State v. Floyd , 39 S.C. 23 ( 1893 )

The opinion of the court was delivered by

Mr. Justice McGowan.

The defendant, Ervin Floyd, was indicted for obstructing a neighborhood road, at the common law. There was no objection made to the form of the indictment. A true bill was found by the grand jury. At the trial much testimony was introduced pro and con, and the defendant was eonvicted, and sentenced to pay a fine of two dollars and to remove the obstructions forthwith. The defendant at the trial submitted a number of requests to charge, but after the judge had.charged generally, and was proceeding to take up “the requests,” the counsel far the defendant rose in court and said: “Tour honor has covered the ground contained in our requests to charge, and we withdraw them.” Therefore, the judge did uot charge upon theta; and, of course, they are not properly in the ease, although printed in the record.

1 The defendant appealed to this court upon several exceptions, the first and second of which were upon the subject of “the requests to charge,” which had been formally withdrawn, and, of course, can not be considered. The remaining exceptions are as follows: III. Because his honor erred in charging the jury that the mere traveling over a road through “woodland” by the public for twenty years raises the presumption of a grant, and gives a prescriptive right. IV. Because his honor erred in not charging the jury that the facts in the case did not make out a prescriptive right on the part of the public to the road in question. V. Because his honor erred in the judgment requiring the defendant to remove the obstruction from the old road, when the evidence showed he was not the owner of the land over which it passed, and that the owner of the laud was present when the road was being obstructed. YI. Because the verdict of the jury is manifestly against the law and evidence in the case, &c.

2 Exception marked three imputes error to the Circuit Judge in charging, “that traveling over the road by the public for twenty years through ‘woodland,’ raises a presumption of a grant.” Keeping in view the difference between “a private way” and “a private path” or neighborhood road, we can not find in the charge that the judge held as imputed to him. He said that “the nomenclature of the different kinds of roads was unfortunate, as the jury are not apt to draw the distinction between ‘private paths’ and ‘private ways.’ A private path is a neighborhood road; a private way is an individual right. A private way requires stronger proof to establish the right than a neighborhood road, because the right to a neighborhood road may be established by proving twenty years’ use over that same place; but a private way is acquired, not by twenty years’ use only, but in addition to that, by some assertion of an adverse right — a right as against the owner of the soil to travel in that direction. Now, we have in this case to deal with a neighborhood road. When the right to a neighborhood road has been acquired, either by dedication or by the consent of the owners, and accepted by the public, which is signified by using it — when that has been acquired, then neither the owners of the soil or any one else can obstruct it, without violating the criminal law of the State,” &c. We see no error in this. It seems to be precisely in accord with what was said by Judge O’Neall in the case of State v. Sartor, 2 Strob., 66, viz: “The true test is in the general use by all persons for public purposes for an uninterrupted period of twenty years or more. In one respect, I think that there is a great difference as to the evidence, from which a dedication to public use may be presumed, and prescription for a private way. In the latter no such right can arise in woodland, without some unequivocal act of adverse right, such as cutting out the road or repairing it.”

3 Exception four eomplains that the judge erred “in not charging the jury that the facts in the case did not make out a presumptive right on the part of the public to the road in question.” The force of the evidence is alone for the jury; and we thiuk if the judge had charged as indicated, he would have committed error in “charging upon the facts,” contrary to the inhibition of the Constitution.

4 Exception five complains that there was error “in the judgment, which required the defendant to remove the obstruction from the old road, when the evidence showed he was not the owner of the land over which it passed, and that the owner of the land was present when the road was being obstructed.” As we have stated, this is not a case of private right of way, acquired by prescription, in the lands of another person, but a right of the public in this road, which, as found by the jury, had been obstructed by the defendant; and as the jury found that the defendant had created the obstruction, we can not say that it was error of law to require him to remove it, without any regard whatever as to the ownership of the land at that particular place.- As we understand it, the law is that “when the defendant is convicted of a nuisance on a highway, the judgment is that he remove it at his own costs, and he will be committed until the sentence be complied with.”

5 As to the last exception, it is too general to be considered; and it can hardly be necessary to repeat what we have so often said, that in a law case this court has no right to review the evidence, but is confined to the correction of errors of law.

The judgment of this court is, that the judgment of the Circuit Court be affirmed.