State v. Miller

• Decision Date: 23 July 1923
• Docket Number: 11278.
• Citation: 118 S.E. 624,125 S.C. 289
• Parties: STATE v. MILLER ET AL.
• Court: South Carolina Supreme Court

118 S.E. 624

125 S.C. 289

STATE v. MILLER ET AL.

No. 11278.

Supreme Court of South Carolina

July 23, 1923

Appeal from General Sessions Circuit Court of Georgetown County; W H. Townsend, Judge.

John A Miller and another were convicted of obstructing a highway and they appeal. Reversed, and a new trial ordered.

Walter Hazard, of Georgetown, for appellants.

L. M Gasque, Sol., of Marion, and Capers G. Barr, of Georgetown, for the State.

MARION J.

The indictment upon which defendants were convicted charged that on a day certain they "did unlawfully obstruct a neighborhood road, that had become a public highway by being used more than 20 years by placing and erecting across said road a wire fence," etc. From sentence imposed defendants have appealed upon exceptions which may fairly be construed to raise but one question.

The circuit judge refused several of defendants' requests to charge, which embodied, in substance, the following proposition:

"The rule in this state is that a prescriptive right arises in favor of the public after continuous use of a road for 20 years when it runs through cultivated land, but that, when it passes over uninclosed woodland, it must also be shown that the use was adverse and under a claim of right, and not by the owner's permission." (Defendants' third request.)

The learned circuit judge, under the authority of State v. Sartor, 2 Strob. 60, and State v. Floyd, 39 S.C. 24, 17 S.E. 505, apparently adopted the view and applied the rule that the public right arising from use of a neighborhood road through uninclosed woodland for 20 years or more does not rest upon adverse use, but upon a presumption from lapse of time that the owners of the land have dedicated it to the public use, under which rule the true test of the public right "is in the general use, by all persons, for public purposes, for an uninterrupted period of twenty years or more." State v. Sartor, supra. We think the circuit judge was in error. As was pointed out by Mr. Justice Jones in his concurring opinion in Kirby v. Southern Railway, 63 S.C. 524, 41 S.E. 765, the expressions in State v. Sartor and State v. Floyd, supra, relied upon by the circuit judge, were really obiter dicta. It is true that in certain subsequent decisions, notably in Kirby v. Railway, supra, and Earle v. Poat, 63 S.C. 439, 41 S.E. 525, the doctrine announced by Mr. Justice O'Neall in State v. Sartor, supra, as to the point here under consideration, would seem to have received a measure of recognition and approval. But that such doctrine may not be regarded as ever having definitely received the authoritative sanction of this court as applied to a neighborhood road through uninclosed woodland, is very clearly indicated by the unequivocal declaration of the law on this subject by the present Chief Justice in State v. Rodman, 86 S.C. 158, 68 S.E. 343, which is the most recent case involving the precise point here presented, to which our attention has been directed. In that case the court said:

"The rule in this state is that a prescriptive right arises in favor of the public after the continuous use of a road for twenty years, when it runs through cultivated land, but that when it passes over uninclosed woodland it must also be shown that the user was adverse."

The rule as thus stated in State v. Rodman, supra, is the rule announced and supported with cogent reasoning in Hutto v. Tindall, 6 Rich. 396, as follows:

"The jury were instructed that the mere use of a road over uninclosed woodland could not confer a right of way, as a neighborhood road or private path, unless the use was shown to have been adverse; that is, accompanied by such acts as showed that the way was claimed as a right, and not used by the permission of the owner of the land over which it passed; such, for instance, as working on it, keeping it in repair, requiring those who interfered with it, by fences, to open another way convenient to the public; or by other facts and circumstances which showed a concession of the way by the owner of the

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