
    The Commissioners of the Streets of Georgetown against Archibald Taylor.
    
      Charleston,
    
    
      May, 1800.
    To constitute a public street or highway, it is necessary that it should he laid off and used as such ; for it is the use which makes it a highway.
    
      JN'omiser, however, for a great number of years will forfeit a right to a highway.
    The proper remedy for obstructing a street or highly ay is by in-diclmenl, and not by action to try title, •which is a remedy to recover a private right.
    Where the commissioners of streets or highways bring a private action for obstructing a highway, it is a good ground for demurrer, or in arrest of judgment.
    • MOTION for new trial.
    This was an actiop to try title to certain portions of land within the defendant’s enclosure near Georgetown, claimed by the commissioners as part of the public streets belong-, ing to the town; tried before Bay, J. in Georgetown, April, 1800.
    The commissioners, in support of this right, produced a deed dated in 1734, from a Mr. Screven to certain trustees therein named, for the greatest part of the lands on which Georgetown is now situated and established; to be laid out in lots for the then and future inhabitants of said town. Afterwards, Mr. Gleetand, an old inhabitant in the vicinity of the town claimed this land, which Mr. Screven had so conveyed to trustees in right of his wife; but soon after compromised the matter with Mr. Screven and the lot owners, and confirmed all the titles from' Mr. Screven to the proprietors of the lots, in and by a deed dated in 1737; and also conveyed all the rest of the town to trustees, in the manner and for the uses and purposes which Mr. Screven had done before him. Soon after this, Mr. Cleelandhaving Other lands adjoining the town, laid out additional squares, and added them to Georgetown, which were to be considered as part of the said town j annexed to this deed laying off these new squares, was a plat on which were deli-, neated these new squares with streets running through them in various directions, l'qr the convenience of those whp might purchase the lots to be sold out in the different squares. But by a particular clause or proviso in this deed, declaring these squares to be a part of Georgetown, Mr. Cleeland reserved to himself the right or privilege of selling or di posing of these squares in such manner as he might think proper, exempt from all provisoes and conditions whatever.
    
    It was upon this deed, and the plat annexed to it, that the commissioners founded their claim to the streets, in that, part of the town laid off by Mr. Cleeland. They admitted, that Mr. Cleeland had a right to dispose of the squares in any manner he pleased, agreeably to the proviso or condition in his deed ; but denied his right to resume the streets which had been delineated on the plat annexed to it, as they were not mentioned in the proviso 5 and insisted upon it, that as he had once parted with his right in them for the use of the inhabitants, or for public purposes, he never could again resume them, or dispose of, or appropriate them to private purposes.
    On the part of the defendant, it was urged, that the proviso or condition in this deed from Mr. Cleeland,, expressly gave him a right of disposing of the squares as he pleased, whenever he thought proper; and as the streets laid down in this plat, were only intended for the use of those who should purchase the lots on the squares, and for no other purpose whatever, it was contended, that they were mere appendages or appurtenances belonging to the squares, and Went with them whenever he thought proper, in the same manner as the squares themselves; and the more especially, as no lots had ever been laid off or sold out of any of these squares, and as a necessary consequence, there were no persons who had a right to claim the use of these streets. That Mr. Cleeland accordingly viewing the thing in this light, and believing himself perfectly secure under the proviso in this deed, and that he was'well warranted in so doing, did by deeds of conveyance some time in the year 1753, sell and convey to Mary La Roach, in consideration, of 817/. currency, two of the squares mentioned in his former deed, without taking any notice of the streets, which were included in the deed with the squares.
    The will of Mary La Roach was then produced, in which she devises her estate to her two daughters, Mrs. Taylor and another. Upon the division of her estate by commissioners appointed by the court of common pleas, under the act of assembly for that purpose, the squares in question fell to the share of Mrs. Taylor, wife of the defendant.
    Several old witnesses were called, and sundry depositions were read, and they all proved that Mrs. La Roach had enclosed these squares, and that this enclosure had been used by her, and those claiming under her, as a farm and a pasture for more than forty years-last past; and that after Mrs. La Roach's death, and the partition above mentioned, Mr. Taylor the defendant, entered into the premises in the year 1787, and has been in possession ever since. The substance of the testimony offered was as follows :
    Mrs. Gough recollected a ditch and fence round the enclosure thirty-eight years ago, and it was then called La Roach's pasture.
    Mrs. Heriot recollected a fence round it upwards of forty years ago, and it was then called La Roach's pasture.
    
      John Cogdell proved that Mrs. La Roach paid him, as tax collector, the taxes for this enclosure before the American war.
    
      William Heriot rented it of Mrs. La Roach before the war, and held it as her tenant from 1772 till 1780 ; it had been enclosed before, and part of it was enclosed when he leased it.
    
      Samuel Smith recollected .a fence round it forty years ago ; it was a post and rail fence ; the boys used to run, through it.
    
      Samuel Wragg recollected a ditch round it in 1763, and it had evident marks of having been enclosed as private property.
    
      Ronald Taylor proved that the present fence was put up in. 1787, by the defendant, who has held and occupied it ever since.
    
      The defendant here rested his claim, having, as he conceived, proved his right to the freehold, and also a posses-sory right under'the statute of limitations.
    Mr. Gaillard and Mr. Keith, on behalf of the commissions,
    argued, that whatever right Mr. Cleeland had to the squares, he had none to the streets, which had been given away for the use of the inhabitants of Georgetown. That the statute of limitations would not run against a street or a highway. That shutting up a highway was a nuisance, and every continuance of it was a nuisance also. 5 Bac. title Nuisance, 57. and that it was the duty of the commissioners to see that they were removed, and all obstacles cleared away.
    The Attorney-General and Mr. Bothmahler. A donor may prescribe what terms and conditions he pleases ; and where it is intended as a benefit for himself or family, it shall in case of a dispute be construed most beneficially for his or their benefit. These streets and squares were undoubtedly all laid off for the benefit of Mr. Cleeland; and if he thought proper to relinquish that benefit, and appropriate that soil to other purposes, was there any thing in law or in this deed to prevent him ? Surely not, even if the deed itself had been silent on the subject. But the reservation in the deed gave him this privilege expressly, which he accordingly exercised. The)' admitted, that the statute of limitations would not run against the use of a street or highway, which had been laid off and used for the purpose of public convenience ; but, they said, although these streets were represented on paper, or on a plat annexed to Cleeland'1's own deed, yet they had never been laid out as streets, or used as such. From the year 1737 to the present day they had been included with planting and pasture grounds, and no witness ever saw or proved, that any one single inch of the space represented on that plat had ever been used as a street or highway. These streets, however, were originally intended as appendages to the lots, which were intended to have been laid out in these squares, and for the benefit of the lot owners, or persons who might purchase those lots ; but as no lots were ever laid off or sold, they reverted with the squares, for the convenience of which they were at the time of executing the deed intended: and if any doubt could arise on this head, upon the construction of this deed, it ought to be construed most beneficially for the advantage of the donor, or those claiming under him.
    Twenty years possession is sufficient to give a title in ejectment, on which plaintiff may recover, 2 £,sp. 636. and so Vice versa twenty years omission to exercise á right will forfeit it.
    
      Co. JÁU. 13. 1 Moll 816. I Mac. 510.
    Taking the commissioners after all upon their own ground, “ that these streets were intended for the general “ convenience of the inhabitants of Georgetown,” and not for the convenience and use of the purchasers of lots in those new squares, still, they contended, that the right was forfeited and gone; for it is a well known rule of law, that nonuser, as well as misuser, will forfeit a corporate right. Nonuser for twenty years will forfeit a corporate right, on the ground that the corporation hath no occasion for the exercise of such a right ; and the nonuser is the strongest proof that the corporation had no need of it, and did not think it worth their acceptance, in such case the right would revert back to the original donor, like land given to a corporation which becomes dissolved ; in which case it reverts back to the original donor : for the law annexes such a condition to every grant to a body politic.
    
    If Mr. Cleeland bad reserved a rent, or charged the donation to the corporation of Georgetown with payment of it, and had sued for the recovery of it after so long a period, non-tenure' would have been a good plea, or a nonuser, which is the same thing; which shews the reciprocity between the donors and donees, in a case of this kind.
    But in the present case, there is a nonuser for mbre than forty years proved by almost all the witnesses, and a strong presumption, that no part of these supposed streets were ever made use of from the time of Mr. Cleeland's deed in 1/37...
    Therefore, in whatever light this case is viewed, either as a right which the donor might resume when he pleased, ” by virtue of the clause in his deed, or as a gift to George-iown, which the inhabitants never accepted or made use of, it is very clear that the corporation of Georgetown at this day have no right to recover; and consequently, that a verdict should be for the defendant.
   The presiding judge,

in his charge to the jury, mentioned that it was their duty in the first place, to determine whether Mr. Cleeland, in making ¡his deed, intended to reserve the right of resuming those streets laid down in the plan, as well as the squares, whenever he should think proper, or not ; and if it should be their opinion that such was his original intention when he made the deed, (which they would have out with them,) and that those streets were only intended for the convenience of such persons as should purchase lots in these squares; or, in other words, as mere appendages to the squares, that then, and in such case, it would be their duty to find for defendant, who had proved a very clear title down from Mr. Cleeland.

But if on the contrary it should appear to them, that these streets were intended as highways, for the general use and convenience of the inhabitants of Georgetown, or others' who might have occasion to make use of them, then the next inquiry would be, whether they were ever laid out and used as highways, or not ? for it is essential to constitute a highway, that it should not only be actually laid off, but used as such ; for it is the use that consecrates it to the benefit of the public: and upon this point he was bold to say, that no proof had been given to prove either that they had been actually laid off, or ever used as highways: on the contrary, it appeared from indubitable testimony, that the whole had been enclosed and used as a farm either by Mr. Cleeland, or those who held under him, for more than forty years last past ; and here he said the doctrine of nonuser would apply, which would forfeit a corporate right, as well as misuser. Upon both grounds, therefore, he thought the defendant well entitled to a verdict,

-And the jury found for the defendant accordingly,

A motion was afterwards made for a new trial, on the ground of misdirection, which was ordered, to the end that this case should undergo a fuller and more satisfactory investigation, especially as a majority of the judges were of opinion, that the clauses in CleelancPs deed were involved in a good deal of obscurity and uncertainty.

Second Tkial.

This cause was tried at Georgetown a second time, be-Jbre Gmmke, J. in the November following, when a verdict was given for the commissioners.

After this second trial, a two-fold motion was made before the constitutional court of appeals.

1st. In arrest of judgment, on the ground that the commissioners of the streets of Georgetown could not maintain or support this action. And,

2d. That in case of failure on the first ground in arrest of judgment, then for a second new trial, as a verdict against law and evidence. Inasmuch, as the jury on this second trial found against the reservation in Cleeland'>s deed, which had been given in evidence on the second trial as well as on the first; by which he reserved to himself the power of resuming the land annexed to the old town, and selling it out in squares when he pleased ; and upon which, the judges when they ordered the new trial had expressed no opinion ¡ and, secondly, because no evidence had been offered on the second trial, to prove that the streets mentioned in Cleeland’s plat annexed to the deed, ever had been used as highways by the inhabitants of Georgetozvn.

The first ground taken on this second argument in arrest of judgment, was not insisted on in the opposition to the motion for a new trial on the first argument; because (as it Was alleged) the defendant wished to meet this case on its real merits, and that all the circumstances should come fairly out respecting the land in question, for the satisfaction of the inhabitants of Georgetown. On the present occasion, however, the defendant thought proper to avail himself of every advantage which the law would afford or allow him in defence of his right.

In support of this motion in arrest of judgment, the Attorney-General, Mr. Pringle, on behalf of the defendant, insisted, that the commissioners of the streets had no right of freehold in these streets, and consequently could not maintain this action of trespass. That the action in its present form was not a mere possessory action, or a special action for obstructing the passage of a highway, but was an action to try the right of freehold or title to the land in dispute, which right never had been vested in the commissioners. That the defendant had taken no advantage of this defect in the former trials, by pleading the matter specially, or demurring, or even moving for a nonsuit on the plaintiffs* dosing their testimony ; because, he knew he could at last avail himself of it on the present motion in arrest of judg-men. 3 Black. 393. 1 Cromp. 327.

That Cleeland, by laying off these streets never parted with the right of soil or freehold; that still remained in him, although he had granted a right of passage along them j for the law is clear, that the dedication of a street for the use of the public, is not an absolute transfer of the. soil, only the grant of a privilege as long as the public has occasion for it. 2 Str. 1004. 1 Esp. 390. Upon this radical and fundamental defect of title, they must fail, as the law will not bear them out. 1 Burr. 143. 146. The owner of the soil has a right to all above and under the ground, except only the right of passage to the public. There was still a further ground, he said, which rendered it impossible for the plaintiffs to recover in the present suit * for, although Georgetown has become a flourishing town, and is so at this da}', yet it never was laid out by any public authority, nor had it even the semblance of a corporation till a very late period; therefore, as members of a corporate body, they cannot maintain this action. The first notice taken of Georgetown by the legislature after the revolution,was in an act passed in 1787, authorizing the public market, regulating the streets, and for other purposes of police mentioned in the said act. By this act, the commissioners of the streets are empowered to keep them clear and in good repair, and to cause annoyances to be removed, and all obstructions, under certain penalties therein mentioned ; and the same powers were also given them, as had been given to the trustees mentioned in CleelancPs deed. By another act, passed in 1791, the commissioners are authorized to assess the inhabitants in a sum sufficient to keep the streets and causeys in repair, &c. but neither of these acts gave, or could give, any thing like a freehold to the commissioner's.

Í LcI. Iiaym. 491. Co. Lift.56. a. 12 Roll. 140, 141. 3 Mac, Mr. 668*

But supposing, the most that can possibly be claimed by the commissioners on any ground whatever, that Cleeland'ls deed had given a right of passage to the trustees for the use of the inhabitants to and along these streets originally, and that the present commissioners were their legal and regular successors in office, the fee of the land would still have been in Cleeland, or those claiming under him, though the right of passage might have been in the inhabitants of Georgetown; this would never give them a right to support an action of ejectment or trespass, to support a title. Their real and proper remedy would have been by indictment, for obstructing the use of these streets or highways, and not by action of trespass to try title. 3 Bac. 668. 2 Str. 1004. To' constitute a public highway, it must not only be laid oif, but used as such by the inhabitants; this is the dedication of it to the public, for public uses ; and for the obstruction of which, an indictment is the appropriate and legal remedy ¡ because, it then becomes an offence against the public, and not a trespass on private rights. An indictment, therefore, is the only remedy in such cases, 3 Bac. 668.

In case the court should order judgment to he entered up for the plaintiffs in this action, what would be the nature of it ? Why, that the plaintiffs should recover their freehold, and damages for the use and detention; which would not be establishing a right for the public, but for themselves as individuals. Whereas, a judgment on an indictment for a nuisance, would be that the sheriff with the assistance of a posse, (if necessary) should remove the obstructions out of the highway, that passengers might pass and repass with convenience and safety ; and in case of any opposition given to the sheriff, every individual would be liable to be indicted, fined and imprisoned.

This difference in the nature and effects in the civil and criminal jurisdiction of this court, most evidently points out the remedy which should and ought to have been pursued in this case. He therefore said, he would postpone any arguments in favour of the motion for a new trial, which was his second ground, and on which he felt himself strong, until he had heard the opinion of the court on this first point in arrest of judgment j as, if the court should be with him on that ground, it would preclude the necessity of any further argument.

The counsel for the plaintiffs took nearly the same grounds which had been taken on the two trials, with little or no variation; except, that in answer to the arguments in arrest of judgment, they contended, that the right of proceeding by indictment did not take away the right of the action of trespass ; and that in case of judgment being entered up for the plaintiffs, they might still be considered as recovering in trust for the use of the inhabitants of Georgetown, and not in their own private rights.

The Judges,

after fully considering this case, were unanimously of opinion, that the commissioners could not support the present action, to recover title and damages ; as the right of freehold was never in them. But that the proper remedy for obstructing a street or highway, was by indictment for a nuisance ; against which, however, non-> user would be a good plea ; for there was no proof on the second trial, any more than on the first, that ever these streets were actually laid off or opened, only delineated on paper; or that they were ever used as highways after Cleeland made the conveyance, on which this right was founded or claimed by the commissioners.

Rule made absolute for arresting the judgment.

Present, Grimke, Waties, Bay, Johnson, and Trees» vant. 
      
       This second case ought regularly to have been placed among the cases argued in 1803, hut it was judged hotter to subjoin it to the first case, so as tq make one continued report of the whole, than to make two disjointed reports pf them.
     