
    
      The State v. John Sartor.
    
    Under an indictment for obstructing a highway, there is no absolute, legal neT cessity for a survey, if the case can be made sufficiently plain to be understood without a plat.
    Although the indictment for obstructing a highway be at common law, the statute as to roads may be referred to, not to give character to die offence, or as evidence, but to show what ate public ways. None save p-ivate Acts are to be given im, evidence.
    
    Where the evidence was sufficient to satisfy the jury, the Court will not, unless there was manifest error, interfere with the finding.
    
      A road which has been in general use by all persons, for public purposes', for an uninterrupted period of twenty years or more, is a highway, for obstructing which, an indictment will lie.
    
      Tried before Mr. Justice Evans, at Union, Spring Term, 1847.
    The Presiding Judge. This was an indictment against the defendant for obstructing a highway. There are two public roads leading from Union Court House: one to Hamilton’s Ford, on Tyger river, the other to Cook’s bridge, on the same river. Connecting these two roads, at a point where they are about two or three miles apart, there is a road used by all the neighborhood, which has existed for more than 50- years. It is, and has been, as far back as the witnesses remembered, used as a passage from one road to the other, and by those living in the vicinity, to go to mill, muster and church. Where this road crosses Tinker creek, the defendant has lately obstructed it by brush in and on one side of the creek, and by fen- • ring it for 3 or 400 yards on the other; so that no one can now pass, except by ascending a very steep hill, and along a lane not more than six feet wide in some places, which he has left on the line between him and Jas. McJunkin, who is the prosecutor. This road, on both sides of Tinker creek, passes over the land of various persons, several of whom have changed the road when it suited their convenience, and without objection ; but in every case, another road as good, and not farther, has been made in lieu of the part obstructed; and in one instance the road was changed so as to run on the dividing line between two proprietors, each giving 7 feet of his land for the road. On the west side of the creek, the road, many years ago, diverged to the right of where it ran when obstructed, and intersected the Cook’s bridge road 150 yards from where it now does. This was done by the prosecutor, or those who owned the land. Two of defendant’s witnesses, his father and brother, said it was done by the prosecutor, who, when he cleared up to his line, made his fence across the road, without making any road around. It remained in this state two or three years, without any road leading down to the ford on the creek, and wagons had to go a mile or more below to cross, until 1841, when the road now contended for was opened on the defendant’s land to old Major McJunkin’s house, and from thence to the Cook’s bridge road. But several witnesses on the other side said there had always been a road where it was when obstructed, at least for the last 15 or 20 years, and some said for 25 or 30 years. I thought, from the evidence of Dr. Young, it was likely that, after crossing Tinker creek, there were two roads, one leading through McJunkin’s field, which, in process of time, by enlarging the field, has been totally obstructed, and travelling altogether diverted into the other. It appeared, from the evidence, that the road had been occasionally worked on by the neighbors. One witness, Abram McJunkin, said the neighbors worked on the ford, and for a mile on this side; Dr. Young said he had, when requested, sent his hands to work on it; but this had not been often done, nor was the work extensive, though sufficient for the use made of the road. There was no pre-tence the road had been laid out by any public authority, or that it was under the supervision of the commissioners of roads. One of the-witnesses said he thought one-third of the whole distance of the road had, at various times, been changed, but that none had been made at the ford, or about it, before the obstruction by the defendant. Many years ago, the land at the ford belonged to the McJunkin family; during this time, some of the family made bricks in the road. This fact was relied on as proof that it was not then considered a public road.
    I charged the jury that it was not essential to the existence of a public road, that it should be laid out by public authority, or worked on under the orders of a commissioner of roads. These thoroughfares in common use, connecting the great public roads, used by a neighborhood, and kept in repair by those who use them, were recognized by the old Acts of the Legislature. They might be laid out like other highways, or they might exist by prescription. In cases of prescription, (and this road, if public, was one by prescription,) the use must be general, and of more than 20 years’ continuance. That, as in the case of a private way, the mere use of a road over woodland would not give a right. The use must be adverse, accompanied by acts which showed the use was claimed as a right, and not by the permission of the owner — such as working on it and keeping it in repair. The nature of the use, I also told the jury, might be indicated by the acts of the owner of the soil, as if, instead of shutting it up when he cleared the land, he had made a lane along it, or if he closed it up by making another road as good, as a substitute. In the course of the argument, the defendant’s counsel characterized it as a floating road. On this point, I told the jury that if, during the whole period of 20 years, which was necessary for a use to ripen into a right, the owner or owners of the soil had changed it at their pleasure, without regard to any supposed public right, such a use ought to be regarded as merely permissive. But where the right was fully established by 20 years’ prescriptive use, these slight changes, which did not materially affect the identity of the way, ought not to affect the right, especially if accompanied with acts which showed a recognition of the public right, such as opening another equally good and convenient way. The character of this road, from these directions, as to the law and the facts of the case, it was left to the jury to decide. The defendant was found guilty.
    The defendant appealed, and moved the Court of Appeals for a new trial, on the following grounds:
    1st. Because the road was not a public road, and was not, in any way, under the superintendence or jurisdiction of the commissioners of the roads, or any public authority, being a. mere private way, for which an indictment would not lie.
    2d. Because the road had never been worked on in any way or manner differing from the ordinary private ways in and about every man’s plantation in the country, and had been changed at the will and pleasure of those owning the land over which it had run.
    3d. Because there was no sufficient evidence of the use of the road by the public, to authorize the presumption of a grant or a dedication to public use, by the public.
    4th. Because his Honor said to the jury, that they might presume that the public had acquired a right to the use of the road, from the evidence offered; whereas, it is submitted, on the part of the defendant, that there was no sufficient evidence to warrant any such presumption.
    5th. Because there should have been a survey and plat, showing what part of the road now runs over the old bed, and where it had been changed, as it was a mere floating road or path, having run here and there and every where, with no fixed location.
    6th. Because the indictment was at common law, as was stated by the counsel for the State, and appeared from the indictment; and still the Solicitor, in his argument, read the statute as to our roads, and insisted on the same, and his Honor pursued the same course in his charge to the jury; whereas, it is submitted, the statute ought not to have been referred to in the argument, nor id his Honor’s charge, as the statute had not been given in evidence, and could not apply, as the indictment was at common law.
    A. W. ThomsoN, for the motion, cited 5 Bac. Abr. 48, and 3 Jacob’s Law Die. 401 — title, Indictment; Act of 1721, 9 Stat. Lar. 55, sec. 22, and Act of 1741, 9 Stat. Lar. 127 and 128, sec. 5 and 6, and Act of 1817, 9 Stat. Lar. 492, sec. 21, and same Act, 493, sec. 26, and 491, sec. 18; Act of 1768, 9 Stat. Lar. 225, sec. 1; Act of 1825, 9 Stat. Lar. 559, sec. 5; Act of 1830, 9 Stat. Lar. 293, sec. 4; Act of 1788, 9 Stat. Lar. 311, sec. 13; Act of 1796, 9 Stat. Lar. 372, sec. 50; Act of 1797, 9 Stat. Lar. 379, sec. 33; Act of 1825, 9 Stat. Lar. 566, sec. 31; 5 Call’s Rep. 548; 3 Curtis’ Dig. 363, sec. 370; State v. Gregg, 2 Hill, 378; Smith v. Kinard, 2 Hill, 644 (note); 1 Russell on Crimes, 60; Nash v. Peden, 1 Spears, 17; 3 Kent’s Com. 19; 1 Camp. Ecp in Roscoe’s Crim. Ev. 451 and 452; Harrington v. Contirs of Roads, 2 McC. 400; State v. Delesseline, 1 McCord, 52 and 64; 2 Hilliard on Real Property, 35 ; Arch. Cr. Ev. 607; Rex v. Leah, (inhabitants of) 5 Bar. and A. 469; 3 Pick. 408; State v. Randal, 1 Strob. 410; 2 Haywood, 301.
    DawkiNS, Solicitor, contra,
    
    cited Act of 1741 — Ex parte Withers, 3 Brev. 83; State v. Mobley, 1 McMul. 44; Cuth-bert v. Lawton, 3 McC. 194.
   O’Neall, J.

delivered the opinion of the Court.

Upon the 5th ground of. appeal, it may be remarked, that there is no absolute legal necessity for a survey. It is only proof which the parties may or may not resort to, as they think proper. If the case can be made sufficiently plain to be understood, without a plat, there is no use in a survey. On this occasion that seems to have been done. As to the 6th ground, it cannot be necessary to do more than to remark that the offence charged against the defendant is not created by statute: it exists at common law. The statute law was referred to, not to give character to the offence, but to show what were public ways. There was no more necessity to notice the statutes, in the indictment, than there would have been to have cited the Book, Chapter and Section in Haw-kin’s Pleas of the Crown, in which is described Highways. So too, as the law of the land, the statutes could be referred to by the Solicitor and the Judge, without being given in evidence. None save private Acts are to be given in evidence. The third and part of the second ground depend upon the evidence, and as that satisfied the jury, the Court will not, imless there was manifest error, interfere with their finding. The residue of the grounds challenge the correctness of the ruling of the Judge below, that this road, connecting, as it does, two public highways, if it had been used for twenty years, by all persons having occasion to pass over it, for pub-Mg purposes, and had been Kept in repair by those interested in it, was a public road, for the obstruction of which an indictment for a nuisance would lie. The main objection to this ruling, as I understand the argument of the defendant’s counsel, is, that a public way cannot arise by prescription. There is certainly no ground in law on which this proposition can be maintained. It is true the public right arising from user does not arise from adverse use. It is the presumption, from lapse of time, that the owners of the land over which such a road runs, have dedicated the way to the public use. One of the cases on which the zealous counsel for the defendant relied, may be cited as an illustration of this principle. The Commonwealth v. Jameshow, 3 Pick. 409, was an indictment for obstructing a town way. It seems that, by a statute of Massachusetts, town ways can only be treated as highways when laid out by the authority of the selectmen of the town. In that case the way rested on prescription, and was therefore held to be private. Bid in that very case Judge Morton took occasion to state the principle, to disprove which, it was cited. He said, “ways of various kinds may be proved, not only by prescription, but by a continued use of them for a period much within the memory of man. And it cannot be doubted that public highways may be shown, by evidence of a user, as well as by the record of their laying out.” In 2d Smith’s Leading Cases, 136, the principle is stated, in reference to the mode in which a highway is created, in the following words; — “ except where this is done by the express enactment of the Legislature, it derives its existence from a dedication to the public, by the owner of the land over which the highway extends, of a right of passage over it; and this dedication, though it be not made in express terms, as it indeed seldom is, may and will be -presumed, from an uninterrupted use by the public of the right ' of way claimed.” These authorities, without adding others, which could be easily done, are amply sufficient to show that a public way may arise by prescription, which is but another name for the presumption of a grant to the State, by dedication. Three classes of ways exist in South Carolina: 1st, Highways, such as the great market and cross roads kept in repair by public authority; 2d, Private paths, as they are termed in our Acts of the Legislature, which are used for public purposes, diverging from or crossing the highways, and are free and common to all people, and are not by law to be kept in repair by the whole body of the people, but only such as may be interested in them, or the keeping in repair of which is entirely voluntary ; 3d, Private ways. The two first, highways and private paths, may arise either from express enactment, or by being laid out by some lawful authority, or by a user for twenty years or more. Many of the great roads in South Carolina began in the Judian trails, or paths, and I think it would be difficult to find Acts of the Legislature, or orders of the County Courts, or Commissioners of the Roads, directing them to be laid out. The true test is in the general use, by all persons, for.public purposes, for an uninterrupted period of twenty years or more. In one respect, I think, there is a great difference as to the evidence from which a dedication to public use may be presumed, and prescription for a private way. In the latter no such right can arise in woodland, without some unequivocal act of adverse right, such as cutting out the road, or repairing it. The reason of that is obvious — a private way is an easement in favor of another, in derogation of the rights of the owner ; and hence is not to arise without clear, unequivocal proof of such facts as will give the right from the owner to the claimant. In the case of a public way, every man holds his land subject to the right of the State to lay out roads over it for public purposes. This being so, if the way be found to exist long enough to presume a dedication, the right to regard it as public, if its other characteristics be found, is made out. It is very true, that if a road be worked upon and kept in repair by the Commissioners, it is satisfactory evidence that it is a highway: but if it be not worked on by them, it does not follow that it'may not still be considered a public road. The case of the State v. Mobley, 1 McMull. 44, is an instance : there the road was not worked by the Commissioners, yet as it was laid out by the public authority, and had been an open road since ’98, some persons voluntarily working on it, and it was used by the neighborhood, it was held to be a public road, for the obstruction of which an indict-' ment would lie. Unless this was the law, bad indeed would be the condition of neighborhoods and communities to whose convenience these ancient ways are so essential. Any ill-natured man could obstruct such a way, and the matter could not be redressed. For an action at the instance of an individual or individuals will not lie. The public character of the way destroys the private action. The advantage of the proceeding by indictment is obvious. The public right is tried and the nuisance removed by one case, in which the defendant has all the means of defence which he could have in a private action. The only thing he can complain of is, that he is not permitted the enjoyment of the selfish advantage of occupying his domain to the great detriment of the people, with precious little profit to himself.

The motion is dismissed.

Richardson, J. Evans, J. Frost, J. and Withers, J. concurred.

Wardlaw, J. concurred in the result.

Motion dismissed.  