
    
      James Nash vs. M. W. Peden.
    
    1. A private right of way over unenclosed lands cannot be acquired by twenty years’ uninterrupted usejper se; the claimant of the right must use adversely to the owner.
    2. Wo private action lies for injuries to “ private paths," common to the public.
    3. The remedy is by indictment.
    
      Before Earle, J. at Greenville, Spring Term, 1842.
    This was an action on the case, for obstructing the plaintiff’s right of way.
    The plaintiff prescribed for a right of way over the defendant’s land, from his present place of residence into, the highway leading from Laurens to Greenville ; and also in another count, for a like right of way from another plage where he formerly lived, into the same public road, at the same point, from the other side, so as to form in fact one continuous way from the one place to the other.
    The use of the way for forty years by the plaintiff, and those who preceded him in the possession of the same lands, was clearly proved ; and that the way was used indiscriminately for all purposes; for carts, wagons, and other carriages, as well as for riding and walking; and this use was open and notorious. Until within a few years, the way passed entirely through wood-land. From the present dwelling of the plaintiff to the public road, as formerly it ran, there has been no change in the way for forty years. At one point on the other side, near a small pond, there have been several changes, for a short distance only, and not varying the direction, the way first passing one side of the pond, then through the edge of it, then on the other side. One of these changes was made by the plaintiff himself, many years ago; and the last of them by the defendant, a few years ago, who then enclosed the pond within his field, leaving the way on the other side. From the present dwelling of the plaintiff, described as one terminus of the way prescribed for, it passes into other parts of the 'neighborhood,, hnoion as a settlement road, until it teas obstructed, and finally closed up by the plaintiff, and it now remains in that condition. It was further proved, that the plaintiff had occasionally repaired the way by removing trees that had fallen across it.
    
    
      His Honor was of opinion that the use of the way by others who lived in the rear of the plaintiff, and who came into it at his house, in order to arrive at the public road, did not deprive the plaintiff of the right to maintain this action, if in fact the way had been always used by himself and his predecessors, as incident to the land; that his enjoyment of the way need not be absolutely exclusive in order to sue; although his total obstruction of the way beyond his house would seem to shew that it was exclusive. The presiding Judge likewise thought that there was a material difference between the use of a way over another’s land, by merely riding or walking over it, and the open and notorious use by wagons and other wheel carriages; not that the court held an absolute right could be acquired even by this use only; but it was submitted to the jury whether this use, with occasional repairs, by removing fallen trees, and an actual change of the road on one occasion, without consulting the defendant, sufficiently indicated the assertion of a hostile claim to make the use adverse. The change of the road by the defendant, when he inclosed within his field the pond already mentioned, was an ob • struction which would support this action, as the statute was not pleaded. Another recent obstruction by a fence was proved, and the jury found for the plaintiff.
    The defendant moved to set aside the verdict and for a new trial, on the grounds subjoined.
    
      For a nonsuit.
    
    1. Because there was no sufficient evidence of an adverse possession of the way in dispute, by the plaintiff or those under whom he claimed.
    2. Because the way prescribed for is a settlement road, common to the whole neighborhood, as well as to the plaintiff, and therefore a private action could not be maintained, unless for special damages.
    For a new trial on the above grounds, and also,
    1. Because his Honor the presiding Judge erred in charging the jury that there was a material difference in the right acquired to a private way by riding and walking-on the road, and by using it for wagons, &c.
    
      2. Because his Honor erred in charging that the changes made on the road by the defendant, when he enlarged his field, made no difference, provided the main direction of the road was not changed.
    3. Because the verdict finds the road through the middle of the pond, whereas the proof was that the road through the pond had existed only for a short time.
    4. Because there was no evidence that the road was over the same ground twenty years, but on the contrary, the proof was that the road was three times changed within the last twenty years.
    5. Because the verdict was against law and evidence.
    Mr. Perry, for the defendant,
    argued — According to our statutes and judicial decisions, there are three kinds of roads recognized in South Carolina — “ high roads,” “ private paths,” and “ private ways.” See 9 Statutes at Large, 54, 55. There are two kinds of public roads in South Carolina, to be kept up at the public charge and expense. The road claimed by the plaintiff, falls under one of these classes. It is a private path” or neighborhood road, and if the neighbors desire it, they may have it established as such. But the plaintiff cannot claim it as a “private ioay.” See 9th Statutes, 126 ; 3 Brevard’s Rep. 85; 1 M'Mullan, 47; 1 Bailey, 56; 1 Bailey, 341.
    Nor was there sufficient certainty and identity in the road claimed by plaintiff, to prescribe for it. See 2d McCord, 450 and 452; 3 M‘Cord, 139. The road claimed was constantly being changed in some part of it. The plaintiff only used the road in the same manner and to the same extent as all the rest of the neighbors.
    The proof was not sufficient to shew that the plaintiff claimed the road adversely to the rights of the defendant. As to the nature of such claim, see 1 Dudley, 94; 1 Cheves, 4. Where the road runs entirely through wood land, it must be regarded as a mere convenience. 1 M'Mullan, 329.
    This road may pass through the lands of twenty persons, and will the law presume that the whole neighborhood made a contract with each owner of the soil for the liberty of passing over it Í In deciding this case, reference must be had to the condition of the country, and the habits of the people. Both are very different from that country whence we derive our law on the subject of the right of ways. In England all tlieir lands are enclosed. The right of prescription for a way is consequently a most reasonable one in that kingdom. But. in the United States a very small portion of every farmer’s or planter’s lands is under enclosure. Hence his lands are liable to be passed over in every direction by his neighbors. If hé were to forbid this travelling, he would be considered a most unkind neighbor and selfish man. The whole community know that when he wishes to close his lands he has a right to. do so, and to stop the roads which run through them. The séttling the principle in this case is of great importance to all the land holders. Roads cut up their lands in every direction, and have been travelled ever since the first settlement of the country. If these roads cannot be stopped, the lands will be very much impaired in value. These roads are made without the knowledge of the owner of the soil, and cannot be prevented. If he were to see a man passing over the road, it would be in vain to forbid him, and equal folly to sue him. No jury would give damages enough to carry costs, and yet if he does not sue or fence in his lands, he must lose his property !
    A right of way may be prescribed for over uninclosed lands, where the way has been exclusively used by the plaintiff, and he has asserted his right to it by acts adverse to the rights of the owner; such as claiming the road, working on it, and keeping it in repair.
    The verdict finds the road through the centre of the pond, where it never run, and where it cannot run more than one half the year. This is certainly, in the language of Mr. Pettigru, in the case of Turnbull vs. Rivers, “a fourth mode of acquiring a right of way, by the verdict of a jury."
    
    Mr. Young, contra.
    The plaintiff opened and repaired the road.
    This case is like Smith vs. Kinard.
    
    Mr. Bobo, in reply.
    If there was a necessity for the road, then he would admit the right.
    He has another by a better road.
    
      No prescriptive right.
    This is a public way, if it be any thing.
    The mere cutting out trees thrown down by a storm is not enough to give a right of way.
   Curia, per

Evans, J.

In the case of The State vs. Mobley, M'Mullan, 44, it was decided that a road originally laid out by order of the county court as a travelling road, and ordered to be kept in repair by . the persons who lived contiguous thereto, and had the benefit thereof, was so far a public road, that one obstructing it might be indicted. It is very clear, from the old Acts on the subject of laying out roads, that public roads, as distinguished from private ways, are of different kinds. As early as 1721, the distinction between public highways, and private paths, was made; and this was kept up in all the laws relating to the powers of the commissioners of roads, which were passed, up to the road law of 1788. Since that time, the words “ private paths” have, I believe, been dropped in'the legislation on the subject of roads. These private paths have not been supposed to be individual roads, or private ways, but, as is said in Wethers’ case, (see 3 Brev. 85, State vs. Mobley, 1 M'Mullan, 47,) neighborhood ways, “ not commonly used by others than the people of the neighborhood where they are, although they may be used by any one who may have occasion to do so;” and the Act of 1741, (see 9 Stat. at Large, 128,) directs at whose application they shall be granted, and who are to .open and keep them in repair. If you can go back to their origin, and shew they were opened by public authority, or if it can be shewn that they have been worked on and kept in repair by the labor of a neighborhood generally, I should suppose such roads could not be regarded as private ways, and the remedy for obstructing them would be by indictment and not a civil action. In relation to this kind of public roads, I can see no reason why the public may not claim by prescription, in the same way as individuals; but the evidence of right arising from prescriptive use alone, ought, perhaps, to be of the same adverse character as in the case of a private way. If this road was of this character, then the present action for obstructing cannot be maintained. But I must not be understood as meaning that where a clear right of private way is established, that it is to be defeated, because other persons than the plaintiff have used the road, such use being in no wise inconsistent with the right, although that fact may greatly weaken the presumption of a grant arising out of the use. Nor do I suppose the proposition can.be maintained, that a private right of way must be exclusive. I can see no reason why two or even more may not acquire a right, in the same way and by tile same adverse use by which one may acquire it. But if the same evidence by which the right is established in one or two; would establish a right in the neighborhood generally, then the road would not be a private way, but one of the neighborhood roads, or private paths spoken of in the Acts of the Legislature. I have made these remarks, because one of the grounds alleges, that this road was -a settlement road, common to the whole neighborhood, without intending to express any opinion of their applicability to this particular road.

I think it is now pretty well settled by the cases of Sims vs. Davis, Cheves 1, and Hogg vs. Gill, M'Mul. 329, that no prescriptive way can be established otherwise than by an adverse use of it for twenty years; and where the way passes through forest land, the mere use, unaccompanied by any acts indicating that the party claims the, use as a right, cannot give a right of way. In this case the acts from which the plaintiff attempts to give an adverse or hostile character to his use, are, that he cut out a tree or, trees that had fallen across the path, and that at different times the way had passed on one' side of the pond, then on the other, and at another time through the edge, one of which changes had been made by the plaintiff. Exactly when these changes were made,' the report of the case does not inform us.

The use, I apprehend, in order to give title, must have assumed its character as adverse twenty years before the right can accrue. Though I would not be understood to lay it down as a rule of law, that some assertion of right, by use hostile to the owner’s title, should be proved to have been made twenty years before. These recent acts, acquiesced in by the owner, may go to the jury as evidence that the use had been in derogation of the owner’s right for the full term of twenty years. In this case, we are of opinion, the acts proved are not such as establish a use hostile to the right of the owner of the soil. They are perfectly consistent with the supposition that the use was permissive, as all these roads through wood land are presumed to be, until some evidence is offered to give them a different character, which the plaintiff, in this case, has failed to produce. The motion for a new trial is therefore granted.

Richardson, O’Neall, Earle, Butler and Wardlaw, JJ. concurred.  