
    James Cuthbert vs. Winborn Lawton.
    Where away had been uninterruptedly used from 1769 to 1800, but after that period had not been used much, and had heen obstructed three or four times in different years, and some wide deviations made from its, original course, the court held the right not destroyed, having been per* fected by twenty years uninterrupted enjoyment.
    But if it had only began to accrue since 1800, it seems the obstruction of one year only in twenty, would prevent its legal consummation; but after / twenty years uninterrupted use, it could only be defeated by an adverseN \ and continued obstruction for five years.
    Tried before Mr. Justice Waties, at Charleston, who made the following report:
    “There were two distinct issues, between these parties, tried by consent at the same time. One in assumpsit on an award, and the other in trespass to try the general right to a private way which the plaintiff claimed through the land of the defendant by prescription. I recommended to the jury to give their attention chiefly to the second issue, as a verdict for the plaintiff on the award would leave the extent of the right of way still open to future controversy; because the declaration enumerated specially the uses claimed, without including the privilege of driving cattle on it, which was the only real subject of dispute between the parties. In considering the general right of way, 1 was of opinion, that this had been fully established by the evidence of Mrs. Rivers, W. Royal, Gen. Cuthbert and,Wm. Lawton, who proved that it had been enjoyed by the former owners of the land now held by the plaintiff as an ancient and uninterrupted right, from the ¡¡ect? 
      5769 to 180Ó. It appeared, indeed, that since that period the road had not been much used; that it had been obstructed three or four times in. different years, and that there had been some wide deviations from its original course; but I thought that these would not affect the right, if it had been before perfected by twenty years uninterrupted enjoyment. If it had only began to accrue since the j’ear 1800, the obstruction of one year only in twenty would prevent its legal consummation; buy after twenty years of uninterrupted use, it could only be defeated by an adverse and continued obstruction for five yearsjwhich was not proved in this case. I referred the jury, for then’ guide, to the law on the subject as laid down by the Constitutional Court in the case of Lawton and Rivers, (2 M‘Cord 451,) and which, I added, was recognized as the law thirty years ago. They gave a verdict for the defendant on the award, and on the second issue they found for the plaintiff an unqualified right of way.” From this verdict the defendant moved for a new trial.
    
      M‘ Call and Toomer for the motion.
    I, E. Holmes and Waring, contra.
   Nott, J.

The court concur in opinion with the court below. And the evidence having been submitted to the jury with a correct exposition of the law, there does not- appear to be any good ground for a new-.lrial.  