| Md. | Feb 13, 1924
George F. O'Brecht, the appellant, was convicted of unlawfully obstructing an alleged public highway running through his property, under the following indictment: *173
"State of Maryland, Anne Arundel County, to wit —
"The Jurors of the State of Maryland, for the body of Anne Arundel County, do on their oath present that George F. O'Brecht, late of said county, on the first day of January, nineteen hundred and twenty-two, and thence continually until the day of the finding of this inquisition, at the county aforesaid, in a certain public highway in the Third Election District of said county, which said highway did run from another public highway there situate, known as `Benfield Road,' to the public landing on Severn River in said county, called Oyster Shell Landing, said road running from said `Benfield Road' through the lands of the said George F. O'Brecht and being the only road leading to said Oyster Shell Landing from said Benfield Road, unlawfully did place and cause and permit to be placed certain logs, wood, trees and other obstructions during each of said days, whereby the said highway leading from Benfield Road to said Oyster Shell Landing was then and there obstructed and rendered unsafe to be passed over and travelled, to the common nuisance of all the people and against the peace, government and dignity of the State.
"James M. Munroe, "State's Attorney for Anne Arundel County."
To this indictment a demurrer was filed as follows:
*174"The defendant, George F. O'Brecht, demurs to the indictment in this case and for cause of said demurrer says:
"(1) That the said indictment is bad in substance and insufficient in law.
"(2) That the said indictment contains no allegation that the alleged obstruction was wilful on the part of the defendant.
"(3) That the termini of said alleged public road are not set out with sufficient particularity.
"(4) That the said indictment contains no allegation as to the manner in which said alleged public road became such, or as to the character or manner in which it is claimed to be so used.
"(5) That the said indictment contains no allegation as to the character of the alleged public landing, or any claim or allegation as to how it became public, or as to the character or manner of its use.
"And for other causes to be assigned.
"Ridgely P. Melvin, "Defendant's Attorney."
Which demurrer was overruled.
While no bill of exception was necessary to bring up for review a ruling on demurrer, in this case the overruling of the demurrer constitutes the first bill of exception.
The second exception is to the refusal of the court to sustain defendant's objection to the following question: "Up to that time tell us what use was made by the public of that road?"
The third exception was to the refusal to permit Bruner R. Anderson, a member of the bar, to answer the following question: "Did you ever have anything to do with the conveyance of this property to Mr. O'Brecht?"
The fourth was to the refusal to permit the same witness to answer the question: "Did you ever go over this particular property with a view of ascertaining any outstanding rights of way or roads. You made an examination of the title to the Powell and Klotz tracts, didn't you?"
And the fifth was to the refusal to permit the same witness to give testimony in support of defendant's offer to prove that the Powell tract was purchased by the defendant and title examined by the witness; that subsequently the Klotz tract was purchased by the defendant and title examined by the witness, and that the land shown on the plat filed in the Circuit Court for Anne Arundel County includes the land set out in the roadway; and to identify the plat by the witness.
We find no error in the ruling on the demurrer. Obstructing a public highway is a common law offense and the indictment properly followed the practice at common law.
The defects alleged by appellant do not seem to us substantial. See Bishop's Directions and Forms (2nd ed.), sec. *175
1015; Wroe v. State,
Counsel for defendant argued very ably and convincingly, with a wealth of authority to support their position, that a public highway imports "a way from one public place to another public place." We think it safe to say, at least, that a road running entirely through private property, as in this case, cannot become a public highway by prescription unless its termini are public places. Sustin's case, 1 Ventris, 189; 1 Hawkins, Pleas of theCrown, ch. 76, sec. 1; Campbell v. Lang, 1 Macqueen's App. Cas., 451; Young v. Cuthbertson, 12 Eng. Rul. Cas., at p. 535; Attorney General v. Antrobus (1905), 2 Ch. 188, 4 Brit. Rul. Cas. 868; Burke v. Davis, 62 Law Times (N.S.) 36;Woodyer v. Hadden, 5 Taunt. 126.
But it does not follow that an indictment must contain allegations "as to manner in which said public road became such, or as to the character or manner in which it is claimed to be so used," or "as to the character of the alleged public landing, or any claim or allegation as to how it became public, or as to the character or manner of its use."
The indictment alleges plainly that the termini are public places; the rest is a matter of proof.
There was no prejudicial error in the ruling which was the subject of the second bill of exception, as the question objected to does not appear to have been answered.
The third and fifth do not disclose any prejudicial error. The excluded testimony would appear from the questions to relate merely to the title to the real estate, including the bed of the road; and defendant's title to the whole of it was admitted.
But the fourth presents a more serious difficulty. Ordinarily the erroneous ruling on an interrogatory which is merely preliminary would not be the ground of reversal. Here, however, it is apparent that the learned trial court by its ruling shut off a line of inquiry not only relevant but most important in a case of this character. *176
The learned Attorney General, in his brief for the State, referring to the excluded testimony, says: "If offered for the purpose of showing that no dedication of the road appeared of record, it was inadmissible, as the State had not sought to establish the public character of the road by proof of dedication but by proof of public use and prescription."
But the road could not become a public highway by prescription unless there was a "public landing" as one of its termini, as charged in the indictment, and this the State utterly failed to prove. Indeed it did not attempt to prove that the landing was a public landing except by evidence of user. It is well settled that the public cannot acquire the right to use a landing by prescription or long continued user. Thomas v. Ford,
The fact that in spite of the absolute failure of legal evidence to justify a conviction, appellant was convicted by a jury, which was the judge of the law as well as of the facts, emphasizes the importance of the testimony which was excluded.
It is reasonable to suppose that the jury would not have fallen into this error if defendant had been permitted to prove affirmatively that the county records contained no evidence of any dedication or condemnation of the landing in question as a public landing. His counsel could then have argued to the jury with force that mere user was insufficient.
The exclusion of this testimony for all practical purposes excluded the argument.
True, there was no burden on the defendant to offer this proof, as he was entitled to acquittal on the case made out by the State. But it was his privilege to offer it and the denial of that privilege was reversible error.
Judgment reversed and case remanded for a new trial.
JUDGE THOMAS and JUDGE PATTISON have examined the case and concur in the above opinion. *177