
    
      James H. Pearce vs. M. A. McClenaghan.
    
    Wherein a private way differs from a neighborhood road, stated.
    The presiding Judge may direct the juiy to correct an informal or erroneous verdict so as to make it conform to the law and consistent with their intention.
    In case for obstructing a private way the declaration stated the termini, and that it passed over defendant’s land: — Held, that a general verdict for the plaintiff was sufficiently certain.
    If the owner of the servient tenement, over which a right of way exists, acquires the fee simple title to the dominant tenement, the right of way is extinguished; but if he acquires a less estate, as an estate for life only, it is not extinguished.
    A deed of land to a trustee, for the use of a married woman for life and after her death to her children, conveys to the trustee only an estate for tire life of the wife.
    The owner of the servient tenement purchased the dominant tenement as trustee for tire use of the wife of the owner of the dominant tenement, for life with remainder to her children: — Held, that such purchase was no extinguishment of the right of way, nor even suspension of it during the life of the wife.
    Case for obstructing a private way: plaintiff was not tire owner of the land, to which the right of way was appurtenant, but only had possession in right of his wife, who was cestui que trust for life: the first count in his declaration alleged that he “ was seized and possessed” of the land “ with the appurtenances and easements hereunto belonging,” &c. “and by reason thereof” was entitled to the way; and the second count alleged that he “ has been and still is possessed” of the land with the appurtenances and easements, &c. arid “ had and still ought to have a certain way,” &c.: verdict for plaintiff: on appeal it was contended that plaintiff could not retain his verdict under the first count, because there was no proof of seizin, nor under the second count, because there was no allegation that the right existed liy reason of tire possession: Held, that the declaration was sufficient after verdict for plaintiff.
    
      Before Evans, J. at Marion, Spring Term, 1851.
    The report of his Honor, the presiding Judge, is as follows :
    “ This was an action on the case, for obstructing a private way-leading through the defendant’s land from the plaintiff’s plantation .into the public road from Darlington to Marion Court House. That, as far back as any witness could remember, there has existed a road from the public road passing by the plaintiff’s plantation, and going down to the river at the mouth of Black creek, used by the plaintiff and those under whom he claimed, and by persons residing in the river swamp, in what the witness called the Duck Ponds, was clearly established by the witnesses. The plaintiff has resided at his place since 1831, and before him it was owned by the Hindses, by all of whom a road was used over the land now owned by the defendant, until recently, when it was closed up by a fence, and a road left open for those who lived beyond, through the defendant’s fields, with gates on each end. The plaintiff claiming to have a legal right of way, refused to accept the substitute and brought this action. The dispute was about the identity of the way claimed, and the adverse character of its use. The land over which the disputed road passed, was, formerly, the property of one Samuel Brown, who lived on the river and used the road to pass out of the swamp. He died many years ago. From him it descended to his son, Jerry Brown, who settled on the land, and cleared a field about 1825. He built a house and resided on the land. Before this it was woodland. In 1834, Brown sold to John McClenaghan, who enlarged the clearing and extended the fences as hereinafter stated. From him it descended to the present defendant, his widow. The road was 'several times changed by the owners of the land, and I find great difficulty in presenting an intelligible report of the case, for the want of a plat representing the road as described by the witnesses. Some of the witnesses knew the road as far back as 1801. It was then an old and well beaten road, and no change was made in it until Jerry Brown settled on the land about 1825, but during all that time it passed through woodland, and there was no proof that any work was done on it, except occasionally a log was removed which had fallen across it. At the time Brown settled on the land, it ran nearer to where he built his house than it now does. At this point he turned the road, to the west on the swamp side. The witnesses differed about the site of the road at the time. Some thought the road was on the east side of Brown’s house, and entered the public road near where a gin house now is, and some distance to the east of where the disputed road intersected it. Others said it passed on the west, and that Brown only threw it out a short distance further on the west, towards the swamp; whilst another witness said there were two roads, one on the east and the other on the west. Those going up towards Darlington used the west, and those going towards Georgetown or the river, used the east road. The latter, Brown shut up entirely. The former, he changed a little. I thought it likely this last statement was correct. But all agreed that, at all times, there was a passage around Brown’s field, which was travelled by those owning Pearce’s land, and others living on the Duck Ponds. There was also some difference in the recollection of witnesses as to whether Brown, when he shut up the old road, did not make a new road around his fence. Some said he did, and others that he did not. According to some of the witnesses, Brown made other changes in the road about 1832, further up towards Pearce’s. But after Mc-Clenaghan purchased the land, it was put back on the old site at this point, and a lane made by a fence on each side. Mc-Clenaghan was a merchant, and had an interest in keeping open this road for the use of his customers from the.Duck Ponds and the adjoining neighborhoods. This lane continued until it was shut up by the defendant in 1848. It was proved that McClenaghan’s overseer had worked on the road with Mc-Clenaghan’s hands and by his direction. And, on one occasion, when Pearce complained to him that the road was out of repair, he told Pearce to tell the overseer to make it passable. It was also proved, that Pearce had, on several occasions, worked on the road, by cutting down bushes and stumps and filling up washy and boggy places, whilst the land belonged to McClenaghan.
    “ In 1842, Pearce’s land, was sold under a ji. Ja. to satisfy a debt due to McClenaghan. At this sale, McClenaghan was the purchaser, and the sheriff conveyed the land to him, in trust for the sole and separate use of Mrs. Ann Pearce, wife of the plaintiff, during her natural life, and after her death to her children. Since the death of McClenaghan, Dr. Johnson has been appointed trustee, in the room of McClenaghan, and has given bond to perform the trust. He has settled with Mrs. McClena-ghan, as the administratrix of her husband, in which settlement was included the price McClenaghan paid for the land. He accounts, annually, with the commissioner for the proceeds of the crops, but Pearce is in possession, and has the entire management.
    “ The foregoing presents such a view of the points raised in the case, as will enable the Court to comprehend the questions made in the notice of appeal. On the first ground, I charged the jury that a private way was such as belonged to and was for the use of individuals, one or more; but a public road was such as the public in general used. It was not essential to prove they were laid out by any order of those in authority, or be worked on by the commissioners of roads, but I thought it essential that a public road should have a public character— be kept in repair by contributions of the labor of those who used it, and, in general, have their termini at a public road or some public place, as a town, village or public landing, so as to open it to the use of the traveller as well as the neighbors. Such was the road in Sartor’s case, and other cases where a public road had been established by prescription.
    
      “II. That, in general, when the owner of the land over which a private way passed, became also the owner of the tenement to which it was appurtenant, this was in law an extin-guishment or merger of the right. But I did not think the principle applied where he was seized for the use of another.
    “ III. That Pearce ‘being in possession, could maintain the action without proof of further title to the land.
    
      “ IY. Of the allegations in the declaration, I have no recollection, and do not remember they were brought to my notice. It was clear Pearce had not been 20 years in possession. His possession commenced in 1831. But he claimed through the Hinds family, who had been in possession for at least 20 years before. No title deeds were produced” but parol evidence was given of the succession of tenants, claiming through each other.
    “ Y. The jury returned into Court with a verdict for plaintiff merely. They were asked if they intended to give damages, and were told they should find some damages. They weir allowed to go back and amend their verdict, by finding a small sum for the plaintiff.
    
      “ YI. On this ground I have nothing to say, as I do not know what description of the way is contained in the declaration.
    
      “ YII. The jury were charged that if the plaintiff established a right of way as claimed, it was no objection that others used it, unless such use gave it a public character and established it as a public road.
    • “ YIII & IX. As to the law in relation to a prescriptive right of way, the jury were charged, that whether there over existed a grant of the way was not a question of belief, but an inference from the facts proved. That to establish such a right, there must be an adverse use for 20 years at least.
    
      “ That adverse use in law does not include the idea of hostile attitude to the owner oí the land, but means such use as one makes of that to which he has a legal right.
    “ The mere use of a road through woodland, is no trespass on the right of the owner of the soil. There is nothing in such use from which any inference of a claim of right can be drawn. Where, therefore, the road passed through woodland, our decided cases require something more than mere use. There must be some act of ownership proved, such as the opening the road, or the working on it — keeping it in repair- — such acts as are usually done by one claiming a right to do them. Or there must be some act of the owner of the land, amounting to an admission of the right, as if, when he cleared the land, he made a lane, or if he obstructed the way, he made another as a substitute for it.
    “ That a shifting way, which the owner changed and obstructed at his will and pleasure, without any recognition of the right, was but a permissive use, and could never ripen into a right.
    “ That the use must be of the same way for twenty years, but after that time slight changes would not affect the right.
    “I submitted the facts as proved, to the jury to decide whether, according to these legal principles, the plaintiff had established his right to the way claimed. ■
    “L Did the evidence establish the way anterior to 1824? The road was through woodland. There was no proof of any exercise of dominion, other than use by those under whom the plaintiff claimed. But if Brown, when he obstructed it, made another road in lieu of it, which was used as a substitute for the old one, that might admit of the inference that he recognized the legal right to the way, but if he closed up the road and made no substitute, then no inference of admitted right could arise.
    II. Had any right of way been established since 1824 ? The evidence was, that Brown had made some, but not very material alterations between that time and 1832; that McClenaghan, after one change, had put the road back. He made a lane, and occasionally worked the road — and that Pearce had several times worked and kept it in repair. The jury found for the plaintiff.”
    The defendant appealed, and now moved for a new trial, on the following grounds, to wit:
    1. Because his Honor charged the jury that unless there was evidence that the way spoken of in the testimony, had been laid out by public authority, or worked on by the people of the neighborhood generally, it could not be regarded as a “ private path” or neighborhood road.
    2. Because, if there ever was a right of way over defendant’s land appurtenant to the tenement occupied by the plaintiff, as claimed in this action, the same was extinguished by unity of seisin, when John McClenaghan, under whom defendant holds, acquired the legal title to the said tenement in 1842, by purchase at sale under execution, and a deed to himself from A. Carmichael, sheriff; and his Honor charged the jury to the contrary hereof.
    3. Because the plaintiff having in his first count alleged seisin in himself, of the tenement occupied by him, and claimed the way as appurtenant to said tenement, and “ by reason of such seisin,” and it having been clearly proved that he is not seised, but that the seisin is in another, the title set out by the plaintiff was disproved and he was not entitled to recover on this count, and his Honor charged the jury to the contrary hereof.
    4. Because the plaintiff, in his second count, not having alleged his right of way as appurtenant to his tenement, nor “ by reason of his possession of the same,” and not having proved twenty years continuous and adverse use by himself personally, could not recover on this count, and his Honor should have so charged the jury.
    
      5. Because after the jury, having been instructed in the charge of his Honor on the subject of damages, had brought into Court a verdict for the plaintiff generally, and the same had been published, they were permitted to return to their room and change their verdict by adding damages.
    6. Because the description in the pleadings of the way claimed, being uncertain and indefinite, the verdict of the jury, which is general, does not sufficiently ascertain the rights of the parties.
    7. Because the way claimed by the plaintiff appeared from the evidence to have been used by all the inhabitants of a region of country called the “ Duck Ponds,” equally with himself, and to have been open to every person who chose to pass, and if established at all, as a right, could only have been a “private path” or neighborhood road, for the obstruction of which a civil action will not lie, and the jury should have been so charged.
    8. Because the way claimed by the plaintiff ran through unenclosed woodlands, until a period within a few years before the obstruction complained of, and there were no acts of plaintiff or defendant, or of those under whom they respectively hold, proven, which were sufficient to give an adverse character to the use of the way.
    9. Because the evidence did not establish any certain definite way, but a road changed and turned at the mere pleasure of the owners of the land over which it ran, at one time in one place, at another time in another place, as the clearings or fields were changed, and, therefore, no right could be presumed from use.
    Inglis, Dargan, for the motion,
    cited 2 McC. 445 ; Chev. 1; I Sp. 17; 3 Rich. 85; 2 Rich. 136; 1 Bail. 56, 341; 1 Rich. 60; 2 Pick. 51; 7 Mete. 33; 3 Brev. 85; 1 McM. 44; 2 Bl. Com. 35, note 28; 3 Kent, 449; 4 McC. 96; 2 Hilliard, 15, 31, 75; Cruise Dig. Title 23, § 88, Title 24, § 24, 30, Title 28, ch. 3, § 4, 5; Bacon Abr. Extinguishment, A; 2 Hill, 642; 2 Chit. PL 808, note z; 8 T. R. 50; 2 Saund. on PI. & Ev. 949; 2 Saund. R. 113, note 1; Saund. on PI. & Ev. 113,920; 2 Stark. Ev. 378, 380 ; 17 Pick. 162, 164; 3 McC. 31; Dud. 92.
    Mclver, Harllee, contra,
    cited 2 Hill, 644; Gale & W. on Easem. 253, 303; Carth. 241; Ang. on Water Cour. 58, 68 ; II Conn. R. 311; 1 Chit. PL 372, 142, 373 note; 1 Wm. BL 840; 1 Salk. 363; Cro. Eliz. 336; 1 Bay, 490 ; 2 Mill, 371; 2 East, 497; 23 Eng. C. L. R. 59 ; Chev. 238; 6 Eng. C. L. R. 308; 3 East, 294; 2 Hill, 387; Com. Dig. Suspension, A. & B; Saund. on Pl. & Ev. 918, 568; 1 Saund. R. 346; Bul. N. P. 76; Com. Dig. Pleader, 6, 39 ; 2 Tidd, 897, 869; 1 East, 377; 1 B. & P. 371; 1 McM. 329; 3 Rich. 85; 2 Rich. 136.
   The opinion of the Court was delivered by

Evans, J.

If I were to undertake to define what is a private way, and wherein it differs from those neighborhood roads, which are called private paths in the old Acts of Assembly, I should but repeat what has been said in the cases heretofore decided. The substance of these decisions is set out in the charge of the circuit Judge as reported to this Court. See Sims vs. Davis, Chev. 1; Hogg vs. Gill, 1 McM. 329; Nash vs. Peden, 1 Sp. 17; Prince vs. Wilbourn, 1 Rich 58; State vs. Mobley, 1 McM. 47; State vs. Sartor, 2 Strob. 60. On the grounds which relate to these questions, this Court does not perceive any error, of law, in the charge of the circuit Judge to the jury. As to the facts, I do not consider there was a shadow of evidence to give this road a public character. Beyond Pearce’s house, there was no evidence to establish either a public or a private way. If any was established, it was a private way from the plaintiff's house to the Marion road. The evidence on this point was certainly not so full and conclusive as I would have desired; but the subject is one about which full and reliable evidence can seldom be attained. Even in transactions of recent date, the memory of man is often fallacious, and is much more so in relation to what was done or said at times long since passed. In this case, there was evidence to establish the way, and as, with proper instructions on the law, the jury have found for the plaintiff, this Court will not disturb the verdict.

As to the fifth ground, which objects to the amendment of the verdict, I have no other remark to make but this, that it is every day’s practice, and I do not see how justice can be properly administered, unless informal and erroneous verdicts can be corrected, so as to make them conform to the law and consistent with the intention of the jury. Nor do I see any reason for the interference of this Court on the sixth ground. The declaration sets out the termini of the road; and the verdict establishes the plaintiff’s right of way from one terminus to the other, that is, from the plaintiff’s house to the public road, and this is all that the authorities require. Indeed, I do not see how there could be any greater certainty, without annexing a plat, which I have never known done in these actions, which are for damages alone.

The second, third and fourth grounds require a more full examination. The second ground alleges that, even if the right of way formerly existed, it had been extinguished, when John McClenaghan purchased Pearce’s land at the sale by the sheriff. If the sheriff’s deed had conveyed the land in fee simple, without the trusts, there is no doubt the way would have been extinguished, according to all the authorities. The essential ingredient of a right of way would be wanting; it would not be a right of way over another’s land, but over his own land. The minor right would be merged in the greater. It would seem, from the authorities and the reason of the rule, that, in general, this can only be where the fee simple of both tenements are united. If McClenaghan had leased Pearce’s land for a year or years, this would not be an extinguishment, but only a suspension during the lease. So also, if the owner of the servient tenement shall buy a life estate in the dominant tenement, this would not impair the rights of those in remainder. On the termination of the life estate, the remainderman would take the estate with all the appurtenances and easements originally attached to it. See 2 Hilliard, 3; 3 Kent, 449 ; Woolrych on Ways, 4 Law Lib. 70. This makes it necessary to enquire what estate McClenaghan took under the sheriff’s deed. The trusts declared, are for Mrs. Pearce for life, and after her death to her children. On the death of Mrs. Pearce, the statute of uses would execute the use in her children without any conveyance from the trustee. The effect of the deed was to convey to McClenaghan an estate during the life of Mrs. Pearce, with a remainder in fee to her children. It is immaterial whether the statute executes the use at the date of the deed, as some have supposed, or on the death of Mrs. Pearce. In either case the effect would be the same.— McClenaghan’s estate would be only for the life of Mrs. Pearce, and having only a life estate, the way would not be extinguished. But it may be said that the way, although not extinguished, was suspended, and no action will lie during the suspension. In the application of legal principles, we must have regard to the reason of them. It is clear the intention of the deed was, that Mrs. Pearce should have the occupation of the land: the way was as essential to her and her husband after as before the sale. McClenaghan, although legally the owner, as to the use and enjoyment was only nominally the owner. Both extin-guishment and suspension are but implications of law, which take away the easement as no longer necessary to the enjoyment of the estate. The easement was as necessary afterwards as before the sale, and the reason for suspension did not exist.

The third and fourth grounds relate to the pleadings and evidence. The first count in the declaration states that the plaintiff was “ seized and possessed of a certain piece of land with the appurtenances and easements thereunto belonging,” &c. “ and, by reason thereof,” was entitled to the way. Now the plaintiff was not seized in the strict legal sense of that word; he had only a possession in right of his wife. According to the authorities, it was not necessary for the plaintiff to have alleged a seizin in the land — possession alone, if rightful, was sufficient to maintain the action. Saund on Pl. & Ev. 918 ; 1 Com. Dig. 406, B. The objection is, that having so stated his title, he was bound to prove it. This, in general, is true, but in actions for torts, the same strict rule of proof is not required as on contracts. This mode of stating the plaintiff’s title is usual in actions of trespass ; and I have never known the objection prevail, that he did not prove both seizin and possession. The plaintiff proved his possession, and that was all that was necessary to give him a right of action; and this we think sufficient after verdict, even if it could have prevailed in another form, which I am not inclined to think. The second count alleges that the plaintiff hath been, and still is, possessed of a certain piece or parcel of land, with the appurtenances and easements thereunto belonging,” (fee. “ and then had, and still of right ought to have, a certain way,” &c. In this count, the possession of the land and the right to the way are both set out, but it does not connect them by saying, that the rignt of way was by reason of his possession. The objection is, that the right claimed by the pleading is a right in gross, or one personal to the plaintiff, but the right proved on the trial was appurtenant to the land ; and hence there was a variance between the allegata and the pro-bata. It would certainly have been better pleading and more in conformity with the usual precedents to have stated the plaintiff’s right of way to have been by reason of the possession. This is a motion for a new trial. After verdict, the Court will look into the pleadings, and if a cause of action is set out in an intelligible form, although not with technical accuracy, the verdict will be sustained. We think this has been done. The words, “ by reason thereof” are omitted, but the clear meaning is the same as if these words had been used. If the plaintiff had been suing for a right in gross, it would have been wholly unnecessary to have alleged any possession.

The motion for a new trial is, therefore, dismissed.

O’Neall, Wardlaw, Frost and Whitner, JJ. concurred.

Withers, J. did not hear the argument.

Motion dismissed.  