Summary
In S. v. McDaniel, 53 N.C. 284, the jury found a special verdict that the road had been used by the neighborhood for sixty years in going to church, to mill, and to public highways on foot, or horseback and in vehicles, and yet it was not held to be a public road which it was indictable to obstruct.
Summary of this case from State v. LucasOpinion
(December Term, 1860.)
A road only one mile long and from 10 to 15 feet wide, leading from a public highway to a church, and used by the people of the neighborhood for sixty years in going to and from the church, and which is connected with a country road leading to a mill in the neighborhood, and to a railroad station, but which had never been under the charge of an overseer nor worked as a public highway, is not a public highway so as to subject one to indictment for obstructing it.
INDICTMENT for obstructing a public highway, tried before Saunders, J., at Fall Term, 1860, of GUILFORD.
Attorney-General for the State.
No counsel for defendant.
The following is a special verdict found by the jury in the case: (285)
"We find that the road described in the bill of indictment hath been used for sixty years by the people of the neighborhood of Bethel Church in passing from an established and admitted highway to and from Bethel Church; that the distance from the admitted highway to the church is one mile; that this road is connected with other roads leading to different places in the neighborhood, and with another country road used by the neighbors in getting to a mill in the neighborhood, and to the McLean Station, on the North Carolina Railroad, for the last four or five years; that the road was from ten to fifteen feet wide, not wide enough at some places for wagons to pass each other on the path, and was never, to the recollection of any one, under the charge of an overseer or worked on as a public road as charged in the bill. If the Court should be of opinion that from the foregoing facts the defendant is guilty in law, we find the defendant guilty; otherwise, we find him not guilty."
The court being of opinion with the defendant, gave judgment accordingly. Solicitor for the State appealed to this Court.
The special verdict in this case presents the inquiry whether mere use of a way or road by the people of a neighborhood for a long lapse of time to go to church and other neighboring places makes it a public road. The road does not appear to have been laid off agreeably to the provisions of our statute law; it is not of the width prescribed for our highways, and it has not been treated as a highway by the appointment of an overseer with laborers to keep it in repair. Upon no principle, therefore, of which we are aware can it be classed among the public roads of the country which it becomes indictable to obstruct.
The Code declares that all roads laid out or appointed by (286) the General Assembly or by order of court are public roads, and roads which have been used by the public through a sufficient length of time to justify the presumption of a lawful origin have been held by this Court to be public roads upon the principles of the common law. Woolard v. McCullough, 23 N.C. 432; S. v. Hunter, 27 N.C. 369; Davis v. Ramsay, 50 N.C. 236.
But we take it, in respect to this latter mode of testing the character of a road, that the use by the public must be of such nature as to apprise the proprietor of the land that it is claimed by the public as a matter of right; as, by an assumption of jurisdiction over it by the court which is charged with the repair of the public ways, or at least, by some other unequivocal act or acts which shall guard the owner of the assertion that the use is not from him "of special favor."
The verdict excludes the inference that this way was used by the public at large in any sense, and declares it was used by the people of a neighborhood to get to church, etc. It is not, therefore, a public road, and we concur with the Superior Court in the judgment that the obstruction of it is not indictable.
From the finding of the jury, we suppose the road terminated at the church, and was, therefore, what is called in French phrase, a cul de sac. It is difficult to conceive of a highway a mile long and closed up at one end, for the public at large cannot be in use of it; and if a road be for the accommodation of particular persons only it cannot be a public road. An indictment which should charge the stopping communem viam ad ecclesiam pro parochianis would clearly be bad, for then the inquiry would extend no further than to the parishioners, which is a private grievance according to what is said by Lord Hale, in Thrower's case, 1 Ventris, 208.
This opinion is irrespective of the rights of the Church or of the people worshiping at that place to this way as a private easement, or to the rights of others to the road upon a similar principle. Of this we say nothing because a violation of such rights is redressed by (287) private actions, and not by public prosecutions.
PER CURIAM. Affirmed.
Cited: Boyden v. Achenbach, 79 N.C. 542; S. v. Purify, 86 N.C. 682; Kennedy v. Williams, 87 N.C. 8; Stewart v. Frink, 94 N.C. 488; S. v. Wolf, 112 N.C. 894; S. v. Haynie, 169 N.C. 282, 283; S. v. Fisher, 117 N.C. 739; S. v. Gross, 119 N.C. 870; S. v. Lucas, 124 N.C. 806.