect of an act otherwise equivocal, is the question, such evidence may be quite pe rtinent. We conclude, therefore, that both descriptions of the evidence excluded should have been admitted. It is quite true, grave matters may remain, and it may be necessary to consider whether a highway of any kincf, much less a street in a town or city, can depend upon private interest and purpose, rather than upon the public convenience, discretion, or necessity: to consider, that in the case of both town and country a liability to repair may be a burden not to be imposed by the mere will of a person, expressed in the act of dedication; that in the case of a town, if a street be thus thrown upon a corporation, not only a liability to keep in repair would arise, and so possibly entail heavy and unnecessary burthen upon the treasury or labor of the town, but a liability moreover for damage to individuals for neglect to keep open and in good repair; that, therefore, the position is necessary that there should be evidence of acceptance, in behalf of the public by competent authority, or, in other circumstances, by the public itself, indicated by use, for some period of time, long or short; and so on as to all considerations suggested in Carver’s case, or other authorities upon this subject. So, on the other hand, it may be necessary to inquire whether such acceptance, adoption or acquiescence — whatever may be necessary to be done to complete the dedication — shall be done eo instanti that the act of dedication is performed; or whether in just such a case as that of the town of Aiken, the evidence of acceptance, adoption or acquiescence shall be held to be qualified by its peculiar circumstances, touching sparseness of population, multiplicity of streets, the necessity to open them pari passu with increase of population, and to refrain from it until the demand for them shall arise, and-so-forth. These and like considerations affect the force and weight of the proof, and are not properly determinable here, and in advance. They may be met, and thus render the evidence excluded available, or they may not, and thus it may become useless.

It is the judgment of the Court that a new trial be ordered.

O’Neall, Wardlaw and Glover JJ., concurred.

Munro, J., dissented.

Motion granted.  