
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1802.
    Commissioners of Streets in Georgetown v. Taylor.
    Commissioners of streets, appointed under án ac¿ ó’f the legislature,'can»' not maintain trespass to try title for lands alleged to have been dedicated to the use of the inhabitants as streets, and which have been inclosed by persons claiming under the supposed' donor. The proper remedy for obstructing a highway is by indictment; and if a private' Way is claimed, the action should have been case. [vide 2 Bay, 282,’ and 288,- S. C.]
    This was an action of trespass to try title’, brought to recover the possession of certain lands in Georgetown, and damages for the mesne profits; and was tried before Grimke, J., in Georgetown district. It appeared at the trial, that in January, 1734, Elisha Screven and wife conveyed the greater part of the land on which Georgetown now stands, to certain trustees, in trust, to be laid out in lots for the then, and future, inhabitants of Georgetown. John Cleland subsequently interposed a claim to the land, in right of his wife, but afterwards compromised his claim with Screven: and in pursuance of this compromise, Cleland and wife, Screven and wife, and the trustees, in June, 1737, executed an indenture tripartite, by which Cleland and wife confirmed the former conveyance made by Screven and wife ; and eighty-eight other lots were added to the town, and represented in a plan thereof annexed to the indenture, and the title of these lots vested in Cle* land, and his heirs ; but there' was a covenant in the deed, that, in to preserve the health of Georgetown, there should be no bouses erected on the ends or vacancies of the streets, but that they should be kept open according to the model or plan of George-j.ownj annexe¿ t0 the indenture. The whole of these eighty-eight lots were afterwards inclosed, the streets represented in the plan, as well as the squares between them, being included within the inclosure ; and a part of them was in the possession of the defendant, who deduced a regular title from John CJeland. The plaintiffs, who were appointed commissioners of streets in Georgetown, under the act of 1791, (1 Faust. 87,) claimed so much of the land in possession of the defendant as had been laid off for streets in the plan annexed to the indenture of 1737. The jury found for the plaintiffs, and the' defendant now moved to set aside the verdict, and for a new trial.
    Piungi/e, attorney general, for the defendant.
    The form of the present action has been substituted in lieu of the old action of ejectment, and combines the action for mesne profits. It was intended to give the plaintiff every benefit he could derive from the action of ejectment, and trespass to recover- the mesne profits, in a single action, Which might be prosecuted in a simple' and direct form, without any fictitious proceedings,- or circuity ; and not to deprive him, or the defendant, of any substantial advantage which might be taken in the old form of action. The rule' of law applicable to ejectment, which requires that the plaintiff must recover upon the strength of his own tille, and not on the weakness of his adversary’s, is equally applicable in the present form of action. The plaintiff must shew a right to the freehold, and a good and subsisting title in himself, at the time the suit is brought. Or, con. sidering the action as one of a mixed nature, and proceeding on the ground of possession, to recover that, and the mesne profits, there must be proóf of an actual ouster. The plaintiffs in this case could prove no right of freehold, or right of possession, in the streets, claimed by them, nor that they were actually expelled from the possession of them. If we consider the interest which they pretend to claim in the land, in the light of an ejectment, then it must appear that they have mistaken their remedy; for the injury sustained by depriving them of the enjoyment of an easement, constitutes a nuisance, and is punishable by indictment. It is not pretended that they have received any direct injury by the incloaure of the streets : and whether they have or not, no action could be supported for it in this form. See 4 Vin. Abr. Tit.- Chimin.
    
      The streets in question never belonged to any township established by law; Where townships have been laid out by legislative authority, the streets and public squares therein contained, are public property ; at least, Preserved for public use, and cannot be exclusively appropriated. But that part of Georgetown never was so laid out. The establishment of a town there, was by private stipulation. It certainly binds all persons, parties, or privies, thereto, but not strangers. But tho streets in question, and the eighty-eight lots adjoining, were no part of the original trust land, or included in the deed of confirmation. Cleland never parted with these, although they are included in the plan or model of tha town, annexed to his deed of confirmation ; for the intent of the deed was only to confirm the original trust deed of Screven, which did not include this land. The lots and streets, it is true, were laid out, and he might dispose of them on what conditions he should think proper ; but it cannot be supposed he ever intended to make them subservient to the purposes of the streets and lots of the old town. These streets in the new town, if they are to be considered as streets at all, can only be considered as appendant, and appurtenant, to the eighty-eight lots, and appropriated as private passages for the enjoyment of those lots. If the lots had been sold out to different persons, it would be necessary to keep open these ways, in order to afford ingress and egress to and from them : but since the whole of them belong to one person, it is not necessary to keep them open ; and being consolidated with the lots, and converted into a field for tillage, they have become extinct. The streets next the old town were intended to enlarge the common of that town, in consideration of the privilege allowed the defendant of making use of his streets in connection with the streets of the old town. But having relinquished this privilege, he has a right to resume dominion over the common so enlarged. Bac. Abr. Common. D.
    But admitting that these streets belong to the town, and that they ought to be kept open for the use of passengers, what right can the plaintiffs have to maintain this action? They have no exclusive right to the land to entitle them to recover the possession in this action. Where lauds are dedicated to public uses, the soil belongs either to the public, or to the proprietors of the next adjoining lands. In the case of public, or private ways, it belongs to the proprietors of the land next adjoining. 2 Str. 1004. 4 Vin. Abr, Chimin. 2 Burn’s Just. 401. 2 Inst. 705.
    The mere laying out or location of a street, or highway, will not make it such ; but i.t tnust be used as such. If it be dedicated to the public as a way, and be used as such, no person or persons can claim any other right to the land, or any other privilege therein, than a right of passage. The absolute right of property in the soil belongs to the former proprietor.
    An action of ejectment lies not for a right of passage. This right is known by the common law as an easement. It is denomi. nated servitude, by .the civil law. 1 Burr. 143. For any disturbance of this right an action lies for damages, as for a nuisance, if it be a private way; and if it be a public highway, the remedy is by indictment, as for a common nuisance. 1 Hawk. P. C. 201, c. 76. To support such an indictment, it must appear that the way was used as a public way. Esp. Dig. 653.
    The defendant never used the lots as town lots, nor were they ever so used by those under whom he claims, and, therefore, no person ever used the streets, or ever had aright of passage therein, as such. If the lots had ever been used as town lots, it might be contended that the streets were used as ways ; especially if the lets had been disposed of to different persons. The lots were never used as such; nor the streets ; for it appeared in evidence, that in 1763, the whole land in dispute was enclosed with a bank, on which cedar trees were planted, and growing, and that it was .also fenced. The fence was afterwards destroyed in the casualties of the wav ; but the bank remains. These circumstances furnish a contemporaneous exposition of the deed of confirmation. The acquiescence of the public is another strong circumstance to shew, that these lots and streets were not considered as belonging to the town. The object of the contract seems to have been to keep the .ends of the streets open for the free admission of air. This object is not defeated by the ground’s being inclosed as a plantation. The act of 1791, respecting ' Georgetown, cannot, by ex post facto operation, alter the case. It cannot affect the private contracts of the parties to the deeds, or deprive a citizen of his right to land he would otherwise have. The plaintiffs are neither parties nor privies to the deed. They are merely trustees for the citizens of the town. They are empowered by act of assembly to remove nuisances in. the town ; but this can give them no right to bring an action to recover land in dispute between the inhabitants of the town and an individual, where the title is in controversy.
    Right of way may arise either by grant, by reservation, or by prescription. The right in this case was reserved by deed : but it never was contemplated with a view to the public interest. The private benefit of the parties was alone in view. On the ground of posses•siofl, therefore, the defendant has a right to the possession by the .act of limitations, for the adverse claimants cannot be considered as being protected from the operation of that act, as claiming in behalf of the public. The right .of the public cannot be taken no. •tice of in this suit. The plaintiffs claim as for themselves, and not for the public. The presiding judge delivered an opinion to the jury, in contradiction t© the doctrine I have laid down, and contended for ; and on the ground of misdirection, therefore, and because the verdict is contrary to law, and the evidence given, Í move for a new trial.
    
      E contra.
    
    It was argued by Simons, and Drayton, for the plaintiffs, that an indictment would not afford the inhabitants of ¿Georgetown a sufficient remedy against the defendant, who, in defending himself against such a prosecution, would produce various .deeds, and claim an exclusive right to the land, which would draw .the title into question, and would be, in fact, trying the title on an indictment, which cannot properly be done in a criminal prosecution. The defendant ought to have demurred to the declaration if .he thought it improper. The deed of confirmation, by reference .to the plan annexed, goes fully to convey the streets in question, or .•to declare them public streets. The lots ought to have been built on, according to the intention of the contract, and the streets kept open. A covenant to this effect is fairly to be collected from the deed.
    The plaintiffs .are trustees for the town, and have right to recover possession ,in behalf of themselves, -and all others. They must be considered as tenants in common, with the other citizens of the State, and entitled to sue alone, and may maintain the suit .alone, unless it be pleaded in abatement. The defendant, though .also a tenant in common, is a wrong doer, and may be sued. Ejectment lies by the owner of the soil, for lands on a highway, -for they are entitled to all above and below. 1 Burr. 136. 2 Str. ,1004. Co. Litt. 56. 1 Burr. 143.
   By the court,

all the judges present.

If a motion had been -made by the defendant, at the trial of this cause, for a nonsuit, we .think he would have been entitled to it, on the ground, that the evidence produced did not support the declaration, or shew any cause of action which the plaintiffs had, to entitle them to recover. If •the deeds cited did not convey the land in dispute, as has been contended, the plaintiffs can derive no right in virtue "of these deeds. If the deeds did convey the land, and the streets in question were intended, and ought to have been kept, as public ways, the plaintiffs, as commissioners of those streets, have no right to maintain this action tor any disturbance or obstruction to the right of passage therein. The right of using a highway is a right common to all mcn, and the defendant had the same right that the plaintiffs had : and neither can sue the other for disturbing this right, for, as to that, they may be considered as tenants in common. And if one man might bring an action, another might, and there would be numberless suits for the same cause. An indictment would have been proper. There is no other way of redressing a public injury of this sort. If these streets are to be considered as private ways, and the plaintiffs were entitled to an action to recover damages for a disturbance of their right to use and enjoy the same, yet this is not the proper action, but the remedy is by action on the ca3e.

But as the plaintiffs have obtained a verdict, which we think is not well founded in law, and supported by proper evidence, the same must be set aside, aud a new trial ordered.  