
    Capers vs. Wilson.
    The act of 1817, taking, away from the Commissioners of the roads tiie power to grant or open any new road over the lands of psrsons who shall signify to the board any opposition, &c. was held by the court to extend to 11 private paths," mentioned in the act of 1788, and to all description of ways.
    It was also held that the Commissioners had not the power to shut npa'new way which they had opened, and to open again an old road which they had closed. The commissioners are not the judges to determine the-necessity which gives a way.
    Where a party is entitled to a right of way over the lands of others, the .owner of the land, and not the claimant of the road is authorized to lay off the road, in such a manner as is least inconvenient to himself; and if he refuse to lay off the road or obstruct it, an action should be brought against him.
    It seems, that jf the plaintiff is' entitled to a right of way oyer the defendants land, the erection of gates upon the way is not such an obstruction as will give a right of action.
    This case was tried before Mr, Justice Johnson. The reporter could not procure the grounds of appeal, as the brief is not to be found in the clerks office. The case can be but imperfectly reported without the grounds of appeal, but it is thought best to publish it as imperfect as it is. The following is the report of Judge Johnson.
    “This was an action on the case to try the right of way from plaintiffs residence on Wadmalaw island to the public road leading through it.
    As long ago as any of the witnesses recollected, there was a road running in the general course of the road in question and differing from it very little, which was used by the persons then residing where plaintiff does. The record of the proceedings of the board of commissioners was produced, from which it appeared that this road, on the application of Isaac Rippon, who was the grand father of the plaintiff, and who then lived where he now does, was laid out on the 12th April 1772. Before 1800, the place, through which the road ran, was woodland, and after that the defendant cleared it, and some disputes arose between the parties about the obstructions which the defendant put on it. In April 1811, the defendant petitioned the board of commissioners to appoint a committee to examine the road and allow him to alter it. In Aug. 1811, they reported and recommended that the prayer of the defendant be granted; which was agreed to, and a committee appointed to lay out the road. In 1812, the committee re- ■ ported that they had laid out the road accordingly. This road was laid out without the defendants plantation, along the margin of the marsh. It was a pretty good way, but not so good as the old, and subject to injuries from high water. The road remained unobstructed until the defendants fence, along it, rolled down, and he then put some gates across it. On the 5th April 1819, the plaintiff complained to the commissioners about the obstructions, and prayed that the old road might be restored. The petition was granted, and a committee appointed to lay it out,» In 1820, the committee reported that they hadlaidout the road according to the order. The defendant cut ditches across this road and obstructed it. and for' this injury, this action was brought. These two-were the only roads ever used from the plaintiff’s residence to the public road; and one witness, Mr. Jenkins, stated that the plaintiff’s residence was on a point ofland surrounded by marsh, and no way could be made to the public road but through the defendants land.
    As to the first ground taken on the motion, I observed to the jury that the act under which the commissioners acted, ‘gave them unlimited powers, as to making and laying out all such public and private toays as they should deem necessary, And, in remarking on the argument of the counsel, “that their powers were confined to ways arising from necessity.” I observed, that the commissioners were tojudge of that necessity and that their judgment ought to be respected. But supposing the argument to be good; yet in regard to the ■present case, the necessity existed, and the commissioners acted within it.
    And as to the 2nd ground, I do not know of what the fact assumed in this ground is predicated, as 1 understand the road wasmade precisely on the ground laid out by the commissioners, and of the width directed by them; twenty feet including the 'ditches. The original road ran through the woods and was crooked and narrow. If the objection be that it is not precisely in the track óf the old road, the answer is that all the changes were made to cut off the angles in the old road, so that a favour rather than a prejudice was done to the defendant. If the objection be that it is wider than the old road; the answer is, that it is not more than the usual width. If the plaintiff is entitled to the old road, defendant has obstructed it and the action lay; and so if he was entitled to the new road, that was obstructed.
    As to the third ground. I did so charge the jury and think so still.”
   Nott J.

If this case had been submitted to the jury on the simple ground, that the evidence authorized the pro-vmmptiou of a grant, the court might not, perhaps, have felt disposed to disturb the verdict: but whether the evidence was sufficient to have authorized a verdict on that ground is a question on which it is not now necessary to express an opinion. Whether the plaintiff was not entitled to a right of way from necessity was also submitted to them; and on that ground they were instructed that the Commissioners of the Roads were authorised to judge of that necessity and to lay out "-the road according to their view of the subject. My individual opinion is that the act of 1788, from which it was supposed they derived such authority, delegates no such power. My brethren, however, differ in opinion from me with regard to that construction of the act; but as they consider that part of the act repealed by the act of 1817, which brings them to the same conclusion to which! had corne, it becomes unnecessary that 1 should express the views which I had taken of the act of 1788. The act of 1817 provides that whereas much .injury and vexation to the citizens of this state have accrued from the improper exercise of the power of theCommis-snissioners of the roads to lay out and open new roads through their plantations and lands: Be it enacted &c. that no board of Commissioners of the roads in this state shall hereafter, have power to grqnt or. open any new road over the lands of persons who shall sig- " aify to -the said board any opposition 8zc. Now although •that act does not make use of the words “ private paths,”1 which are used in the act óf 1788 but speaks of “ roads” only, from whence it might be inferred that it was only the intention of the legislature "to restrain them from laying out "public roads; yet when the object is considered, the court are of opinion" that it must be construed to include all discription of ways, whether public high ways or private paths. The object was to set bounds to that uncontrolled authority which the Commissioners had previously exercised over the ::he rights of the citizens:- And if they cannot be permitted to exercise such authority when in there opinion the public good requires it, it cannot be supposed that the legislature intended to invest them with the dangerous power of taking the property of one -man and giving it to another. If the ■ plaintiff was entitled to a right of way from necessity, the defendant was bound to allow it to him. But he was authorized to lay, it off in any manner the least inconvenient to himself. He was under no obligation to subject himself to an inconvenience for the convenience of the other: and if he refused to lay off a road or obstruct one which he had laid off, the plaintiff could have maintained an action against him. - But it was a' case in which the Commissioners of the roads could not interfere. The road in question then has been opened without any competent authority and against the consent of the defendant; the plaintiff therefore, acquired no right of way by that act of the Commissioners, nor any right of action by the obstruction complained of The motion for a new trial must, therefore, be granted on the ground of misdirection.

But there are other questions involved in this case which are worthy of consideration.

Suppose the plaintiff entitled to a right of way oves-the defendants land, is the erecting of a gate upon it such an obstruction as- to give a right of action? Is the owner of the land under an obligation to subject himself to the expense and inconvenience of keeping up a lane-through his plantation for the accommodation of a single individual? Must he make a thoroughfare for all the community and expose his plantation to the inroads and ravages of all the domestic animals in the country, merely because his neigh-bour, for whose particular use it is allowed, cannot submit to the inconvenience of opening arid shutting a gate? Is such a state of things consistent with those equal rights and privileges >vhich constitute the essential requisites of a free government? These are questions which in all probability must be-encountered on another trial. Something like mutual accom* roodation ought to be expected in such cases; and, I think it Worth the consideration of the parties whether the indulgence ©f such a disposition might not probably lead to ns favorable a result in this case as may be expected from any other source.

Motion granted, 
      
       On the subject of a right of Way, seethe authorites collected in Met-calf's Ed: of Slarkie on Evidence, 3 vol: 1676, and the doctrine of Prescription generally is well treated on at page 1200, of the same volume.
     