The opinion of the court was delivered by
Haskell, A. J.
The indictment is for a nuisance committed by obstructing a “public highway” contra formam, statuti. The statute relating to that Subject is in Rev. Stat., ch. XLIV., § 16, p. 267. “ If any person shall cause any obstruction to be placed in any part of the said highways or on any bridge or causeway thereof, so as to obstruct or render dangerous or difficult the passage of carriages or other traveling thereon, and shall not immediately remove the same, when required, he shall be deemed guilty of a nuisance, and on conviction thereof, shall be fined in a sum not exceeding $10, nor less than $2, and shall be further liable for the expenses of removing the said nuisance.” The preceding section (15) establishes a penalty whenever “any person shall willfully and maliciously destroy, injure or in any manner hurt, damage, impair or obstruct any of the public highways,” &c., &c. The indictment cannot be made under Section 15, for it in no sense describes that offence, but it is cited to show that “said highways in Section 16 means public highways,” as mentioned in Section 15. No objection was made to the indictment for insufficiency or upon any other ground, and the only question is, whether there was any error in the charge of the judge. To convict under this indictment there must be proof that the road was a public highway, and that the obstruction was committed by the defendant, for the road being properly proved, the obstruction constitutes the nuisance. The only exceptions which need be considered, for the others are without any merit, are those which refer to the ruling of the judge upon the question, what constitutes a public highway. The case comes up on a statement by the appellant, with some additional and explanatory remarks by the judge, who thus settled the case. Whenever, therefore, the statements made by the appellant are not corrected by the judge, we take them to be admitted. One of the exceptions taken is to the charge “ that whenever the public had had the continuous and adverse use of a road over lands for twenty years, said road thereby became a public highway.” And another is to the charge “ that the same rules applied in law to the obstruction or change of a private path as to a public highway, both being public roads.” This report of a charge is *367not contradicted by the judge; he simply makes some additional statements not bearing directly on these exceptions, and says that the law, as laid down in Sartor’s ease, 2 Strob. 61, was his guide. We are forced, therefore, to conclude that for the purposes of this case no distinction was drawn between a “ public highway ” and a “ neighborhood road or private path used by the public; ” consequently, that proof either of a “ public highway ”' or a neighborhood road, as in State v. Sartor, would suffice. We think that this was an error, and will state the reasons for such opinion.
The section of the general statutes under which we infer that this indictment was brought, is taken, with very slight alteration, from the act of 1824, (Stat., Vol. IX., p. 545,) entitled “ An act concerning the state roads, and for preserving and protecting the same.” The preamble thus sets forth the subject and the purpose of the act: “Whereas, it is necessary that the several roads which have been or which hereafter may be constructed in this state, under the authority and at the expense thereof, should be protected by law from injury and dilapidation, and that provision should be made for keeping the same in good and contract repair; be it therefore,” &c. The act then proceeds to make provisions concerning “the said roads.” Sections 15 and 16, above cited, are copied from Sections 1 and 2 of the said act, substituting the words “ public highways ” for the said roads, viz., the roads described in the preamble. It may be argued that re-publication in the general statutes can work no material change, and that the meaning of “ public highways ” in the said sections, is limited to the roads described in the original act. It is deemed, however, more proper to consider the question as it comes up, and decide what class of roads is legally comprehended by the term “ public highways,” as used in this state.
It is a well-recognized fact that we have three classes of roads. Judge Evans, in his “ Digest of the Road Law of the State,”prepared by him in 1850, at the request of the Agricultural Society, describes them as follows : “ It would seem from these views that roads are of three kinds — 1. Highways, which are laid out for the use of the public generally. 2. Private paths, laid out for, used and kept in repair by particular persons. 3. *368Private ways or individual roads. The first two are public and the last entirely private. For an obstruction to a public road the remedy is by indictment. For a private way, by civil action.” Page 7, section 4, note 9. While such description is useful for general information, it cannot stand for a legal definition, unless the term “highway” be, by usage or judicial decisions or legislation, perverted from its proper and very extensive signification. “ Highways is said to be the genus of all public ways,” (Russ. on Or., Vol. I., p. 332,) and in that sense, all public ways are highways, and all highways are public ways. If this be coi’rect, the first two kinds described by Judge Evans are “ highways,” though differing in many respects from each other, and it would be arbitrary to distinguish one from the other by calling it a highway, which is the common name of both. Such arbitrary distinction has not been adopted. On the contrary, in Heyward v. Chisholm, 11 Rich. 253, in the opinion delivered by Wardlaw, J., it is said: “ Judge Evans, in his ‘ Digest of the Road Law page 7, thinks that our acts of assembly relating to roads seem to make a three-fold division of them into highways, private paths and private ways. But this attempt to systematize confused legislation cannot change the meaning of the words that have acquired a settled technical signification. Highway is a nomen generalissimum, which embraces every kind of way common to all citizens, whether a footway, a horseway, a cartway or a way by water; whether under the charge of commissioners or not, and whether originally laid out for the whole public, or laid out for particular persons and used by the public. Jacob’s Law Dict., tit. “ Highway ; ” 6 Mod. 225. Indictments for obstructions of our neighborhood .roads (strangely called private paths) call them highways. State v. Sartor.
Our roads are therefore properly divided into highways and private ways, and the highways are subdivided into two kinds. The variety of epithets by which these subdivisions have been indiscriminately called has given rise to some confusion. In State v. Mobley, 1 McM. 44, the classification by Judge Brevard in Eos parte Withers is adopted: “ Public roads are best distinguished into two sorts, namely, highways and private roads or paths. A highway is a principal road leading to market, town^ *369or some place of general resort, and is comm'only traveled by all kinds of people. Private roads are neighborhood ways not commonly used by other’ than the people of the neighborhood where they are, although they may be used by any one who may have occasion to do so.” In the leading case on the subject of obstruction of highways, (State v. Sartor, 2 Strob. 60,) is contained, in substance, the classification which was adopted by Judge Evans, and already quoted. In both these cases the question was whether a neighborhood road was a public road or highway, the obstruction of which would constitute a nuisance at the common law. It was particularly decided in State v. Sartor that obstruction of a neighborhood road was the obstruction of a highway, and constituted a nuisance. Beyond that point, which was decided, the classification of roads is of no authority. In State v. Pettis, 7 Rich. 390, neighborhood roads are recognized as highways, and the other class of public roads, or ways are referred to as “ more public highways.” The court, per Munro, J., says: “ There appears to have existed in this state, for more than a century, two distinct classes of public ways, the first of which consists of such highways or thoroughfares’ as lead to market towns, or other places of public resort, are laid out by the public labor, and are in all respects.subject to the jurisdiction of the commissioners of roads. Those embraced within the second class are distinguished by the name of the neighborhood roads, or, as they are styled in the early acts of our legislature, private paths. This latter name would seem to import that the ways in question are technically private. They are nevertheless public alike in their origin as in their use. * * * And although they are exempt from the jurisdiction of the commissioners of roads, and are kept in repair by voluntary labor of those for whose immediate use and accommodation they are kept open, the public at large have nevertheless a right to their use, and for their obstruction, like the more public highways in the the first-mentioned class, the only remedy is by an indictment for a nuisance. State v. Sartor, 2 Strob. 60.” The opinion was delivered in 1854. The legislature shortly thereafter, in 1855, passed an. act “To authorize the erection of gates upon all such roads as are not public highways.” 12 Slot.
*370408; Rev. Stat. 266, § 8. "In 1858 the case of State v. Jeffcoat came np to the Court of Appeals (11 Rich. 529) with the question whether a neighborhood road was within the provisions of the act or within the exception to the act, or, in other words, whether a neighborhood road was a public highway. It was held that although such road was a public way, it was, nevertheless, not a public, highway.” And such, we think, is the law. The case of Heyward y. Chisolm, already cited, is not inconsistent. ' The real ground relied on in that case was that a public way was not, of necessity, a highway, and that when a highway or public highway (for both terms are used) is pleaded in justification, that the proof of a neighborhood road could not sustain the plea. The argument was that a “ private path ” was not a highway. The court really decided upon that point. Besides, it was a civil action, and more liberality is allowed, and if “ public highway ” has been pleaded, the proof of “ highway ” would have established a public right, which was the real defence. And the court said that if the plaintiff was not really misled, “ the name was unimportant.” Such liberality cannot, however, extend to the allegations in an indictment. The state must prove what is charged, viz., the obstruction of a “certain public highway,” and by the authorities it is established that a neighborhood road is not a public highway. It was essential to a proper trial that the jury should have been instructed as to the real character of the way alleged in the indictment. The law of Sartor’s case could not be the law of this case, for that case was at the common law, and was for a “highway,” while this .is under the statute, and is for a “ public highway.” It may be contended that contra formam statuti is surplusage, and that the indictment is good at common law. Be that so, it makes no difference. The objection is not to the indictment, but to the failure to discriminate between the different kinds of public ways. There is a difference of defence, for what is an obstruction of the one is not always an obstruction of the other. A “ public highway ” is as distinct from a highway as a public landing is from a public way leading to the landing — at least so far as the present question is concerned. The fact that to obstruct either is a nuisance does not help the variation between the allegation and the proof, nor cure the effect of a charge which did not draw the *371legal distinction between the two. State v. Graham, 11 Mich. 310. If the way in question had not in fact been obstructed by the fence, but had been restored to its original bed, or only •changed, for a short distance, which sometimes and with some public ways the law would not consider an obstruction, and the defendant had put a gate or gates across it, under the act of 1855, then, if it were a “ public highway,” the remarks of the judge about the gates would be proper, but if the road turn out to ,be the other class of highway, commonly called “neighborhood road,” the remarks would be inapplicable, and would tend to mislead the jury.
The judgment is reversed and a new trial granted.
Willard, C. J., concurred.
McIver, A. J. I am unable to concur in the conclusion reached by the majority of the court in this case, and will proceed to state, very briefly, my reasons.
The only question which we are at liberty to consider is, whether there was any error in the charge of the Circuit judge for, there being no exception to the sufficiency of the indictment, we are not called upon to determine anything with respect to that. If we take the charge as stated, in what is designated in the “case” as the “judge’s report,” which, I think, we are bound to do, no error has been discovered, but, on the contrary, the law as there stated, applicable to the case, is unquestionably correct. The errors pointed out are found only in the charge as represented by the appellant, which, according to my view, should not be regarded as a correct representation of the instructions actually given to the jury. For the “ case,” as presented by the appellant, embracing his representations of what the Circuit judge did charge, was certainly objected to by the respondent, and the Circuit judge was called upon to “ settle the ease.” This he did in what is styled the “judge’s report,” and as the only real difference between that and the “ case,” as presented by the appellant, consists in the representations of what was said to the jury by the judge in his charge, I think we should regard the judge’s report as the correct representation, and that appellant’s representations are incorrect where they differ from such report. If, however, *372the representation made by the appellant as to what was said in the charge to the jury should be regarded at all, it must be construed in connection with the representation of the charge as made in the judge’s report. Construing it in this way, I am unable to perceive any error. I think it is conclusively shown, in the opinion of the majority of the court, that there are two^ classes of roads in this state, for the obstruction of which an indictment will lie. 1. Public highways. 2. Private paths or neighborhood roads; and that both of these classes are comprehended under the “nomen generalissimum” of highway. It is very obvious that the road, for the obstruction of which this indictment was brought, belongs to the second of these classes, and the only question, therefore, is, did the Circuit judge state the law correctly as applicable to that class of roads? I do not understand that this is questioned. The errors pointed out are, first, that, as represented by the appellant, the judge charged “ that whenever the public had had the use of a road over land, continuous and adverse for twenty years, said road became thereby a public highway,” the error, as I understand it, consisted in the use of the word “ public,” as qualifying the word “highway.” Now, even assuming this representation of the charge to have been correct, still — while this may have been an error, as an abstract proposition of law, inasmuch as it may not be strictly correct to say that “public highways” derive their origin from prescription — I do not see how it can be regarded as an error affecting or likely to affect the questions made in the case on the Circuit. And as I take the rule to be well established that in order to reverse or set aside a judgment of the Circuit Court it is not sufficient to point out any mere abstract errors of law, but they must be such errors in applying the law to the case as made below, as affected or would be likely to affect the result, I do not think, even conceding this to be an error committed, that it would be sufficient to require that the judgment below should be set aside. It is very clear to my mind that no question was raised in the trial below as to the distinction between these two classes of public roads, for in the indictment, to which no exception was taken, the road in question is indiscriminately designated as a “public highway,” a “common highway,” a “highway,” and as a “common public highway,” and there *373is no request to charge or exception indicating any design to draw a distinction between a “public highway” and a '“ private path ” or “ neighborhood road,” technically so-called. The only points made in the defence were: 1st. That the mere obstruction of a public road was not of itself sufficient to constitute a nuisance, but that the jury should have been instructed to inquire whether in fact such obstruction was a nuisance to the public. 2d. That the defendant, by opening a new road alleged to be equally as convenient as the old one, relieved himself from liability under this indictment. As to these propositions, it is conceded, as I understand it, that there was no error in the charge. The second error pointed out is in saying to the jury “ that the same rules applied in law to the obstruction or change of a private path as to a public highway, both being public roads.” .This alleged error is to be found only in the charge, as represented by the appellant, and not in the charge as represented by the judge’s report. As to this alleged error, while I am not exactly prepared to say that it was an error at all in this particular case as developed below, it is sufficient to say that the same remarks which have been made in reference to the first error alleged will apply. It is true that if the obstruction complained of was the erection of gates across the road, then to determine whether such an erection was an obstruction for which an indictment would lie, it would be important to inquire whether the road was a “public highway” or a “private path,” for if it was the former such an obstruction would be indictable, while if the latter, it would not, under the provisions of the act of 1855, (12 Stat. 408,) as construed by the case of the State v. Jeffcoat, 11 Rich. 529. In this case, however, the obstruction complained of was not the erection of gates but a fence, and certainly the building of a fence across a “private path” is just as much indictable as if built across a public highway. It seems to me, therefore, that to set aside the judgment upon the ground of the errors mentioned would be to give the appellant the benefit of purely technical objections to abstract propositions of law not applicable to the case as made on the Circuit and not raised in the court below. Again, I do not think that the indictment can be regarded as framed under the statute but that the words *374“ contrary to the form of the statute,” should be rejected as surplusage and the indictment be regarded as one at common law,, as in Sartor’s case. It is a well-established rule of criminal pleading that an indictment for an offence created by statute must follow the words of the statute; and, if it does not, it cannot be sustained except by the rejection of the words contra formara statuti, and treating it as an indictment at common law, which may be done in those cases where the offence existed at common law and has not been abrogated by any statute, as in this case now under consideration. The statute under which it is suggested that this indictment is framed is Section 16 of Chapter XLIV., General Statutes, p. 267, taken from Section 2 of the act of 1824. 9 Stat. 545. But the indictment cannot be regarded as framed under that section, for it omits one of the material ingredients of the offence there described. Under that section the mere placing an obstruction in a public highway does not constitute the offence, but it consists in not immediately removing suoh obstructions when required. Hence to sustain an indictment under this section it requires not only an allegation that defendant placed an obstruction in the public highway, but also that he failed and refused to “ immediately remove the same when required,”' and this latter allegation is not contained in the indictment in this case. This section was doubtless intended to prevent the temporary obstruction of public highways by the stopping of carts,, wagons or other vehicles in such highway, and refusing or neglecting to remove such impediments to travel when required. Nor can the indictment be regarded as framed under the preceding section of the same chapter of the General Statutes, which is taken from Section 1 of the act of 1824, supra, which was no doubt intended to prevent and punish those who might place permanent obstructions in a public highway; for in such case it would be necessary, following the words of that section, not only to allege that the defendant did obstruct such public highway, but that he did so “ willfully and maliciously,” and these material words are not found in this indictment. I think, therefore, that the Circuit judge was entirely correct in following the law as laid down in State v. Sartor, 2 Strob. 61.
New trial granted.