
    
      The State vs. John Pettis.
    
    There exist, in this State, two classes of publio ways — (1) Public highways; (2) Neighborhood roads, or private paths. These last have either been laid out by public authority, or the right to the use of them has been acquired by grant or prescription, by those residing in a particular neighborhood; they are not under the jurisdiction of the Commissioners of Roads, and are kept in repair by the voluntary labor of the residents of the neighborhood; the public, however, has the right to their use, and for their obstruction an indictment is the remedy.
    The erection of a gate, continued for more than twenty years, by the owner of the soil, across a neighborhood road or private path — which gate is opened and shut at pleasure, and hinders no one from the use of the road — does not amount to an extinguishment, though it may to a modification, of the public easement.
    
      Before Munro, J., at Barnwell, Spring Term, 1854.
    The report of his Honor, the presiding Judge, is as follows:
    “ The defendant, who was the overseer of Angus Patterson, was indicted for obstructing a highway leading through Mr. Patterson’s plantation. The road in question leads from the Augusta and Charleston road to a point on the Edisto river, called the Old Quarter Landing. The landing was on the land of Mr. Patterson, and was formerly much used for landing-goods brought up the Edisto in boats ; but since the construction of the South-Carolina Railroad, it has been used only as a place for the deposit of timber. There was formerly a post-office and store at this point. There were two roads running off from the Augusta and Charleston roads; they were distant about half-a-mile apart at the points where they left the Augusta road; at a distance of less than one mile they intersected, and thence formed a common track to the landing, which was one and-a-half miles from the Augusta road. There was no proof that either of these roads was laid out by public authority. It was shown that they existed from 1812, and had been kept up by those using them. Mr. Patterson became the owner of the plantation over which they passed, by purchase, in 1824. The road, from the point of intersection to the river, ran through his enclosed field. The working on them since his ownership was such as filling up breaks in the road, and other slight injuries, which was done for the convenience of individuals using it. There was no proof of working, at any time, by concert. More than twenty years before this prosecution was commenced, Mr. Patterson had erected a gate across the road, at the point of intersection, the gate constituting part of his enclosure. The gate was opened by those using the road, and who passed through with their timber without hindrance. The road, since the erection of the gate, was used by the neighborhood alone for hauling timber. During the last summer, the defendant, at the instance of his employer, locked the gate, whereupon this prosecution was commenced. The reason assigned was, that the timber-carts tore up the soil to a very considerable extent, by means of the foot, a piece of wood that supports the tongue. The timber-haulers on the Savannah river were compelled to abandon this kind of vehicle and use the balance-cart, as the former tore up the roads so badly, that the Commissioners threatened prosecution. The balance-carts were found to work equally well with those having the foot. The prosecutor and others have, since the indictment was preferred, been allowed freely to enter, and have done so with balance-carts ; and Mr. Patterson declared his willingness to allow the free use of the road, save with the cart with the foot. I should mention, that occasionally, when the road was boggy, the carts were compelled to go over the cultivated soil, whereby it was torn by the foot. The jury were instructed as to what was necessary to constitute a public road of the kind contended for; and that upon the testimony, this evidently was once a “ private path,” as they are denominated. But that the owner of the soil having put up and kept a gate across the road for more than or fully twenty years, in derogation of the rights of the public, was, in my opinion, a bar to any right the public may have ever had, and constituted a bar in this case. That a gate being an indictable obstruction, after the lapse of twenty years, a right to do so would be presumed. Holding this, I thought it unnecessary to instruct the jury upon the point made by the defendant in his second ground of appeal. The defendant was convicted.”
    The defendant appealed, and now moved for a new trial, on the grounds:
    1. Because it was abundantly proved, and uncontradicted, that the proprietor of the plantation through which the road passed, had, more than twenty years before this indictment was preferred, erected and kept up gates across the road, in derogation of the rights of the public; whereby it is submitted, that if the said road ever was a public highway, a right to obstruct it after the lapse of twenty years would be presumed.
    2. Because the defendant’s refusal to permit the prosecutor and others to pass said road was on the ground that the manner of their passage involved a trespass on his soil, in tearing it up with the feet of their carts, and this he had a legal right to prevent.
    3. Because the verdict was contrary to the law, evidence and the direct charge of the presiding Judge.
    
      Owens, for appellant.
    Bellinger, contra.
   The opinion of the Court was delivered by

Muneo, J.

There appears to have existed in this State, for more than a century, two distinct classes of public ways, the first of which consists of such highways, or thoroughfares, as lead to market towns, or other places of public resort — are laid out by the public authorities, and kept in repair by the public labor; and are in all respects subject to the jurisdiction of the Commissioners of Roads.

Those embraced within the second class are distinguished by the name of Neighborhood roads, or as they are styled in the early Acts of our Legislature, private paths. This latter name would seem to import that the ways in question are technically private. They are nevertheless public, alike in their origin, as in their use; for while some of them have been originally laid out by public authority, as will be seen by reference to the case of the State vs. Mobley, (1 McM. 44,) the right to the use of others has been acquired, either by grant or prescription, by those residing in a particular neighborhood. And although they are exempt from the jurisdiction of the Commissioners of Roads, and are kept in repair by the voluntary labor of those for whose immediate use and accommodation they are kept open, the public at large have nevertheless a right to their use, and for their obstruction, like the more public highways in the first mentioned class, the only remedy is by an indictment for a nuisance; see the State vs. Sartor, (2 Strob. 60).

As the verdict of the jury has established that the road in question is one of those public ways, falling within the last mentioned class, and that the same has been obstructed by the defendant in the manner stated in the report, the question presented for the consideration of the Court is, Whether the erection of a gate by the owner of the soil subject to such easement, for more than twenty years prior to the prosecution, although during all which time no one had been hindered or prevented from passing through it, amounts to an extinguishment of the right of the public to its use.

It is quite clear that an easement, founded either in express grant, or depending for its existence upon evidence of prescription, may be lost or extinguished by a tortjuous interruption of its exercise by the owner of the soil charged with such easement, provided such interruption be continued for a sufficient length of time to legalize the right under the statute of limitations. But it is equally clear, that the interruption that will have the effect of extinguishing such right, must be of a permanent character, and such as is wholly inconsistent with, or is adverse to, its exercise. (Bowen vs. Team, 6 Rich. 298.) But if, on the contrary, the obstruction which is relied upon as evidence of the means by which such right is sought to be overthrown, be of such a nature as to interpose no permanent barrier to its free and uninterrupted exercise — as was the case here — the only effect it can possibly have, if acquiesced in by the public for a sufficient length of time, will be merely to modify the right; but it can by no manner of means, however long it may be acquiesced in, have the effect either to extinguish the right or to bar the remedy — and to this point the case of Barnwell vs. Magrath (1 McM. 174) is a direct authority. In that case, the obstruction complained of was identically the same as in this, and the Court, in expressing its opinion, holds the following language: The only question on this part of the case is, Whether the erection of a gate across the way, which was opened and shut at pleasure, is such an obstruction as would have the effect to extinguish the right of way; and we are clearly of opinion it is not. It is a modification of the right, which may be prescribed; but it is not an obstruction that prevents the use of the way.”

We are therefore of opinion, that the verdict of the jury is well sustained by the law, and that the defendant’s motion must be dismissed.

And it is so ordered.

O’Neall, Wardlaw. Withers, Whitner and Glover, JJ., concurred.

Motion dismissed.  