
    
      The State vs. John Caldwell.
    
    1. When a road is laid out along a pre-existing fence, the width must be measured from the outer extremities of the fence, and no obstruction on the opposite side should be placed within the prescribed distance of these extremities,
    2. Where a road exists before a fence on either side, no fence or other obstruction can lawfully be placed nearer the centre of the road than half the prescribed width.
    3. When the beaten track is permanent and clearly defined, then the measurement must be from its centre, however crooked it may be, and however fences on either side may be arranged; but presumptions are in favor of a straight line, from one ascertained point to another, and in favor of any fence or barrier put near to a road, being considered its boundary, although the beaten track may not exactly conform to it.
    4. Where a road required to be thirty feet wide, is a boundary line between two parcels of land, the occupant of neither can lawfully place any obstructions within fifteen feet of the centre, which is to be ascertained by the rules and presumptions above laid down ; and against such encroachment, it is of no avail to say, that there is still left an open space of thirty feet between the fence put, and the neighbor’s fence, any more than if the neighbor had no fence, it would do to enclose the whole road, and say there is room left outside.
    
      Before Wardlaw, J. at Newberry, Spring Term,, 1843.
    This was an indictment against defendant, fora nuisance, in obstructing the public highway. The highway in question is the road from Newberry to Lorick’s ferry, being a continuation towards the south of one of the principal streets of Newberry village, and one of the roads which, by the Act of 1825, are required to be made and kept thirty feet wide. Adjoining the boundary street of the village, as it was originally laid out, are two large lots or parcels of land, between which the road runs ; one wTas owned and occupied by the defendant, the other by Nathan A. Hunter, both many years ago held by the same proprietor, who sold off the latter mentioned one, making the road the boundary. The fences of both the present occupants, it was alleged, had been moved out so as to encroach upon the lawful width of the road. The defendant was convicted, and then Nathan A. Hunter pleaded guilty.
    
      The testimony, so far as material to the understanding of this case was, that between 1832 and ’36, Hunter erected a straight fence inside of an old worm fence which had previously enclosed his lot, and which had been erected about 1820, the opening between the two enclosures being then left every where more than thirty feet in width. So long, also, as the old worm fence stood, the opening between the two enclosures was, at every point, at least thirty feet wide, and in many places forty or fifty. In 1836, the defendant, who, according to the testimony, had, before that period, moved out his fence, when repairs were made, moved ouf his gate a foot or more, his line of planking beyond his gate about four feet, and after the termination of his line of planking, a worm fence about the width of the worm, but as to the distances, the witnesses differed. N. A. Hunter, in 1842, to retaliate the encroachments made upon him, as he supposed, by the defendant, changed the position of his fence so as to take in a long slip of ground widest near his gate. The width of this slip, two witnesses speaking exactly, said was nine feet at the widest point; others spoke of it loosely as from eight to ten feet wide. The result was, that by these seveial encroachments, the road between the boundary street and the gates was left of a width gradually contracting from forty-three to thirty^ two feet, beyond them from twenty-six feet, five inches, to twenty-one feet, five inches, at the narrowest point, and then gradually widening till it attains thirty feet.
    The facts were all submitted'to the jury. The presiding Judge directed them that when a road was laid out along a pre-existing fence, the width should be measured from the outer extremities of the fence, and no obstruction on the opposite side should be placed within the prescribed distance of these extremities; that when the road existed be~fore a fence on either side, no fence or other obstruction could lawfully be placed nearer the centre of the road than half the prescribed width; that if the beaten track was permanent and clearly defined, then the measurement must be had from its centre, however crooked it might be, and however fences on either side might be arranged ; but that presumptions were in favor of a straight line from one ascertained point to another, and in favor of any fence or barrier put near to a road, being considered its boundary, although the beaten track might not exactly conform to it; that when a road required to be thirty teet wide was a boundary line between two parcels of land, the occupant of neither could lawfully place any obstruction within fifteen feet of the centre, which was to be ascertained by the rules and presumptions above laid down ; and against such encroachments it was of no avail to say, that there was still left an open space of thirty feet between the fence put and the neighbor’s fence, any more than, if the neighbor had no fence, it would do to enclose the whole road, and say there was room left outside; that if Hunter’s old worm fence covered even two feet of the nine feet which he had lately enclosed, then the road, which, at the narrowest point, is now only twenty-one feet, six inches, would, if the worm fence stood as formerly, be only twenty-eight feet, six inches; and so, if, as all said, the road had been thirty feet wide, it must have been encroached upon by the defendant, at least one foot, six inches, at that point; and an encroachment of even six inches would make him guilty of a nuisance; that the lapse of time had not been sufficient to protect the defendant, and that the jury were to decide only whether any nuisance had been created, without defining its extent.
    • The defendant appealed, and moved the Appeal Court for a new trial, on the following grounds
    1st. Because his honor charged the jury, that if the defendant had moved his fence even six inches, it was a nuisance, even though it was clearly proved that the road was thirty feet wide, provided his fence was nearer the centre of the road than fifteen feet.
    2d. Because it was clearly proved by all the witnesses examined, that the road was thirty feet wide when the defendant’s fence was erected some years since, and remained so until encroached on by Nathan A. Hunter, who has pleaded guilty to an indictment for a nuisan&e for obstructing the same road, at the same place, at the same point.
    3d. Because his Honor charged the jury, that when a road, forty feet wide, is the dividing line between two individuals, it would be a nuisance for either to enclose ten feet, though the road should remain thirty feet wide.
    4th. Because the defendant proved an uninterrupted possession for upwards of twenty years, and his Honor should have charged that the defendant was protected by length of possession or prescriptive right.
    5th. Because it was proved that the defendant’s present enclosure is not within fifteen feet of the centre of the road as it stood in the year 1325, at the passage of the Act of 1825, and his Honor should have charged that defendant was not guilty on that ground.
    6th. Because the verdict was contrary to law and evidence.
    
      Irby & Summer, for the motion.
    
      Caldwell, Solicitor, contra.
   Curia, per

Wardlaw, J.

This court is satisfied with the instructions given to the jury, and with their finding.

The motion is dismissed.

Richardson, O’Neall, Evans and Butler, JJ. concurred.  