
    The State v. Elias Gregg.
    
      Before Mr. Justice Evans, at Darlington, Spring Term, 1834.
    by”'prescription w,’11 „»6 of ¡t by thoap"b-ifc for twenty wm™ tokeop « 4 furnishes ^safe “d whether it is yff pn"' 
    
    This was an indictment for a nuisance in. obstructing a road leading from the public road to a Methodist church», The lot on which this church is built is at the distance of about two hundred yards ox more trom the public road. All the immediately in front* or directly between the church and the public road, are enclosed. Prior to the year 1793 there had been an old public road passing near to the church, but no part of it was located where the obstructed road passes. There was a private residence still beyond the church, called Rocky Mount, from which various paths and roads led to the public road, and one of them passed near to the public road. All of these had been shut up for many years, and the place is not now, nor has it been, tenanted for several years. One James House formerly lived where defendant does. He had purchased the land, but had taken no title, although he resided there four or five years. House sold to Gregg, and the title was made to Gregg by Mr. M’Cullough, from whom House bought. The road in controversy was opened by House in 1813. It was the access to his house, and still beyond, to a tan-yard owned by House. It was also the access to Rocky Mount. House owned the land where the church stands. In the year 1816, James and William House gave the lot for the church, which was built in that year. Since then the road has been continually used by all who frequented the church, until its obstruction by the defendant in 1830 or 1831. The road existed and was open at the time, defendant bought from House in 1817.
    His Honor charged the jury that the only question was* whether this was a public road. Public roads were such as were laid out by lawful authority, or such as had been used by the public for twenty years or upwards.. It was not essential to a public highway that it should be worked on and repaired by the public; but that all roads, whether leading to market towns,villages, pub-lie landings or churches, to which the community at large had, acquired a prescriptive right by use, were entitled to the pro-, tection of a public highway, and obstructions of them punishable by indictment. It was submitted tQ the jury, to decide on the evidence, whether the public had acquired a right of way along the road which the defendant had obstructed. They found the defendant guilty.
    The defendant appealed on the grounds :
    1. Because there was no evidence that the road alledged to be obstructed was a public road.
    2. Because there was no right of way proved, nor any such dedication of the road in question to the public use, as to give the public such a right that an indictment would lie for obstruct, ing it. '
    On the law of the case the presiding judge reported as fob-lows :
    
      “ Since the trial, I have reviewed the facts and examined the law of the case. If the question be solely one of prescription, then it is clear the verdict cannot be sustained, as this road was not used by the public until since the church was built, which was in 1816, a period of only about 16 years, up to the time when the defendant obstructed it.
    If the verdict can be supported, it must be on the ground that this road was dedicated by House to the public; and in such caso a use for twenty years (the time of prescription) is not necessary. Such a dictum of Lord Kenyon is reported in a note to the case of Daniel v. North, 11 East, 375 ; but it is to be remarked that it is a mere dictum. The use in that case was fifty years.. So also in the case of Rex v. Lloyd, 1 Camp, bell, p. 260, the passage which had been obstructed had been open as far back as could be remembered. In the 3 vol. of Chitty’s Criminal Law, the principle is broadly laid down, that if one throws open a passage, without any visible mark of exclusion or prohibition to persons using it, he will after six years be considered as having dedicated- it to the public, and not afterwards be allowed to close it. - But the only -authority referred to is the case in 11 East, above mentioned. How far this authority and the facts of this ease will sustain the verdict, it is for the .Appeal Court to debido. In my charge to the jury, I intimated clearly the opinion that the public could acquire a prescriptive right of way to a church. I find, however, the principle laid down, both in Chitty, vol. 3, 566, and in 2 Hawk, c. 76, that a path to a parish church, which terminates there, being intended for the use of a particular class of people, is not a highway,, and that any nuisance affecting it can bo redressed by action on the case only, which any one having a right to use it may maintain. This is on the principle- that the parish is a corporation, which may maintain a civil action for the injury. In this case it was said the church -was not incorporated, but the title was to certain persons as trustees for the Methodist Episcopal church.”
    
      
      McIver, for the motion.
    
      Wethers, Sol. contra.
    
      
      
         See 2 Bay, 282; 1 N. & McC. 140; 2 McC, 445, 3 McC. 131, 194; 1 Bail. 56, 341.
    
   O’Neall, J.

We agree with the judge below, that this ver-diet cannot be sustained on the ground of prescription. Twenty years have not elapsed since the church was erected to which the road leads'; a less time has never been held in this State to be sufficient to establish that immemorial usage which would give either a public or a private right of way.

The road in dispute cannot be regarded as a highway. A way to a church, it is agreed by all the English law writers, is private and not public. In the case of Smith v. Kinard, the attempt was made, with the concurrence of the whole Court, to establish some simple and definite test, by which the Court and the citizens of the country could at a glance distinguish between a public and a private way. It was accordingly stated “ that the liability to keep or not to keep a road in repair, furnishes a certain and safe rule to determine whether it is public or private.” In the application of this rule, it was admitted in that case that exceptions might be found necessary to be made. This case, however, is not an exception ; for if any exception can exist, it must be where the public have a right of way by 'prescription.

It is not pretended’that there is any liability on the inhabitants to keep this road in repair.

The motion for a new trial is granted

Johnson, J. concurred.

Harper, J. absent. 
      
       Not reported.
     