
    Anthony F. Golding vs. John D. Williams.
    To acquire a right of way over land of another by use, the way must he definite, and the use adverse.
    In trespass guare clausum fregit, insulting words used by the defendant to the plaintiff’s wife, at the time of the trespass eomplained of, are admissible in evidence, to show the character of the transaction.
    Where the trespass was committed by the defendant in a violent, highhanded manner, though under a belief that he had a legal right of way over the land of the plaintiff, a verdict of five hundred dollars was held not to be excessive.
    BEFORE BUTLER, J,.AT LAURENS, FALL TERM, 1837.
    This was an action of trespass for breaking into plaintiff’s close, with force and arms, against his express prohibition.
    The defendant owned two plantations, distant from each other one and a half or two miles. One of these, (his residence,) was about a half or three-quarters of a mile to the north of plaintiff’s house; the other was a plantation on Mudlick Creek, formerly owned by James A. Williams. In passing from one of his places to the other, the defendant usually went through an open lane by the plaintiff’s house. This was an open way which was afterwards enclosed. There was another way through the plaintiff’s orchard; this was enclosed, and had gates across it. It turned off from the open lane, not far from the plaintiff’s house, and was about half a mile nearer the defendant’s plantation on Mudlick Creek. The neighbors were in the habit of passing through these gates, and the defendant had occasionally gone through that way to his place. The plaintiff and defendant were at variance, and the plaintiff sent word to defendant not to go that way. On one occasion the plaintiff’s wife said to the defendant, as he was going through the gates, that her husband wished him to desist; the defendant replied, “I’ll go if it costs me forty lives — it is my privilege, and I will use it;” and said to Mrs. Golding, "you and your husband are the meanest people I ever lived by — you are a hypocrite, and but for you I would have been on good terms with your husband.” The plaintiff then instructed his overseer to lock the gates, and not to let the defendant pass. The overseer seeing the defendant in the orchard, told him that he could not go through, as his employer had told him to lock the gates. The defendant replied., “I am now inside;” “well, says the overseer, you may go on now.” The defendant replied, “ my wagons are behind, and they must also come through.” The overseer told him they could not, .and locked the gates. The defendant broke the locks and let his wagons (comiug from the Mudlick place,) come through; and this was the trespass for which this action was brought.
    The defendant took two grounds of defence, viz:
    1st. That he had a prescriptive right of way over the plaintiff’s land.
    2d. That if he had not a strict legal right, that he honestly believed he had, which should induce the jury to give nominal damages.
    To establish the first, he showed that Jas. A. Williams had a mill on Mudlick Greek, at the place now owned by the defendant; and that there was a mill path which had been used for twenty years, leading from the mill by the plaintiff’s house into, Chile’s ferry road, (a road leading by the defendant’s house, and crossing Saluda river.) This was a bridle path used by the neighbors in going to mill. The mill had been discontinued for many years, but still the blind path, was kept open until the plaintiff settled his place many years ago. He cleared land and fenced across the path, but persons on horseback would make their way round the fence. As the plaintiff would continue to clear, the pathway would change with the fence. When the plaintiff first commenced clearing, wagons had not passed on this way. Afterwards some few wagons passed round the fence; it was never what could be called a wagon road.
    The plaintiff continued to extend his clearing, until he came to what the witness called the north branch road, about half a mile from where the mill road run. This north branch road was a wagon way from James A. Williams’ mill, to the Chile’s ferry road, and had been cut out by James A. Williams, when he owned the place. When the plaintiff cleared across the road, a man by the name of Floyd owned the place on Mudlick, from whom the defendant bought. Floyd complained to the plaintiff of the road being obstructed by the fence; and said he would pull the fence down to go through on the road. The plaintiff replied he had a better way near his house, (the gate-way;) and that he, Floyd, might go along that. Floyd accordingly availed himself of that parol licénse, and was in the habit of passing through these gates with his wagons. This was not more than six or seven years previous to the trial. The way had not been opened more than eight or ten years — and it was originally opened to go to the plaintiff’s cotton gin. When Floyd sold to Williams, the defendant, he was in the habit of passing this way.
    His Honor charged the jury, that there were but two ways in which a right of way was acquirable over another’s land. One .by necessity, and the other by grant; the right by prescription being founded on the presumption of a grant. Long and uninterrupted use of way, would create .a presumption of a right by grant; but that the manner of the use was important. íf one used a way by permission it could not ripen into a right. The use must be adverse, and such as would show that no one could dispute the exercise of it; and that it must be for some definite way, with an a quo and an ad quum. That the manner in which this mill way had been used, did not indicate that any one claimed a right in it; that it was like many ways through wild forest land used for convenience, without any assertion or supposition of right. The right of the defendant to the original mill way, he thought, could not be maintained. And the nest and last view was, did the defendant have a right, by virtue of the parol license to Floyd, from whom the defendant purchased. He thought not; the license was to Floyd, by parol, and revocable. The plaintiff had revoked it. The defendant could and should have informed himself of his rights before he asserted them with force, and with such force and wantonness as was well calculated to irritate the plaintiff’s feelings, for he was sick at the time of the trespass, and the defendant broke into his close in defiance of his positive prohibition, and his wife’s request. How far the damages should have been mitigated, depended on the circumstances, which were for the consideration of the jury. He told the jury that they should guard themselves against the influence of their feelings, and should look at the case dispassionately, and give 'the defendant all the advantage of his proceeding on a supposition of right. They returned a verdict of five hundred dollars.
    The defendant appealed, and moved for a new trial, on the following grounds, viz: '
    1st. Because the declarations of the defendant’s wife, Mrs. Golding, that she and her husband were meant by the words, “ they were the meanest people he ever lived by,” “ that she was a hypocrite,” &c., were irrelevant and should have been rejected.
    2d. Because his Honor charged the jury that the twenty years use of a way would not give a prescriptive right unless the use was adverse from the commencement.
    8d. Because he charged that the right of the defendant to the original mill way could not be established ; though it was proven that James A. Williams, the person under whom the defendant derived title, used the same for more than twenty years before Floyd purchased the land.
    4th. Because Floyd, from whom the defendant purchased, had a presumptive right of a wagon way, from his house to the Chile’s ferry road, over the north branch road, which was closed by the plaintiff; and by the agreement of the plaintiff, the road where the supposed trespass was committed, was substituted in its place, and the- plaintiff should not be permitted to revoke bis parol agreement, that the present should be used by the defendant, before he opened the north branch way.
    5th. Because, under all the circumstances, supposing the defendant had no legal, right of way, the damages were-excessive.
    
      Irby and Young for motion.
    
      Thomson and Henry, contra.
   Curia, per O’Neall, J.

We are satisfied that the words used by the defendant to the plaintiff’s wife, were properly in evidence. They were in reply to the notice given by her for her husband, that he must desist from the use of the way. They showed his revengeful, malicious disposition, towards the plaintiff, and therefore gave character to the act subsequently done;

The instructions of the Judge to the jury were very proper.

The verdict of the jury upon the facts seems to us to be as we should have found. The defendant’s trespass was a most high-handed and violent one, and for such an act a jury could hardly find any verdict which we should think to be excessive.

The motion is dismissed.  