State v. Washington

June 27, 1908. The opinion of the Court was delivered by The defendant was convicted, under an indictment in which it was charged "that this defendant did wilfully, unlawfully and maliciously obstruct a certain neighborhood road, said road running from the public highway leading from Hodges, South Carolina, to Smith's old bridge, north to the public highway leading from Hodges, South Carolina, to Mulberry, South Carolina, by plowing up and planting a section of said road, and building, erecting and maintaining a structure over and across the same, and that by such obstruction the neighborhood and the public have been deprived of the use of said road, the said road having been used continuously and uninterruptedly by the neighborhood and the public for more than twenty years last past before the obstruction of the same, and has thereby become a public road."

The defendant appealed upon exceptions which will be set out in the report of the case.

The first assignment of error is based upon the charge of his Honor, the presiding Judge, that a neighborhood road is one of those which leads from one public place to another, for instance, to a church or mill, or a public highway, or connects two public highways.

The presiding Judge, also, charged the jury as follows: "Mr. Graydon: I don't think you said anything to the jury about a permissive use of the road. The Court: Counsel has called my attention to that point. The public acquire the use of the road by twenty years' continuous, adverse possession of the land, and thereby acquire the right, if it is done adversely and continuously for twenty years. It has to be used by the public, as I have stated, continuously and adversely for twenty years or more, before they can acquire the right to do it. Now, the owner of the land can grant permission to a man or friend or let the neighborhood ride over his land, and if the neighborhood take it from him as a matter of grace, and doesn't do it adversely, that is permissive use; and the right, the twenty years to which I referred, must be adverse use. Permissive use by the owner or owners of the land will never ripen into a road, a neighborhood road, for which he can be indicted."

In the case of the State v. Sartor, 2 Strob., 60, 66, the Court uses this language: "In the case of a public way every man holds his land subject to the right of the State to lay out roads for public purposes. This being so, if the way be found to exist long enough to presume a dedication, the right to regard it as public, if its other characteristics be found, is made out."

By continuous adverse use for twenty years the public may acquire a prescriptive right to a road over any land, which is subject to the right of the State to lay out a road over it. State v. Tyler, 54 S.C. 294, 32 S.E., 422; State v. Toale, 74 S.C. 425, 54 S.E., 608.

The charge was free from error, and this exception is overruled.

The second exception is also overruled for the reasons just stated.

The third exception cannot be sustained for the reason that, even if there was error, it has not been made to appear that it was prejudicial.

The fourth exception must be overruled, for the reason that the indictment charges the unlawful obstruction of a neighborhood road, and there was testimony tending to sustain the said allegations.

The fifth exception cannot be sustained, for the reason that it merely involves a question of fact.

It is only necessary to refer to the testimony of June C. Wilson, the principal witness for the State, to show that the sixth exception cannot be sustained, which testimony is as follows: "Do you know this road that we are talking about here? Yes, sir. How long have you known it? I have known that road about twenty-six years. Has it or not been traveled by the public, used continuously by the public, for that time? Yes, sir. Where does it run? From Lewis Johnson's house out to the road leading from Hodges, to Smith's old ferry bridge, on the right-hand side coming from Lewis Johnson's."

The seventh exception is disposed of by what has already been said.

It is the judgment of this Court that the judgment of the Circuit Court be affirmed.