
    The State vs. Benjamin J. Jefcoat.
    
      Nuisance — Gates across Highways — Private Path — Ways.
    A neighborhood road, or private path, as it is called, is within the provisions of the Act of 1855, (12 Stat. 408,) authorizing the erection of gates upon all such roads as are not public highways.
    One cannot have a private right of way over and aloDg a public road.
    BEFORE WHITNER, J., AT LEXINGTON, FALL TERM, 1858.
    Tbe report of bis Honor, tbe presiding Judge, is as follows:
    “ Tbe defendant was indicted for wilfully leaving open a gate, under tbe 2d Section of ‘An Act to authorize tbe erection of gates upon all sucb roads as are not public highways,’ passed in 1855. See Act of Assembly, 1855, p. 408.
    “ The road in question was common to tbe neighborhood, sucb as are denominated private paths, and led from one highway to another. Across this road William Knotts had erected two gates, and had enclosed about two hundred and fifty acres, of which eighty or ninety acres were in cultivation. The overseer of the prosecutor, Knotts, testified that these gates were on the lands of the prosecutor; and, on his cross-examination, described the lines. The road led by the house of Joshua A Jefcoat, and the gate was near his residence. The defendant, a young man about twenty years of age, was his son, and lived in his family. The prosecutor had been so frequently annoyed by the gate being left open, that the overseer watched and thus detected the defendant.
    “ As matter of defence a record of proceedings in Equity was adduced — Lewis Pobinson and wife vs. Urban Jefcoat and others — for partition of lands of old Mr. Benjamin Jefcoat. The tract H, as shown by a plat returned by the Commissioners, was assigned to Joshua A. Jefcoat and wife; and tract B, on which the gate was erected, now belonged to prosecutor, as explained by Wiley J. Jefcoat.
    
      u There was a mill near by, though not immediately on the road, which belonged to Joshua A. Jefcoat and Wiley J. Jefcoat, each one-fourth and remaining half owned by prosecutor. A right of way was secured by these proceedings in Equity to Joshua A. Jefcoat, from his house to this mill, and the way indicated was along the road in question, from the house about two hundred and thirty yards, and then turning to the right to the mill, the gate being about two hundred yards below the house, and thirty yards or thereabouts above the fork.
    “ The defendant was convicted on the instructions of the presiding Judge, on the legal points raised, and which are sufficiently indicated in the grounds of appeal annexed.”
    The defendant appealed and moved this Court for a new trial on the grounds :
    1. Because the State failed to offer any competent evidence that Wm. Knotts, the prosecutor, was the legal owner of the land on which the gate was erected.
    2. Because the Act of Assembly of 1855, authorizing the erection of gates on certain roads, is inapplicable to the defendant’s right of way, from his dwelling to his mill, and does not authorize the erection of a gate across it.
    3. Because the Act of 1855, so far as by its terms, it embraces and authorizes the erection of gates across the defendant’s private right of way from his dwelling to his mill through the prosecutor’s land, is unconstitutional.
    
      Meetze, BausJcett, for appellant.
    The Act of 1855 does not give a right to erect gates across private ways; if it does, it is unconstitutional. This was a private way by express grant under the proceeding for partition. They cited Pearce vs. McOlenaghan, 6 Eich. 186; Sims vs .Davis, Chev. 1; Hogg vs. Gill, 1 McM, 329 ; Hash vs. Peden, 1 Sp. 17; State vs. Sarter, 2 Strob. 60 ; 1 Mc-M. 178 ; 3 McO. 170.
    
      Fair, Solicitor, contra.
   The opinion of the Court was delivered by

Munro, J.

That a neighborhood road, or private path as ways of this sort are strangly denominated in our early legislation, is within the provisions of the Act of 1855 cannot be doubted: for, in the case of the State vs. Pettis, (7-Eich. 390,) which was decided the previous year (1854), it was held, that the owner of the land burdened with a similar easement, might acquire a prescriptive right to erect a gate across the road, provided it could be opened and shut at pleasure — so that the object of the Legislature in passing the Act in question, was manifestly to confer upon the owner of the land a similar right, by direct grant. The defence relied on however, is, that in the partition of an estate in which the defendant’s father had an interest, and prior to the erection of the gate in question, the Commissioners appointed to make partition thereof, had allotted to the latter, a private right of way over this very road; consequently the erection of the gate by the prosecutor Knotts, was in derogation of such right, and unauthorized by the Act of 1855.

How a private right of way, a right which one individual has to pass over the land of another, can exist in that which is common to the whole 'community, is a proposition not easily comprehended: for the above cited case of the State vs. .Pettis, to say nothing of others, is sufficient to show, that the public at large, have as much right to the use of a private path as they have to the pse of any of the public highways under the eontrol of the Commissioners of Roads.

That the road which leads from the defendant’s father’s mill, to where it intersects the road in question, is a private way, may readily be conceded: but it is only at the point of intersection with the road in question, that its character as a private way commences; and the attempt of the Commissioners to allot to him a private right of way, over the highway in question, could no more affect the character of the latter, than if they*had attempted to allot to him a private right of way over any of the public highways of the country.

The motion is therefore dismissed.

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

Motion dismissed.  