
    William Seabrook v. James King.
    A right of way must he by grant or prescription, and convenience gives no right.
    This was an action of trespass, brought by the plaintiff, the owner of a tract of land on Sian’s Island, against the defendant.
    It appeared, that a pathway had been opened from the plantation of the plaintiff to a creek dividing Blau’s and Burden’s Islands. Defendant finding this path convenient to him, (he having a plantation on Sian’s Island, and residing himself on Burden’s Island,) made use of it. The plaintiff, from existing circumstances, interdicted the use of this way to the defendant, which not being regarded by him, and interposing the claim of a right of way there, the present action was brought for a trespass on the land of the plaintiff.
    The case was tried before Mr. Justice Johnson, and a great mass of testimony was gone into, in relation to this pathway ; the length of time it had existed ; the uses for which it was originally designed ; the convenience which ^ honied the defendant in getting to *his plantation ; the circuity of route which an interdiction of its use would occasion to the defendant, &c. It was not pretended, that this road had been established by an order of the board of commissioners of roads. The opinion of the presiding Judge was, that the defendant had not established a right of way by prescription ; nor had he so used it as that a grant of the right could be presumed. That it appeared to have been intended for, and originally used as a market landing for the plaintiff’s plantation ; but that the jury had a right to draw a different conclusion if they thought proper, and might presume a grant of the use of this road. And after a variety of pertinent and judicious observations made to the jury, concluded by saying to them, that if the defendant, under the circumstances of the case, would suffer greater inconvenience and injury without the use of this road, than the plaintiff did by permitting him to enjoy it, they would be authorized to find for the defendant. The jury did so accordingly.
   The opinion of the Court was delivered by

Gantt, J.

This case was brought up on a motion for a new trial, on the ground of misdirection, and I am of opinion that it should be allowed. The jury had certainly no discretion to give to the defendant this right of way, on the ground of convenience. The plaintiff’s right of sole enjoyment is steadfast and firm, unless the road had been established by law, or claimed by prescription. And as the jury were probably influenced in finding their verdict by that part of the charge which related to the convenience of the parties, I am of opinion, that a new trial should be allowed.

Bichardson, Attorney General, for the motion. Hayne, contra.

Colcock, Nott and Cheves, JJ., concurred.

See 2 McC. 445.  