
    The State vs. John Duncan.
    A thoroughfare, or way, leading from one highway to another, is a highway, the stopping of which is a- nuisance, for which an indictment will lie!
    . Indictment for a nuisance in stopping a public highway.
    fiilS was an indictment against John Duncan, for a nuisance in obstructing a navigable creek, by erecting flood gates across its mouth, and in maintaining these flood gates.
    A number of witnesses were called on the part of the-prosecution, who proved that they had always considered ibis a public creelc, aud they believed it to be generally so reputed; that it had been always open, until the dam owned- by the defendant was built, and that boats, wood-schooners, &c. had used the creek. That it was dry at low water, and that the month of the creek was about two feet above the water in the river at low tide. The creek runs from Ashley river through the marsh on the west side of Charleston., and, it appeared from the evidence cf one witness, that Lunelle’s street runs down to this creek, at the extremity of which, on Cumming1 s creek, there is a landing.
    On the part of the defendant, several witnesses proved that they never bad heard of this being a public navigable creek; that they never had considered it such ; and though they had every opportunity of becoming acquainted with the fact, had it existed, they never knew that it had the reputation of being a public ‘creek. The copy of a plat and grant, by the Lords proprietors, to 'John Cumming, of a tract of 133 acres of land lying between Cooper and Ashley rivers was produced. The plat of land northerly and southerly was bounded by streight lines running from river to river.
    It was contended on the part of the State, that Cum-tiling's creek, (the creek in dispnu ,) formed a part of the southern boundary ; and the deb r.dant insisted that the south line crossed the creek ai.d went to the river. There were further given in evidence for the defendant, the acts of the legislature, vesting, as he contended, the whole creek in the city of Charleston; an early plat of Charleston; a plat of Charleston of 1770 ; one of the city lands by Purcell, surveyor, in 17S7, including the creek ; several other plats illustrative of the subject, and intended to shew that the creek had always been considered within the city lands, and a regular chain of titles from the City to the defendant, giving an express authority to erect the flood gate complained of as a nuisance.
    The jury found the defendant guilty; and he moved for a new trial on the ground, that the evidence did not support the allegation contained in the indictment, that the-defendant had stopped a public highway'.
   Mr. Justice Huger

delivered the opinion of the court.

The difficulty in this case is, to ascertain the charactei ®f Gumming's creek. It appears to have been used for many years as a tray by which the people living on liarles-fan’s green approached their dwellings from Ashley river 5 but this alone would not constitute a highway ; for a way leading from a highway, and terminating at a private house or in a particular neighbourhood is not a public, but a private way, for the stopping of which an indictment will not lie, (1 Hawkins, 367;) but a thoroughfare or way leading from one highway to another, is a highway, the stopping of which is a nuisance, for which an indictment will lie. (5 Taunton, 125.) There is no doubt that Ashley river is a highway, and as little that Lynché’s-ttreet is one. If therefore Gumming's creek be a thoroughfare between Ashley river and Lynché’s street, or any other street equally a highway, a stoppage of it is a nuisance, for which the proper remedy is indictment. The witnesses however appear not to have distinguished between a public and private way, and only one, and he incidentally mentioned that there was a public landing place at the extremity of Lynchs’s street on Gumming1 s creek. If this fact had been fully proved, or had it been distinctly submitted to the jury, and they had thought proper to find the verdict they did, I should have been unwilling to disturb it; but sis there is some doubt whether the jury ever regarded the ^existence of this fact as important in the case, and as no injury can result from another trial, and much consideration 35 due to the public interests involved, I am of opinion that the motion for a new trial ought to be granted.

Justices Watt, Bay and Johnson^ concurred.  