
    
      The State vs. James Creighton.
    
    Where a commissioner in repairing a road puts pieces of timber across it, and leaves the work unfinished, a traveller though he has the right to remove the pieces of timber if they obstruct his passage, yet if, in so doing, he dostroys or unnecessarily injures them, he may be indicted, under the 16th sect, of the Act of 1825, for hindering the commissioner from making use of such timber in repairing the road.
    
      Before Withers^ J., at Colleton, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ The defendant, with one Samuel Ballew, was indicted for a nuisance.
    
      “ Dr. Francis Glover, who was commissioner upon the Pon-Pon Neck roach which leads from Jacksonboro’, determined to widen and elevate a causeway on that road. To that end, he drew to that point the hands liable to work there, under summons to labor for twelve days. It was a heavy job, extending three hundred feet or more. He proceeded, some time in Aug. 1851, to procure the materials, and placed posts on either side, perhaps ten feet apart, and upon them large pieces of timber, across the road, fixed to the posts in some way, and called caps. The hands under the direction of Creighton and Ballew, worked at this undertaking for one week; the former had about twelve, and the latter about eighteen hands there. On the Monday morning of the second week those hands did not appear ; in the course of that day polite notes were received by the commissioner from Creighton and Ballew, (the latter being-the overseer of one Clifford,) requesting him to excuse their hands during the second week, on account of some exigency in the rice crops which were to be gathered. He wrote a cautious answer, not assenting to the proposition; but did not report them as defaulters, because subsequently (as he said) they agreed to supply the work of a week, and he agreed to receive it when they informed him it suited them ; he told them he was ready at any time to superintend. With the remaining hands the commissioner proceeded with the work until the expiration of the second week, being twelve days’ labor. Some of the caps were twelve feet above the surface, and th.e remainder less. At the end -of the fortnight the work was incomplete, the filling up yet to be done, in whole or in part, and was impassable with wheels. This, said Dr. Glover, the commissioner, was the consequence of the default of Creighton and Ballew by withholding their force during the second week ; that the work, by their assistance, could have been rendered quite passable if not complete, and probably in less than a week. On the conclusion of the work, he (Dr. Glover) was taken sick, by reason of exposure on that undertaking, and so remained at his pine-land place, some considerable distance off, for a fortnight or more. During that time the caps -were wrested from the posts at one end, and laid along the sides of the track of the road, and “ some were destroyed,” said Dr. Glover. In summer, he said, Creighton and Ballew alone used that part of the road habitually; and when, in the following winter, he did employ their hands, they could not complete the job at the causeway on account of the mischief done to the work as he had left it. Creighton had requested him to take away the caps, that he might pass on wheels. He, however, did not wish to take them away, or undo any of the heavy work that had been done, because he was in daily expectation of notice that he would have the labor due by Creighton and Ballew, and thereby complete the job.
    
      “ The road was passable when the caps were removed, hut not in good order. They were removed in a few days after the first of September. One witness said ‘ the caps were thrown off on one side, and some of the mortices were injured. If all the hands had been employed the twelve days, and made properly to do duty, the work could have been finished in that time. Some thirty caps were removed, large and heavy timbers.’ Another said they were ‘ twisted off at one end.’
    “ The indictment contained a count at common law as for obstructing a highway, hut it contained a description of the manner of doing it, corresponding with the facts as I have set them fortlp In my charge, the attention of the jury was withdrawn from that count, inasmuch as in the actual state of things, what was done did not obstruct the road, but rather the reverse.
    
      “ The second count was framed under the 16th section A. A., 1825, (the road law.) It imputed the offence of ‘ hindering’ the commissioner in the use of the materials which, by that section, he is authorized to take and use.
    “ In regard to the second count, I told the jury I thought the defendant, Creighton, might have the right to remove the caps so that he could pass, notwithstanding the difficulty he encountered may never have existed if he and Ballew had sent their hands as they were bound to do; for their default, in that particular, was not a matter to be tried here. But if he could have removed the timbers (as a witness said he could, that ‘ twelve hands could have lifted them off,’ and as manifestly he might) without injury to them or the posts on which they rested, and yet he had injured the materials, my judgment was, he had violated the true intent and meaning, in one particular, of the 16th section of the Act aforesaid.
    “ The jury rendered a verdict of guilty against Creighton, and not guilty as to Ballew.”
    The defendant, Creighton, appealed and now moved for a new trial on the grounds
    1. Because his Honor erred in charging the jury that if Creighton did remove the caps, and in removing them injured them, or the posts to which they were fastened, more than was necessary, he was guilty of violating the 16th section of the Road Law of 1825, under which he was indicted : Notwithstanding the proof was, that the removal of the caps rendered the road, before impassable, passable, and took place more than three weeks after they had been put down.
    2. Because his Honor ought to have charged the jury that a commissioner of roads has no right, even for the purpose of repairing, to place obstructions in a public highway, unless they are removed or used within a reasonable time ,• and that any citizen, whose use of the road is obstructed beyond the time allowed by law for its repair, has the legal right to remove such obstructions by the readiest means in his power.
    3. Because the evidence sustained neither count in the indictment, and his Honor ought to have Charged the jury accordingly, and that the defendant was entitled to his acquittal.
    
      Treville, for the motion, cited Hawk. PL 0. 75; 2 Chit. Or. L. 613.
    Bonham, Solicitor, contra.
   The opinion of the Court was delivered by

Wardlaw, J.

The 16th Sect, of the Act of 1825, (9 Stat. 562,) confers upon every Commissioner of the Roads the power of invading the rights of private property, to procure materials for the work committed to his superintendence ; and provides for the punishment of all who may in any way hinder him from making use of such materials, or in any unlawful way obstruct passage on a road, or hinder, forbid, or threaten a traveller thereon. Hindrance from the use of materials is most likely to he made by the owners of adjoining lands, when the materials are first taken, or before: but the words of the section are large enough to embrace any improper interference with materials, whereby the use of them contemplated by a Commissioner in discharge of his duties, is embarrassed before its completion. The removal from a road of materials which are there serving the purpose designed by a .Commissioner, after his scheme of improvement has been completed, would, if not justified by necessity, or not plainly beneficial to the road, be an obstruction: when slight, it would differ from digging up the road only in degree, and when serious enough to deserve notice, it would be punishable under this section. Removal of such materials, before the scheme of improvement was completed, would necessarily, to some extent hinder the use of them. Sometimes it might be justified by necessity, in the exercise of a traveller’s right to passage over the road, but the justification would in every' case depend upon circumstances. A Commissioner must have the right to impede, and even wholly to interrupt, travel on. a road, when it is necessary for him to do so in making repairs. He is bound to do so in the least degree, and for the shortest time, consistent with the contemplated improvement, in like manner when the traveller is obliged to proceed, and can make ' his way by reasonable interference with materials, he is bound to hinder the public work in the least degree consistent with his passage. If a Commissioner, when he quits his work, should leave a road impassable, either by reason of materials incompletely used, or of any other obstruction, he would be guilty of a nuisance, and every traveller would have the right to remove the obstruction. But this right would, when the obstruction consisted of materials known to have been placed with-a view to repairs yet unfinished, be still circumscribed by the duly of hindering the improvement as little as possible.

In the case before us we may then assume, as the defendant has urged, that the Commissioner had exhausted the labor at his command, except of certain hands, and that his sickness had prevented the completion of the work by them, that the work was stopped, the defendant guilty of no delinquency, and the Commissioner liable for a nuisance; still the defendant knew that the timbers had been placed with much labor for use in repairing the road; he was obliged to pass and had a right to remove them; but he could have removed them without injury, and, as the jury have found, has destroyed or unnecessarily injured them. He has thereby occasioned additional labor in making the repairs then in progress and subsequently completed, and so has unlawfully hindered the Commissioner from making the intended use of the timbers which were destroyed or injured.

The motion is dismissed.

FROst, Withers, Whitner and Clover, JJ.,.concurred.

Motion dismissed.  