
    
      The State vs. G. B. Lythgoe.
    
    Where, in incorporating a town, the Legislature gives the Town Council jurisdiction over the streets as highways, and uses the word “ streets ” in reference to such as had been before designated and marked out, such streets, so designated by Legislative authority, become, highways, for obstructing which an indictment will lie; and it is immaterial that the street obstructed has not been entirely opened and made fit for all uses.
    
      Before Withers, }., at- Barnwell, Fall Term, 1852.
    The report of his Honor, the presiding Judge, is as follows :
    “ Lythgoe was indicted for obstructing Fairfield-street, in the town of Aiken. A plan of town, (that is, a paper purporting to be such,) was introduced on behalf of the prosecution ; which Wm. Buckhalter, a surveyor, and also a resident very near the corporate limits, said he had drawn, as a copy, from an original plan executed by Dexter & Pascallis, in 1832 or 1833. Since the original was not adduced or accounted for, I did not allow this paper to be used for any other purpose than to explain Buckhalter’s testimony. He said the plat was according to the survey by Dexter & Pascallis, for he saw the streets laid out by them, and he had located at various times, sundry lots on Fair-field-street ; that the streets, as laid out by them, were staked, and he had surveyed many of them since. When Dexter & Pascallis made their survey and plan, they were in the service of a company now called the South-Carolina Railroad Company, and designated the streets on lands then belonging to Cosnaham and the heirs of Kennedy, of which latter Buckhalter was one, and among whom, in 1832-’33, there were minors, married women and adults sui juris. In < 1850 the defendant took a title to himself and H. W. Conner, for eighteen acres, which includes the locus in quo, for $200, which is part of the Kennedy tract, and in his deed the parcel conveyed is described as bounded “ North by Wm. T. Jones and Mrs. Swartz; on the East by a part of the said (Kennedy) tract; on the South-west by Mrs. Williams, and on the West by Lythgoe.” The deed was executed by James Randall, and was located by Buckhalter according to the boundaries, without regard to the streets. Randall, while he owned the land, Avas a member of the Council of Aiken, and had caused a well to be dug in Fairfield-street, beyond the boundaries of the defendant, with the town funds, and for public use. . When the defendant bought, a road was used to the Coker Spring by all Avho .pleased, which had been obstructed by the defendant, and which passed obliquely through his premises. It was in testimony that Fairfield-street was quite convenient, if not necessary to Mrs. Swartz and others in her vicinity, as a way to the Coker Spring.
    
      “ At first the defendant found posts set up by his predecessor along the line of Fairfield-street, and the fence partly made. He completed it accordingly.
    “ Fairfield-street crosses the railroad. The defendant’s premises are on the south of railroad. The northern end of that street had been worked on by the corporate authorities and labor, but not the southern end, beyond the matter of the well aforesaid. The southern end had never been opened, the original growth yet remained, except in so far as it had been cut down by Lythgoe.
    “ It appeared that as to the streets generally, stakes had been set up b.y the original surveyors, indicating their position.. The earlier and principal settlements were made north of the railroad, and the streets, Fairfield included, respected there, but building was progressing rapidly to the south of late. Half-a-dozen residences had been recently erected, and others were in progress.
    
      “ In 1835 the Legislature incorporated the town of Aiken, providing that the corporate limits should be Avithin a circle one mile radius from the depot-bridge of the railroad. It was provided that there should be an Intendant and Wardens, who should keep open and repair all streets, alleys, lanes, &c., and they were invested with the powers, and subject to the duties and responsibilities of Commissioners of Roads, within the corporate limits. By A. A. 1836, the like potvers and duties were vested in and imposed on them, and those liable to road duty in Aiken were exempt from like duty elsewhere,
    “ Lythgoe’s residence is on a parcel of land, being a lot, which is situate in the corner of York street (west) and Colleton street (north). The latter is not cut out, the other is open.
    
      “ The defendant had extended his fences, in two places, across what was claimed as Fairfield-street, had been warned by Council to take them down, or they would be pulled down (the Council having passed resolutions forbidding any obstructions in the streets). He refused, and declared through his agent, that he would put up the .fences as fast as they were pulled down.
    “ I charged the jury that the location and plan by Dexter and Pascallis of themselves proved nothing; the question was, whether the Legislature, in 1835 or 1836, used the word “ streets,” in reference to such as had been before designated and marked out, and whether Fairfield-street was one of them; that if this should be found aifirmatiyely, it was immaterial whether the street had been entirely opened and rendered fit for all uses. It was enough that it had been distinctly designated by Legislative authority.
    “As to dedication, I gave them the law as set forth in Carver’s case, and told them that the only facts pertinent to that subject, were, the. well made under the corporate authority, and the completion of a fence by the defendant before begun, in conformity to the line of what was called and claimed to be Fair-field-street. The jury were made acquainted with the law as to new roads,(or streets,) as contained in the Road Act of 1825, and were instructed, in general, as to rules- of law concerning highways acquired by use and prescription. They found the defendant guilty.”
    The defendant appealed and now moved this Court for a new trial, on the grounds:
    1. Because there was no proof that there was any such street as Fairfield-street at the time the charter was granted to the town of Aiken.
    
      2. Because inasmuch as there was no proof that the Legislature, in granting the charter, had any knowledge whatever that any such street as Fairfield-street had been designated, his Honor erred in charging the jury that if they believed such a street had been laid out, and reference was had to a plan of the town, by the Legislature, the defendant was guilty of obstructing the highway.
    3. Because there was not the slightest proof that the streets in the town of Aiken were ever laid out by competent authority. The plan which it was said was made by Pascallis and Dexter, but which was not produced,_ being a drawing made by two private citizens, for their private use, before any charter was granted.
    4. Because there was not the slightest proof that the petition praying for a charter, and the Act of the Legislature granting the charter, made any reference whatever to any plan of the town, or to any particular streets then designated or laid out.
    5. Because there was no such road, “open way, passage, or ground appropriated for travel,” as Fairfield-street, the original forest trees being now growing in the track called Fairfieldstreet.
    6. Because if there had been such a street as Fairfield-street laid down on any paper before the charter was granted, the non-user of the same from 1835, the year the charter was granted, to 1852, is conclusive that the Town Council of Aiken never accepted the said street.
    7. Because there was no proof that the owners of the land ever consented to making a street through the said land.
    8. Because the Town Council of Aiken has no higher powers than Commissioners of Roads, and that Fairfield-street cannot be opened over defendant’s land without his consent.
    9. Because the finding of the jury is not supported by the evidence, and is contrary to law.
    10. Because some of the heirs of Kennedy, at the time the charter was granted, were minors and married women, and therefore could not make any dedication of the road in question to the public.
    
      
      Aldrich, for the motion,
    cited Act 1835, 6 Stat. 530, § 4, 6; Act 1836, 8 Stat. 449; Lindsay vs. Commissioners, 2 Bay, 38; Starlc Me Gowen, 1 N. & McC. 387; 9 Stat. 559; Commissioners vs. Taylor, 2 Bail. 282; Evans’s Road Laws, 5 ; 23 Eng. C. L. R. 38; 31 Id. 170; McKenna vs. Commissioners, Harp. 381; Commissioners vs. Murray, 1 Rich. 335; 45 Eng. C. L. R. 254; 7 lb. 158; 1 lb. 124; Carver's case, 5 Strob. 217. Bauskett, contra, cited Act 1830, 6, Stat. 413.
   Per Curiam.

This Court concurs in the instructions of the' Judge below to the jury. The facts were for their consideration : we perceive no error in their conclusion. .

The motion is dismissed.

O’Neall, Wardlaw, Frost, Withers and Whitner, JJ., concurring..

Motion dismissed.  