State v. Floyd

• Decision Date: 03 April 1893
• Citation: 17 S.E. 505,39 S.C. 23
• Parties: STATE v. FLOYD.
• Court: South Carolina Supreme Court

17 S.E. 505

39 S.C. 23

STATE v. FLOYD.

Supreme Court of South Carolina

April 3, 1893

Appeal from general sessions circuit court of Marlboro county; W. H Wallace, Judge.

Ervin Floyd was convicted of obstructing a neighborhood road, and appeals. Affirmed.

Townsend & Hamer, for appellant.

J. M Johnson, for the State.

McGowan J.

The defendant, Erwin 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 convicted, 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 for the defendant rose in court and said: "Your honor has covered the ground contained in our requests to charge, and we withdraw them." Therefore the judge did not charge upon them, and of course, they are not properly in the case, although printed in the record.

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exceptions, the first and second of which were upon the subject of "the requests to charge," which had been formally withdrawn, and, of course, cannot be considered.

The remaining exceptions are as follows: "(3) Because his honor erred in charging the jury that the mere travelling over a road, through ' woodland, 'by the public for 20 years, raises the presumption of a grant, and gives a prescriptive right. (4) Because his honor erred in not charging the jury that the facts in the case did not made our a prescriptive right on the part of the public to the road in the question. (5) Because his honor erred in the judgment requiring the defendant to remove the obstruction from the old remove the obstruction from the old 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. (6) Because the verdier of the jury is manifestly against the law and evidence in the case," etc.

Exception marked 3 imputes error to over the road by the public for 20 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 cannot 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...