
    Wm. H. Heyward vs. Robert Chisolm.
    
      Highway — Pleading—Plea—Justification—Adverse use — Fence.
    In trespass guare clausum fregit, under a plea of justification by reason of an alleged “ public highway ” over which defendant passed, and from which he removed obstructions, any public way, whether by land or water, and by whatever name called, may be shown.
    Adverse use by the public, for more than twenty years, with small boats and occasionally with flats and rafts, of a ditch through a marsh -. — Held, to establish the ditch as a highway.
    Land bounded on three sides by deep water and protected on the fourth, from the intrusion of cattle, by a fence or bank, is enclosed land.
    BEFORE MUNRO, J., AT BEAUFORT, SPRING TERM, 1857.
    Trespass quare clausum fregit for removing obstructions placed by the plaintiff across a- cut or ditch. The defendant pleaded that the cut or ditch was a “public highway or water course,” &c., for the use of all the citizens of the State through which they had the right at all times “ to go, return, pass and repass, with their boats, flats, rafts ” &c.; that the said obstructions were wrongfully placed across the said “highway or water-couse” and that the defendant having the right removed the same.
    The evidence was as follows:
    Por the Plaintiff.
    
      John P. Meto. — Has lived on plaintiff’s place ever since 1841 in the capacity of manager; it was formerly owned by Nathaniel Heyward, plaintiff’s grandfather: the place contains a large body of lands, with settlements at different points; tbe only fences are the Combahee and Bull rivers. There is a large body of marsh between the cut and plaintiff’s residence; and it is through this marsh that the cut extends. Plaintiff’s rice lands are about three miles from the cut; his residence is four or five miles from it. Persons passing through the cut in boats and rafts cannot be seen from plaintiff’s residence. Witness obstructed tbe cut by plaintiff’s orders. The water in Bull river is salt; that in Combahee is generally fresh. The ebb tide passes from Bull river into Combahee through this cut. If Bull river was to break into Combahee, the rice culture would be ■ severely affected by salts. It would be dangerous to open the cut wider. It would require a very high tide to pass through the cut in a boat. There is another cut lower down the river which comes into Combahee two or three miles nearer to the mouth of Chehaw river, and would suit the defendant as well as the cut in question.
    
      Cross-examined. — Witness was ordered by old Mr. Nathaniel Heyward to stop all ditches running into Combahee. Witness’ attention was. first directed to the cut four or five years ago; but at that time flats could pass through at very high water. In 1853 or ’54 witness obstructed the cut by plaintiff’s order. The suit followed the removal of obstruction.
    The tides from both rivers flow over the marsh. The marsh at the cut is not covered by ordinary tides; it requires a spring tide to cover it at that point; the cut is more shallow than before obstructions placed in it.
    
      William AT. Mellard, Surveyor. — Witness accompanied Mr. Campbell and located the cut; was at the cut at high water; its depth about fifteen inches, and average width four feet six inches. Does not think an ordinary sized boat could go through it; a small canoe was then aground in it.
    
      For the DefeNoe.
    
      Owen Bunting, examined by commission, dead before tbe bearing:—
    Is eighty years of age; born in North Carolina. After the war his father moved to South Carolina. Has been in Colleton district about seventy years; has passed about Tar Bluff and old Capt. Chisolm’s and Capt. Catterfield’s; and lived just above Tar Bluff, -at Alexander Chisolm’s in 1788; used to pass up and down between Combahee place, belonging to Col. Skirving, (now belonging to Andrew Burnett,) and down to Field’s Point.
    Knows of a cut from the marsh on the opposite side from Tar Bluff into a little river or creek leading up round the island, called Pine island, or Combahee island, (as some called that creek;) and that creek fell into True Blue or Broad river. The small creek he speaks of was what some people called a “gut;” it run up in the marsh and stopped.
    First knew it in 1788; it was a small little bit of a ditch then; you could just run a paddling boat.
    It was enlarged that same year (in a part,) by Catterfield and an old lady named Mrs. Smith, and a few hands from Mr. Minot’s, and two from Arthur Hughes; and in 1789 these same hands cut it out fully so as to pass a four-oared boat. About the finishing it, stopped one end until the ditch got full, so as to force out the loose mud by the hoes stirring it. Witness was living with old Mr. Alexander Chisolm. Mr. Chisolm’s hands did not work on it. He did not use it. Witness went at the request of. the neighbors, just to be with them; he assisted them; there were other white nien superintending the hands. Witness went at the particular request of Major Field; a negro got drowned and they quit. The neighbors used the cut. It was their path to the fishing ground and to get oysters. Mr. Minot’s, Mr. Field’s and Mr. Hughes’ overseers, and Mrs. Smith’s son, and Graves used to go over often, fishing and pleasuring. Only knew tbe cut two years after. Left in 1791 and bad not crossed it since. Does not know wbo owned tbe land tbrougb wbicb tbe cut run. Tbe cut was, be thinks, over a quarter, and perhaps a balf mile long. Tbe cut was made by tbe neighbors for their use in fishing and getting oysters; and so they used it while witness remained. Witness’ employer did not care for such things, and be would not join in tbe work. But tbe other neighbors used it for pleasure parties and fish dinners.
    
      Mrs. Mary M. Fripp — also examined by commission:
    Knows tbe defendant; she (witness) is sixty years of age; — ■ knows Combahee island cut. Has known it many years; as far back as 1812, when she was seventeen or eighteen years of age: tbe cut at that time was bolder and wider than at present, but cannot say what tbe width and depth then was or what it is now, never having measured it, only judges from comparison. It connects the waters of Combahee and Bull rivers, and its direction is from east to west across the marsh in the neighborhood of Combahee island. Does not know wbo dug it or for what purpose it was dug.
    It was used and is still used by all this neighborhood; sometimes by the citizens of Saltketcher swamp, as she has seen flat loads of shingles going through into Bull river from this river. Every body in this neighborhood uses it; to name one is to name all. The cut has been used by the neighbors ever since witness can remember. Does not know who owned or owns the marsh. Never knew the cut obstructed until within a few years, say two years ago. It has been used by the public for more than thirty-five or forty years without interruption.
    
      Cross-examined. — Witness answers from her own knowledge, not from hearsay. The cut is through open and unplanted marsh. It was not nor is it now passable at all times, as it goes dry at half tides. Don’t know why it was made, but it is used for fishing and other pleasure parties, and every other purpose, by those who go over in the direction of Beaufort district. Never knew the cut shut up but once, when she heard it was done by Mr. Heyward. Cannot say how long it ■remained so. Witness has used the cut so often, it is impossible to say how often that has been. Cannot say she has seen it open every year for the last twenty years, because she has not permanently resided here for that length of time; whenever she came on a visit here before 1842, (when she settled here,) the cut was always open — which has been, since 1812.
    
      Charles Minot. — The place marked on Mill’s map, “ Minot’s,” was his father’s residence, where witness spent the early part of his life; it is near to Tar Bluff. The cut is half a mile obliquely from the Bluff and is called Combahee island cut; it was used nearly forty years ago; people were in the habit of passing through it in boats. It has filled up considerably since. It was used by Saltketcher people in floating shingles through it in order to cut off fifteen miles of dangerous navigation round “Hangman’s Point.” Thirty years ago witness passed through it in a boat. Six or eight years ago defendant cleaned it out. It was used by people in the neighborhood until within about five years ago.
    The Combahee river runs into Bull — the latter is larger, deeper and nearer to the ocean than the former; spring tides overflow the marsh; the cut empties itself for a while into Combahee, then it flows into Bull river. The cut was cleaned out by defendant, Mrs. Eripp, and witness.
    
      Cross-examined. — Plaintiff’s residence is, he thinks, four or five miles from the cut, and persons might pass through the cut without being seen from it. years, and during that time has frequently passed through it with a flat. It is a much longer and more dangerous route to go down Combahee than to pass through the cut into Bull river. Onee met with an accident going the former route; the cut is called Chisolm’s, or Minot’s; used it until it was stopped up.
    
      
      James H. Mallon. — Has known the cut for the last seven
    
      
      Joseph Heape. — The cut is below Tar Bluff; has heard it called Field’s cut; first heard of it twenty-five years ago, and of persons passing through it to Beaufort. In 1850 it could only be used when the tide was high; knew of a flat fourteen feet wide and fifty feet long having passed through it for safety; it is a great accomodation to persons in that neighborhood.
    
      Joseph V. Morrison. — Witness when a boy lived about two miles from Tar Bluff, and once passed through the cut in a boat with Mr. Minot. Witness left that section of the country twenty-three years ago; has no knowledge of the use of the cut by others.
    The report of his Honor the presiding Judge, is as follows:
    This was an action guare clausum fregit for removing an obstruction placed by the plaintiff" in a cut or ditch connecting Combahee river with a creek making up from Bull river. The plaintiff proved possession, and the trespass was admitted.
    The plaintiff owned a very large body of land with settlements at several points, and had no other fence than the two rivers. The locality of the cut was some four or five miles from plaintiff’s residence and through uncultivated marsh.
    The defendant pleaded in justification, that the cut was a public “highway or water course.”
    The testimony, (hereunto annexed,) showed that the ditch had been cut or widened in 1788, by some neighbors for the facility of going to fish and get oysters in Bull river. No other act nor any use was proved for more tban twenty years after this. From 1812, the witnesses proved its frequent use for boats, and occassionally flats, and in very bigb tides even rafts; and one of them, (Mr. Minot,) spoke of its having been cleaned out once, perhaps twice.
    But no act indicating a continuous claim of right, or calculated to draw the attention of the owner of the land, was proved, until the defendant removed the obstruction, which led to the bringing of this action.
    I did not charge the jury on the point made by plaintiff’s counsel in the argument, and by his grounds of appeal, namely, “whether the jury could consider any evidence as sustaining the plea, unless it showed one of the two species of highways known to thé law, — a road under the charge of the commissioners, or a navigable stream.”
    In reference to the last mentioned class of highways, I confess that I could not well comprehend how a mere ditch, cut in 1788 for a special purpose and for the accommodation of a few, and when visited by the surveyors in this case, its utmost depth at high water did not exceed eighteen inches,'and its average width about four feet six inches, could be ranked as a navigable stream. I did remark to the jury, however, that in order to establish a prescriptive right of way, whether public or private, over the land of another, the use must not only be continuous during the prescribed legal period, but it must also be shown to have been adverse; that is, if the way be through enclosed land the presumption is that it is adverse; but if it be over unenclosed woodland, the mere use of the way, however long, will not confer a right; in the language of the cases on this subject, “ the use must be of a character to operate as notice to the owner, that a right was claimed over his land.”
    There was certainly no evidence in this case, that indicated any such use as implied an adverse claim, or that was calculated to draw the owner’s attention by interfering in the slightest degree with his enjoyment of his land.
    I doubted then and still doubt if the plaintiff could at any time have brought an action for the passing of boats through the cut, or for any act done up to the time defendant removed the obstruction.
    After concluding my charge, defendant’s counsel made the point, “ that as plaintiff’s land was surrounded on three sides by navigable streams, it was enclosed, and therefore the use of the cut for twenty years gave a right,” and desired me to charge on it.
    I told them that twenty years’ use alone would imply adverse claim and confer a right; but that I did not regard a water enclosure such a one as the law contemplated in the rule.
    The jury came back into Court twice, to ask, “if the law was positive that twenty years’ naked use over enclosed land gave a right?”
    I replied, yes! I was then engaged in another case and did not repeat my views as to the effect of a water fence.
    I am satisfied they did not comprehend my exposition of the rule, and that the finding was predicated on the belief that under my ruling they were bound to consider it “a way over enclosed land, and therefore to be acquired by twenty years’ naked use.”
    I certainly would have instructed them more fully on this point, had it occurred to me that I had been misunderstood; for to apply the rule to enclosures of this kind, would be to substitute a mere formula of words in lieu of the reason.
    The cases which lay down the rule proceed on the just view, that passing over fenced land necessarily indicates itself to the owner, and is at each passing a trespass. But where the fence is a river the use has no such effect; — -boats leave no track, take down no rails, do not injure the soil. The mere rowing through would not constitute a trespass. But tbe jury, under, as I think, a manifest misapprehension on this point, found for the defendant, contrary to my view of the law as applied to the admitted or undisputed facts.
    The plaintiff appealed and now moved this Court for a new trial on the grounds:
    1. Because the defendant having pleaded in justification a “highway,” the jury should have been charged that no “highway,” could be established from the testimony — and that a public way other than a “ highway,” though proved, could not sustain the plea.
    2. Because the jury by twice coming in to ask if naked use for twenty years oyer enclosed land, would imply notice, showed that they thought the rivers an enclosure sufficient for that purpose, and had not comprehended his Honor’s exposition of the rule. And plaintiff contends than an enclosure of rivers is not contemplated by the reason of the rule.
    3. Because upon the facts admitted or proved, the verdict was contrary to law.
    
      Hutson, for appellant.
    Matter of justification cannot be given in evidence under the general issue, in trespass quare clausum fregit, when the plaintiff’s title is not disputed. Riley v. Denny, 2 Rich. 540. Defendant must therefore rely on his special plea and the evidence must be confined to the issue made, 1 Sand. PI. & Ev. 1092. Under a plea of public highway no other way than a road in charge of commissioners or a navigable stream can be proved. Evans Dig. § 4; Wol. on W. 3; Gotes vs. Waddrington, 1 McO. 580. Then as to the merits. It is necessary that circumstances implying tbe owner’s knowledge of tbe use of a way over bis land should be proved in order to raise tbe presumption of a grant or dedication from sucb use. Hutto vs. Tindall, 6 Eich. 396; Gales & W. 87, 109. Where tbe way is over enclosed land tbe mere use is enough for the owner necessarily has notice. Hogg vs. Gill, 1 McM. 329; Jeter vs. Mann, 2 Hill, 643, and note. But an enclosure by navigable rivers on three sides o^ uncultivated marsh, lying five miles from tbe owner’s settlement, can have no sucb effect. Gales & W. 109. Tbe neglect of a party to obstruct or bring trespass for tbe use of an easement will not imply assent, when sucb use did him no barm, deprived him of no right, subjected him to no inconvenience, and gave him no notice. Napier vs. JBulwinlcle, 5 Eicb. 312; Rowland vs. Wolfe, 1 Bail. 56; Smith vs. Kinard, 2 Hill. 645, and note; Hutto vs. Tindall, 6 Eicb. 396. A way over water does none of these. Trespass would not lie for passing over water without doing injury. Norval vs. Thomson, 2 Hill, 470; McGonico vs. Singleton, 2 McO. 244; 1 Esp. Dig. 261; Fripp vs. Hasel, 1 Strob. 127.
    
      Youmans, contra,
    cited Act 1853,12 Stat. 305; 6 Mod. 255; 8 East, 4; Eep. Temp. Hard. 513; Yelv. 163; 11 East, 375; 1 McM. 43; 5 Eicb. 181; 7 Eicb. 392; 1 Eicb. 59; 4 McO. 47; 5 Strob. '218.
   Tbe opinion of tbe Court was delivered by

Wakdlaw, J.

Tbe defendant’s plea, and tbe plaintiff’s objections now made to it, having been considered, it appears that tbe material thing in tbe plea and tbe issue joined thereon, is tbe public right in the way described. Judge Evans in bis Digest of tbe Eoad Law, page 7, thinks that our Acts of Assembly relating to roads seem to make a three-fold division of them into highways, private paths, and private ways. But this attempt to systematize confused legislation cannot change the meaning of words that have acquired a settled technical signification. Highway is nomen generalissimum, which embraces every kind of public way, common to all citizens, whether a footway, a horseway or a cartway, or a way by water; whether under the charge of Commissioners or not, and whether originally laid out for the whole public, or laid out for particular persons and used by the public. (Jacobs’ Law Diet. Highway; 6 Mod. 255.) Indictments for obstruction, of our neighborhood roads (strangely called private paths) call them, highways. State vs. Sarter.

If the designation of the way alleged in this plea was too vague, the plaintiff should have demurred specially. (8 East, 5.) He cannot now object to the proof of one kind of highway, because in misconception he had expected an attempt to prove a different kind. There could not have been any misconception as to the allegation of a public right, nor as to the nature of this right, nor as to the subject in which it was claimed; the name by which this subject should be called is comparatively unimportant; indeed in the plea the reason is alternative and various.

The jury have found that the use of the way was adverse, and this under instructions which properly distinguished, according to our cases, between the use of a way through enclosed land, and like use through unenclosed forest. A small water passage, natural or artificial, which existed before, was in 1789, with much labor, widened and deepened by the neighbors for their own use in fishing and getting oysters. The probability is from the evidence, that it was used ever afterwards by all who desired to use it whenever they pleased, until it was lately obstructed by the plaintiff The certainty (if Mrs. Bripp’s testimony be correct) is -that it was used ever after 1812, for every purpose, by all who went from her neighborhood toward Beaufort District, and sometimes by people coming from the Saltketcber swamp with shingles and the like. The tide flows through it, it cuts off fifteen miles of dangerous navigation, and has been cleared out by the defendant. These circumstances liken it rather to a road made by felling timber and digging earth, than to a path through a forest, trodden into distinctness. The jury may well have found something more than the mere use itself, to indicate its adverse character: and may have properly inferred that the proprietor of the soil could not have been ignorant of the public use so long continued, and that his submission ‘to it (more especially if his rice land was likely to suffer from salt water passing this way into Combahee river) was an acknowledgment that it was rightful.

We cannot know that the jury labored under the misapprehension which has been imputed to them. We rather conclude that they conformed to the instructions which were given to them, and under these instructions found the facts for the defendant.

The land having been bounded by deep water on only three of four sides, was not enclosed if there was no fence on the fourth side. But if by rail fence or bank, a sufficient barrier against the intrusion of animals was established on the only side where it was needed, the land was enclosed; unauthorized hunting or travelling over it would have been a trespass, (Hasel vs. Fripp, 1 Strob. 126) and the reason, upon which a presumption against the adverse character of the use of a road over unenclosed woodland is founded, did not apply to it.

The Court does not perceive cause sufficient to justify a disturbance of the verdict.

The' motion is dismissed.

Withers, WhitNer and Glover, JJ., concurred.

MuNeo, J.,

dissenting. Apart from tbe utter insufficiency of tbe proof to establish a prescriptive right to tbe use of tbe cut in question as a public way, there is another ground which renders the verdict of the jury wholly indefensible. The ground is this: because from the locality of the' cut, and the fugitive character of the acts claimed to establish the right, there was nothing to attract the proprietor’s attention to it, or to apprise him that a right of way was claimed through his land.

In Hutto vs. Tindall, 4 Rich. 403, it is said “ The presumption of a grant of way should be sustained by rules of evidence which may prevent its insidious operation. Too often a use commenced in courtesy, after the prescribed time is claimed adversely, and judicially established as a right. It is only a reasonable security to the land owner that he should be apprised of the adverse claim of a way over his land before the use has matured into a right, whether the way claimed is a neighborhood road or a private way. No reason can be assigned why in this respect any distinction should be made.”

Apply this doctrine to the case in hand.

From the year 1788, when this ditch was first opened, to 1855, when it was obstructed by the plaintiff, there was not a tittle of proof that either the plaintiff or his ancestor were even aware of its existence, much less that it had been used by the neighborhood, and claimed as a public way.

Had the ditch been cut through a portion of his cultivated land, or even through-' any portion of his uncultivated high land, where it could not well have escaped his observation; his knowledge of its existence and acquiescence in its use might fairly have been presumed. But situated as it is, in a wild region of uncultivated marsh, remote from his residence, and withal so insignificant in its dimensions as not to attract observation, there was a total absence of anything upon which to base a presumption, either that be knew of its existence or bad acquiesced in its use.

Under circumstances like these, to permit the verdict of a jury to stand, which appropriates to the public use the property of the'citizen, is at once to. abandon the rights and the property of the honest land owner as a prey to the lawless rapacity of squatter sovereignty.

Motion dismissed.  