
    R. I. Turnbull vs. William Rivers.
    In order to presume a grant of a way, uninterrupted use for at least twenty years is necessary, and the identity of the road must be established, and an acquiescence shewn on the part of the owner of the land.
    The necessity from which a person derives a rigid of way, is when one person sells to another lands inclosed on all si des by his other lands, there the law imposes an obligation on the seller to allow the purchaser a way over his adjacent lands..
    The inconvenience of going always to one’s plantation by water, will not amount to such a necessity, as will give a way; for necessity and notiu-convenience gives the way.
    Where the plaintiff was permitted to pass over the unenclosed lands of the defendant, as all the rest of the neighbors, and the way changed with every change of the fields and fences, atthc will of the owner, lie cannot claim such way by prcsniption.
    It seems, if a person owns land iyingbetween two roads, one on the east ail'd one on the west, and shall sell that lying on the west, it gives to the purchaser'no right of way across the seller’s land, to the road hounding him on the east, whatever may be the distance or difficulty of getting to that toad.
    So; it seems, if a person should sell to another the extreme point of a neck or tongue of ¡and, surrounded hy an open sea, or navigable stream, except on one side, the fact of its being sometimes more convenient to the purchaser to pass through ihe vendor’s land, than to go by water, will not giye him a right of way; and the case is much stronger when it is not between vendor and vendee.
    The court will grant a new trial tolies quolies where the verdict Is contrary to law; and when there is no evidence on which the jury can found their verdict, and the case is brought before the court, in such a shape that it can put an end to unprofitable litigation by a nonsuit, it will to granted.
    Trespass for obstructing a way.
    Tried before his Honor Judge Richardson, in January Term, 1824.
    This was an action of trespass for obstructing a way claimed by the plaintiff to his island, called Goat island, over the defendant’s land, called Stent’s point. It was proved that there was no land passage to Goat island, except across some part of defendant’s plantation, and this action was for a right of way through his plantation. A vast number of witnesses' were examined on both sides, and the evidence contradictory; however, the Reporter considers it only necessary to publish such parts of the casé as presented legal points on the very important doctrine of prescription. After the evidence closed, the plaintiff’s counsel contended that a grant of way in the O ' ners of Goat island was to be presumed from 1 .oag island being an old settlement; that the convenience of the way proved there was a grant of it; that W. Lawton proved there was a beaten path which was used five years before 1776; that indeed the Savannah road continues to Goat island, though they disclaimed the right to a cartway; and finally, that it was to be presumed that the grantee of Goat island was also the grantee of Stent’s point, and when he granted out Stent’s pointy he reserved the right c¡í nay ex necessitate from bis Goat island place, through Stent’s point, and that non user for for 20 years did not destroy a grapt of a right of way.
    To these arguments, the defendant’s counsel replied, that no prescription in favor of Long island could benefit Goat island; that if convenience could raise a presumption of a right of way, inconvenience could destroy it, and this was more inconvenient to defendant than convenient to plaintiff. It was denied that Lawton proved any pa h appertaining to Goat island; he spoke of Long island; that if the Savannah road was the one claimed, it was a public road; and therefore/ plaintiff must fail in his suit, as he could not claim a private right of way over alpublic road, ( Co. Litt■ 5G, 1 Esjo. R. 148;) that all the presumptions about the owner of Goat island also owning Stent’s point were baseless and fanciful, and if true, the consequences did not follow ex necessitate. That the plaintiff must fail in this case, on the ground of necessity, under the decision of Lawton and Rivers, (2 XlCord, 447;) for the way by water was just the length of the way by land; that there was no proof or presumption of a grant, and the ground of prescription failed, because there was no adverse use proved to be continued, and uninterrupted for above twenty years, according to the doctrine established in the same case; nor was the road identified, but was here hodie, and there eras.
    
    The judge charged the jury, that his directions to them would be better given by reading the decision of ihe Constitutional court in the case of Lawton and Rivers, than by any other charge; as that case shews the nature of the necessity to be proved by a plaintiff, and also the requisites oí prescription. That as to the proof of identity, he left it to the jury, but stated that in his opinion even the termini need not be preserved, and yet the same road might exist, if the thoroughfare were one and the same and such a continued use of the same general coarse and road as to keep up the idea of a grant. He told them that there was testimony to raise a presumption of a prescription in Littlejohn for a way to Long Island, but that it bad nothing to do with the ease* and the jury should not regard it; that it would be immaterial to plaintiff even if Littlejohn could prove it, as plaintiff was not connected with him.
    The jury found for the plaintiff a cart way on the line between Mrs. Stent’s and Mallory Rivers,’ and damages-enough to carry costs.
    A motion was now made to set aside the verdict and for leave to enter a nonsuit, or if that be refused, for a new trial, upon the following grounds:
    1st. Because, as the plaintiff, by his declaration claimed a cart way, and no cart rvay whatever was proved to have existed at any time over any part of defendants land, a nonsuit should be granted.
    2nd. Because, if such a way ever existed, the terminus a quo was not ascertained or proved, and, therefore a nonsuit should be granted.
    3rd. Because no verdict for the plaintiff could have been legally found on the right of way by necessity; neither should it have been left to the jury on that ground; for it was proved that the access bj' land and water, other than over the way claimed, was at all times as short, and when the tide was high, was shorter than any passage over the defendants land; and, therefore, under the decision of Lawton and Rivers, ( 2 M‘ Cord,) no necessity could exist.
    4th. Because there was no circumstance in the cas© which could authorize the presumption of a grant of the way from the owners of Stent’s point to the owners of Goat island.
    5th. Because there was no prescription proved in the owner of Goat island from continued and uninterrupted use; , nor was the way claimed identified by any definite limits, nor was the use thereof, if any existed, exclusively in plaintiff or his predecessor, or adverse to the defendant, or to those through whom he claimed,
    6th. Because his honor stated to the jury that he did not think it necessary that even the termini of the way claimed should be proved to have been preserved, in order to establish the existence of the way prescribed for.
    7 th. Because the said verdict was contrary to law, evidence, and the charge of the presiding judge.
    
      Argued, 22nd February, 1825.
    
      Prioleau, for the motion,
    Had hoped that the case of Lawton and Rivers, would have settled this. It is essential to prove the prescriptive right as claimed. (Rotheram vs. Green, JYoy 67: S. C. cited in 1 Camp. Rep. 315-note.) The plaintiff has prescribed for a cart way. Unless twenty years use be proved he should have been nonsuited. The proofis, that one witness once saw a cart going that way. Lawton’s foot path is not more thah a foot wide. There was not a shadow of testimony. One of the counsel disclaimed.
    The terminus a quo has not been proved. No witness can tell where it commenced, which should have been done. {Albon vs. Brounsal, Yelv. 1-64 and note.) The terminations of a road prescribed for must be proved. He must shew a quo loco ad quem locum, and the road should be constant, not .one place hodie, another eras. A nonsuit ought to be granted.
    In 2 M‘Cord, 445, Lawton and Rivers was a case regarding the same way, and that case shews there must be an actual necessity. The road being direct from Turnbull’s to Dixon’s island landing, did not create an actual necessity. Here no grant is shewn.
    As to prescription, use must be continued at least 20 years and must be of the same way and must be adverse, and must be of the same way without Variation. The testimony is clear that it continually varied. Adverse possession is negatived by the testimony. It always went by Mrs. Stent’s permission.
    
      Hunt,, contra.
    — The jury have decided on facts. The judge charged the jury correctly. Whether the road was used, continued, or obliterated, were matters of fact. To .-et aside a verdict for wrong finding, it must be .so wrong as to warrant a belief that the jury were influenced by corruption, or obstinacy and ignorance, bordering on it. From Stent’s point thejr cross a similar marsh to get to tiio main of James island. It may be presumed that the same person owned all. Superior convenience strengthens presumption.The proof of a road to Long island, shews a road to Goat Island, an intermediate point. Goat island, a small place, could not afford frequent acts of user. The proof of a cart once passing, may with other facts, raise a presumption of further user. The making a gate and road suitable to a cart, for use in a single instance, is a strong presumption. Here is great necessity in this case. The property has been shewn to be utterly valueless without this road. By water it is a difficult passage ®f several miles.
    
      Grimke, same side.
    Cases similar in principles may differ in facts. In the case of Lawton vs. Rivers, there was as near a way by water as by land. Both residence and plantation were on the same high way. In this case to go by water is two or three times the distance by land. In that case the plaintiff was obliged to go part of the distance by water. Presumption is that both places here were granted together;' if so, the original owner had the right of way, and reserved it when he, sold Stent’s point. Evidence that traces of a way were plainer some years since. The contradictory testimony here is peculiarly for a jury.
    It is said the jury found a cart way from no evidence fout the passage of a single cart; but other circumstances were proved; as making gate and causeway. The judge laid dowa the law correctly. It is said the terminus a quo is not proved. It is the Savannah road, not a particular point on that road,It is not necessary to pursue always the same precise line. Identity of the use determines the identity of the road. It may be easy, to effect the- some purpose; viz, to get from the Savannah road to Goat island. The witnesses say they had rather give up the island than use it without this road. Here Was practical necessity. No oilier practically convenient method of getting there.
    The authorities quoted do not apply to the present case. The ways were defined with precision there, here it must be necessarily varying in some degree, it has been sufficiently identified in this case. Occasional deviations will not destroy the identity;
    
      Petigru, Attorney General in reply,
    Said there were three modes of getting a road, and it is questionable whether there is not a fourth — by the verdict of a jury. It is not a matter for the jury to judge of the necessity! Doubted whether the jury can find a right of way from a self created necessity. Can one by purchasing part of A’s land acquire a right of way over B’s; a right which A did not possess? (1 (Saund. 323, n. 6.) Is the rule recommended by expediency? Does the law give a right to one to take from another’s land, because he adds much to the value of his own? Because it will be a matter of convenience to cultivate Goat island, and make five bags of cotton, does it authorize him to commit a trespass? The necessity originates when he wants to cultivate. As to the presumption of a grant, has it been proved by presumption? The presumption is assumed that all was owned by the same person. (% Evans’ Pothier, 340. fVilles 76.) Presumption is nothing, when it is in the party’s power to give positive proof. Must not give secondary proof, when better can be had. It is substituting possibility for proof.
    As to prescription, put it on the ground that possession gives a right to the land itself, and will do so to the accessories, (3 T. R. 159-J yet in analogy to the statute of limitations, possession must be constant and certain, as well as adverse. The user should be of such a nature as to imply a constant claim of right on one part, and acquiescence on the other, .ill the witnesses say every body went that way, as often as Turnbull and those under whom he claims; all the world have the same right. Here the grant is presumed from -’.ser. but they first presume user and then the grant, is the presumption of a grant more favored than tlie grant itseli? That, if relied on, must be proved. Proof of user here has been user by other persons, except in some slight instances. It has been rather proof of a public than a private way. ( Com. Dig. Tit. Chemin, 25 and 57.) If any thing was proved, it was the right of jumping fences. Like a prescriptive right of sporting. (Evans’ Potheir 240.) Necessitj? should be confined to the case of persons granting lands and is supposed to grant the right of way with it.
   Nott, J.

The law in relation to cases of this sort is so fully laid down in the case of Lawton and Rivers, (2 M'Cord 435,) that it will be sufficient to refer to that case for the general principles by which this must be governed. ThO court are satisfied that the plaintiff was not entitled to recover' cither on the ground of a grant or prescription. No grant was produced; no evidence of the existence of one could be inferred. In order to presume a grant, uninterrupted use for at least twenty years, -was necessary. And the identity of the road should have been established. But no such evidence was adduced. The island had been cultivated! before the revolution; but by whom or by what authority or for what length of time, did not appear. Littlejohn planted it one year by mistake about twenty years ago, and then aban* doned it. After him, but in what year, it is not ascertained, one Gibbs planted it, as the overseer of Stanyard. Whether he stayed more than one year is quite uncertain. And that is all the occupation that was proved of the Island, until the year 18 >0, when it was purchased by the plaintiff. I cannot discover, from the report of the presiding judge, at what time the plaintiff entered into possession; nor does it appear that- he cultivated it more than one year. It is, however, unimportant. For it was not long before the defendant enclosed the land and shut up the way, which was the obstruction for which this action was brought. But all the testimony, relative to the occupation of the island, is unimportant evidence of the use of the road; and admitting the use to have been coextensive with the occupation of the island, it would not give to the plaintiff a prescriptive right; much less is he authorized to set up any such right from the evidence offered on this occasion. It amounts to no more than this, viz: The several occupants of the island were permitted to pass over the unenclosed lands of the defendant, in the same manner and to the same extent as all the rest of the neighbors; and the way was changed with every change of the fields and fences according to the arbitrary will of the owners of the land. Allowing the use of the way appears to have been a mere act of courtesy; and there was no such identity of way proved, no such continued use by the plaintiff, or those under whom he claimed, nor such acquiescence on the part of the defendant as could be construed into a right. The whole case then resol ves itself into the question whether the plaintiff is entitled to a right of way from necessity? The necessity by which a person derives aright of way, is when one person sells to another lands inclosed on all sides by other lands. Here the law imposes an obligation on the seller to allow the purchaser a right of way over his adjacent land. (Perman vs. Wead, 2 Mass. Rep. 203. 6 Jacob’s Law D. Tit. Way. Howten vs. Frearson, 3 T. R. 50. 1 Saunders 323, Pomfret vs. Ricroft.) This is also said to be aright by grant, because the law implies a tacit consent on the part of the seller that the purchaser shall have free ingress and egress to and from the land so situated.- But there is no evidence that Goat Island was ever owned by the owners of Stent’s point; nor am I aware that it would strengthen the plaintiffs claim if the fact were so. The right in such, case must arise from necessity. If, therefore, a person owns land lying between two roads, one on the east and the other on the west, and shall sell that lying on the west, it gives to the purchaser no right of way across his land to the road bounding him on the east, whatever may be the distance or the difficulty of getting to that road. Such a way might be convenient, but there would be no such necessity as would impose upon the owner of the land an obligation to afford him such an accomrtiodii" tion. In analogy with that case, suppose one person should sell to another the extreme point of a neck or tongue of land surrounded by an open sea or navigable streams, except on one side, would it be understood that the seller should allow him a right of way through the whole neck of land, because it might sometimes be more convenient for him to go to his farm by land than by water? I should apprehend not. Much less would he have a right to demand such a privilege from the owners of the adjacent land who were not parties to the contract To bring the case more distinctly under our view, let us suppose James Island tobe the tongue of land now spoken of, a person residing in Charleston, at Haddril’s Point, or on Sullivan’s Island, .would never expect a right of way to the main land on the west, through all the intervening plantations, merely because his farm was inaccessible by land in any other direction. The inconvenience of going always by \yater to his farm would not amount to such a necessity as would entitle him to such a privilege. If under those circumstances, he would not be entitled to such u favor, could he entitle himself to it by purchasing another farm on the west end of the island? .A direct intercourse between the two places, so situated, would be vastly convenient; but that convenience would confer, no right. Now that is the case immediately under our consideration. Goat Island is accessible by water in every direction, except on the side from which the plaintiff claims a right of way. It is nothing more, therefore, than a matter of convenience, and not of necessity. And if the plaintiff were situated in any other direction from the Island, perháps he would hardly consider such a way as a convenience. This way then becomes important to him merely on account of the relative situation of the two places and comes precisely within the principle of a necessity created by the party himself which can furnish no ground of right. (1 Saunders 323. n. 6.) There is no evidence, therefore, which could entitle the plaintiff to a verdict on either ground.

it only remains, then to be determined, whether the court shall grant a nonsuit or new trial? It is not conceived that the trial by jury is of so little value as the counsel for the defendant seems to imagine. It is one of the greatest privileges which a free people can enjoy, and independent of its real and intrinsic value, it derives additional importance from the inestimable value which the people themselves imagine it possesses. The court feel no disposition, therefore, to intrench upon the right of the jury; and if there were any evidence which could be submitted to their consideration, a new trial would be granted. But it is equally the duty of the court to preserve the bounds of jurisdiction between the court and jury; and it would be as much an usurpation in the jury to undertake the exposition of the law as of the court to take from them the trial of the fact. Wherever, therefore, there is any conflicting evidence, anew trial will be granted. But when every point submitted is a conclusion of law which it belongs exclusively to the court to make, and where it appears manifest that better evidence cannot be obtained, it would be tantalizing the parties to send them back for another trial. It was a maxim of the civil law that that is the worst of slavery where the law is either vague or uncertain. And it is equally true in this country. The court will, therefore, grant a new trial toties quoties where the verdict is contrary to law; and when there is no evidence on which the jury can find a verdict, and the. case is brought before the court in such a shape that it can put an end to unprofitable litigation by a nonsuit, that course ought to be pursued.

In this case there was not a scintilla of evidence to authorize a verdict for the plaintiff. A nonsuit ought to have been granted in the court' below, and is, therefore, now ordered by this court.

Prioleau, and Petigru for appellants,

Grimke and Hunt, contra.  