State v. Gregg

20 S.C.L. 387 | S.C. Ct. App. | 1834

O’Neall, J.

We agree with the judge below, that this ver-diet cannot be sustained on the ground of prescription. Twenty years have not elapsed since the church was erected to which the road leads'; a less time has never been held in this State to be sufficient to establish that immemorial usage which would give either a public or a private right of way.

The road in dispute cannot be regarded as a highway. A way to a church, it is agreed by all the English law writers, is private and not public. In the case of Smith v. Kinard,^* the attempt was made, with the concurrence of the whole Court, to establish some simple and definite test, by which the Court and the citizens of the country could at a glance distinguish between a public and a private way. It was accordingly stated “ that the liability to keep or not to keep a road in repair, furnishes a certain and safe rule to determine whether it is public or private.” In the application of this rule, it was admitted in that case that exceptions might be found necessary to be made. This case, however, is not an exception ; for if any exception can exist, it must be where the public have a right of way by 'prescription.

It is not pretended’that there is any liability on the inhabitants to keep this road in repair.

The motion for a new trial is granted

Johnson, J. concurred. Harper, J. absent.

* Not reported.