Talmage v. Davenport
31 N.J.L. 561
N.J.
1864
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The Chancellor

read the opinion of the court.

The plaintiff’s action is founded—

1. Upon a private right of way.

2. Upon the existence of a by-road across the lands of one of the defendants.

On the trial the court was requested to instruct the jury, what in law constituted a by-road, aud what evidence was necessary to establish the existence of such road. The court «declined to give the instructions prayed for, and this refusal is assigned for error.

The point upon which the charge was asked was pertinent *562and material to the issue. It is one of the clearest and most important duties of a court to expound the law to the jury, for its guidance and instruction. The faithful performance of this duty is absolutely essential to the value, if not to the very existence of the trial by jury.

It is not supposed that the learned judge designed either to ignore the duty or to evade its performance. On the' contrary the charge contains the most clear and explicit instructions to the jury, touching the' law in regard to a private right of way, and the character of the evidence necessary to-establish it. But upon the issue touching the existence of a by-road, the judge read an extract from the opinion of this court, in Van Blarcom v. Frike, 5 Dutcher 516, which standing alone, detached from the context, was calculated to-mislead the jury. The jury might naturally have inferred from the language of the opinion, that the determination of the issue was to be made, irrespective of legal principle. That the question which they were to try was beyond the pale of the law, and that the jury were to try not only questions of fact touching the existence and violation of the plaintiff’s right, but were to establish by a standard of their own the essential nature of the right itself. This certainly was not the opinion of the court, nor is it a legitimate inference from the opinion itself. Had the whole opinion been read,, the difficulty would have been avoided. What the court decided in that case was, not that the court erred in giving instructions to the jury, but that the instruction in one particular was erroneous. The instruction was that the maintenance of bars across the road, by the owner of the land, was conclusive against the existence of a by-road. This court was of opinion that the maintenance of bars by the owner of the land, was not necessarily conclusive against the existence of the way. That however strong the presumption against the public right might be, it was nevertheless a question of fact for the jury to decide, whether the use of the way by the public was of right or permission merely. This is clearly apparent upon the face of the opinion. And yet it is obvious-*563that the particular clause of the opinion read to the jury, was open to misconstruction, and that it did not give the instruction that was asked for.

Upon this ground the judgment must be reversed.