
    C. G. Capers, v. H. M’Kee.
    The owner, by prescription, of a private way over another’s land, has no right to cut ditches for the improvement of his way, without the consent of the owner of the soil, unless-he has acquired such right ah by a prescriptive use.
    Where a grant is presumed from the use, then, the use must define the extent of what is presumed to have been granted.
    Tried before Mr. Justice Butler, at Gillisonville, Fall Term, 1846.
    This was an action of trespass, quare c7ausum fregit, brought against the defendant, for cutting a ditch on plaintiff’s land, and across a road leading from his plantation residence. The ditch was dug across this road, at its junction with another road, known as a private neighborhood road. It is as to the character of the road, the parties are mainly litigating. It run over the plaintiff's land, from the residence of the defendant and others, to some of their plantations, and into a public road. It was not laid out by any public authority, but for many years— certainly as far back as 1817—it has been indifferently used by persons living in its neighborhood, as they might have occasion to haul over it. Its average width is about ten feet; and at the time of the alleged trespass, it was used by the following persons;—Sams, Fripp, Reynolds, and the defendant, M’Kce. Until within a few years past, it had not been worked on by any understanding of those who used it.
    In 1840, some, or all of the above individuals, presented a petition to the Board of Roads, for St. Helena, to have it put under their jurisdiction, for the purpose of keeping it in repair. No notice of the application to the Board was given to the plaintiff, nor did it appear from the minutes of the Board, that any action had ever been taken on the petition. All that was known of it was, that such a petition was found folded up in one of the books kept by the Clerk. The road was within the division of the defendant, and as a Commissioner, he assumed the authority to have it worked on by the hands of those who used it. When the, plaintiff was called on to send his hands, he refused to obey the summons, and denied the authority of the defendant. The defendant put the hands that were sent, under the charge of Air. Reynolds, with instructions to work the road. When he came to the plaintiff’s plantation road, he cut a ditch, (the trespass,) parallel with the neighborhood road, and across the plaintiff’s way. Air. Reynolds, who was examined as a witness, said he had it done for the purpose of draining the water off of the road, being under the impression at the time, that the plaintiff had abandoned the use of the road, as he said he had been so informed by Air. Codding, the overseer of the plaintiff. Air. Codding differed in the statement, and said that the plaintiff had instructed him to use a new road in hauling manure to the fields,—not to abandon this, as it was the main carriage way to the house.
    This witness said that the ditch, about two feet deep, and two and. a half wide, had been a serious inconvenience. That some of the family of the plaintiff had to have fences pulled down to get to the house.
    It was conceded by plaintiff’s counsel, that Mr. M’Kee had a private right of way in the road, and to that extent, the plaintiff had no objection to his and others using it; but denied the right of the defendant to have it regarded as a public neighborhood road. The main question was, whether the defendant was justified in cutting the ditch, under his authority to work on the road. His Honor held that he was not j ustified under any such authority. First, because there was no evidence that any had been conferred by the Board; and secondly, if it had, it could not avail him, as the Board had no right to assume jurisdiction over the road, without pursuing the provisions of the Act of 1825.
    He said, however, that it was incident to the enjoyment of the way as a private way, to have the road kept in repair; but that he had no right in thus working on his way, to obstruct the plaintiff; and that if he had occasion to cut the ditch, he should have made a bridge over it for plaintiff's use. The jury returned a verdict of $20.
    The defendant moved for a new trial, on the following grounds, to wit:—
    1st. That the defendant had a right to work the road in question, either as a Commissioner, under the several Acts of Assembly, or as an individual who, (with others,) had a right of way, as was clearly proved, in the premises.
    2d. That the defendant was ordered to work the said road by the Board of Commissioners for the Parish of St. Helena, as a road which was used, and had for a long time existed as a neighborhood road, open and well established; which order did not conflict with the provisions of the Act of Assembly of 1825.
    3cb That if this case came within the provisions of the Act, the Board of Commissioners in their action thereon, will be presumed to have complied with the provisions of the law, in the absence of all evidence to the contrary.
    4th. That the particular act, alleged against the defendant, as a trespass, was claimed by the witness, Reynolds, to have been his own act, not authorized by the defendant, or any other person.
    5th. That the finding of the jury, was contrary to his Honor’s charge and the evidence, and was in all respects unjust and contrary to law.
    Johnson, for the motion.
    Cited Glover v. Simons, et al. Commissioners; 4 M’Cord, 67; to show that Commissioners have jurisdiction over private paths in their neighborhood, as distinguished from public highways. He said the Act of 1825 provides only against opening new roads, without complying with certain requisitions. That defendant had a right of way in this road, and both he and Reynolds had a right to work it, independent of his being a Commissioner; and that if a trespass had been committed, it was the act of Reynolds, and not of the defendant.
    Pope, contra.
    
    Contended that this was no public road. That the Act of 1825 provides that no new road shall be opened without three months notice in the neighborhood, and, if opposed, not until after the hearing of both parties before the Legislature; and that this act would be ex post facto, as to the case cited from M’Cord. He cited the Act of 1798, 9 Stat. at Lar., 293.
   Evans J.

delivered the opinion of the Court.

In considering this case, I shall assume that the jury have decided that the trespass for which action was brought, was committed by the defendant, M’Kee, or by his order, so as to charge him with the consequences of it. This leaves only one question to be decided, viz; the sufficiency of his plea of justification. There does not appear to be any ground for the allegation, that this road was any thing more than a private way, to which the defendant, with two or three other persons, had acquired a prescriptive right. This prescriptive right is founded on the assumption, (which, in general, is a mere fiction,) that at some remote period of time, (more than twenty years,) the owner of the soil had granted the way to the defendant, or those under whom he claims. If there had been a, grant, the production of that would show the extent and limits of the thing granted, but where the grant is presumed from the use, there, the use must define the extent of what is presumed to have been granted. Thus the use of a road five feet wide, or a foot-path, would not authorize nor support a claim to a wagon or cart-way, ten feet wide. And so strictly is this right limited to the use, that in the case of Taylor v. Whitehead, 2 Doug., 746, it was held that it was no justification of a trespass, that because the private way of the defendant, over the plaintiff’s land was impassable, from being overflowed by the river, he had gone on the adjoining land of the plaintiff, which was the trespass, for whicli he was sued. This case points to the distinction between public and private ways. If the road had been public, there would have been do doubt of the defendant’s right to go upon the a djoining lands of the plaintiff, when the public way was impassable. Those whose business it is to keep a public road in repair, have an undoubted right under the statute law of this State, and perhaps by the common law, to cut d defies to take the wader off, and to use earth and timber for the purpose of repairing the road. But I do not find any carm, which will authorize the conclusion, that the owner of a private way has any such right, as incidental to his way, unless he had acquired that also by a prescriptive use. If he has used not only the way, but also the right to repair it by taking earth from the adjoining land, or even timber, I do not see any reason why he may not acquire a right to the incidents as well to the road; the same evidence from whicli a grant of one is presumed, exists in relation to the other. Such a restriction may subjeetthe owner of a private way to some inconvenience, but convenience merely is no foundation for a legal right. It might be very convenient for A. to drain by ditches a noisome or pestilential bog through the land of B., but this could give him no right to interfere with the dominion of B. over his own land; lo also if one wishes to improve his private road ever another’s land, and to make the travel over it more convenient and easy, by means of ditches to carry off the water, he must obtain the owner’s consent. These observations apply to the subject of ways in general, as much as to the particular case. The principles suggested seem to result of necessity from the nature of the right by prescription, and if they are correct we are conclusive of the case. The circuit Judge seems to have been of the opinion that the right to repair the road was incident to the right of way. I do not find any authority for that opinion, except that in the case of Taylor v. Whitehead; the opinion is intimated that where a right of way arises from necessity, as where the owner of land sells to another a close surrounded by the sellers land, a right of way arises from necessity. The seller is bound to give the purchaser a way, and if the one he has allotted becomes impassable by being overflowed with water, the purchaser may go on the adjoining land. This is put on the ground that the law gives the right of way, and consequently what is incident to its enjoyment. But I do not find any authority for applying the same principles to a right of way arising out of contract. But conceding this, I think it very clear, the act done by the defendant cannot be justified. The plaintiff certainly, as owner of the soil, had a right to appropriate that which was his own, to his own use, and having done so, the defendant had no right to interfere with his enjoyment. The plaintiff had no right, by cutting a ditch, to improve his own road to obstruct the defendant’s use of his road, nor had the defendant any right for the same purpose to obstruct the plaintiff’s road.

The motion is dismissed.  