Baring v. Heyward 2 Speers 553, 29 S.C.L. 553

Charles Baring vs. Nathaniel Heyward, jr.

1. Defendant, a commissioner of the roads, in repairing a public highway injured by a freshet, established along and on a bank or dam which ran through and divided plaintiff’s rice fields, directed4 plaintiff’s trunk to be drawn out from under the road, and the road to be repaired. But the earth above the trunk, which was 12, 15 or 18 feet in length, was removed, and a bridge of boards thrown over, making the road safe. The arms of the trunk extended four feet beyond each end of it, and did not impede the passage of persons along the road, or obstruct its repair. It was in evidence that one arm attached to the trunk was cut when the work, under defendant’s order, was done by his slaves and overseer.

2. The presiding Judge instructed the jury that the freehold where the road ran was the plaintiff’s; the public had the right of way along his dam or bank, but he had a right to use it in any way not inconsistent with that public easement. That twenty successive years continued use of the trunk in one plan, or with immaterial changes, would have been necessary for a right by prescription.

3. That any act necessarily done by defendant in the repair of the road, was justifiable.

4. That if the cutting of the trunk was by defendant’s authority, he was liable as a trespasser.

5. That the defendant was not liable for the unauthorized acts of his slaves or overseer. Held, that the jury were properly instructed.

Before O’Neall, J. Colleton, Spring Term, 1842.

This was an action of trespass for cutting and otherwise injuring a trunk of the plaintiff’s rice fields on his Grove plantation.

It appeared in evidence that the fields were cultivated in rice, and that a bank ran through and divided them in 1798. Through this bank, at that time, there was a trunk, not at the precise point where it is now, but near to it, and one has been ever since to the right or left of the one at present there, which has. been in its place eight or ten years. Along and on this bank a public highway was established. In 1836 the plaintiff planted the fields on either side of the bank. In 1837, Nath’l. Heyward, sr., by the permission of the plaintiff, planted the fields. In 1838 and 1839, the plaintiff cultivated them, and in 1840 a part of the fields were planted by the defendant, under the permis*554sion of his grand-father, Nathaniel Heyward, sen. who had. procured leave to plant them from the plaintiff. In 1841 the plaintiff declined to permit the defendant or his grandfather to plant the fields, and intended planting them himself.

The defendant is a commissioner of roads. In the freshet of March, 1841, the water passed over the bank at the trunk, and the continual pressure of water against the bank perforated it at the side and on the top of the trunk. One of the witnesses, Mr. Spikes, said; riding over the road on Thursdry or Friday; he found that the road gave way on the water side; over the trunk, and he supposed it had blown up. He gave information to the defendant, who, on Saturday, directed his own overseer to take his (defendant’s) slaves, arid to dfdio the trunk out from under the road} and repair it. Instead; however, of taking out the trunk, they dug down to it and removed the earth above it, and threw a bridge of boards oVer it, making the road safe. The trunk, according to Mr. Tudor’s testimony, had three arms the Thursday-before. Mr. Spikes said it had two ten days before; one was cut off, he thought, between that time and the time the defendant Worked the road; The defendant’s overseer said one arm was there and attached to the trunk when they went to Work on the road, it was then cut off', but by whom he did not know. Mr. Tudor thought all three arms were cut off at the time the road was worked. The trunk was Í2; 15 of 18 feet long; the arms extended four feet beyond each end of the trunk; the trunk had not been used for some time, and to be used, must have fouf arms and two doors. The doors were lying in the ditch; under water, to preserve them. The defendant, in answef to a letter from the plaintiff, avowed the opening of the breach at the trunk, and declined doing any thing to avoid a law suit. In consequence of the cutting of the dam, and the injury done to the trunk, the plaintiff declined planting the fields, on the ground if he repaired the injury, the defendant, as a commissioner of roads, might repeat the act already done. He thereby lost the planting of 65 acres in rice, which usually produced 40 bushels to the acre.

The jury were told that the freehold where the road ran, was the plaintiff’s; the public had the right of way along *555his bank or dam ; but he had the right to use it in any way not inconsistent with that public easement. He had the right to drain and flow his field through and against it, and hence the trunk was his, and could pot be removed by the commissioner. If his right had depended upon prescription, then there must have beep twenty successive years continued use of the trunk, in one plan, or with immaterial changes of location. In this respect, if necessary, the proof would have sustained, in the opinion of the pre* siding Judge, the plaintiff’s right. The commissioner, the defendant, had the right to repair the road, apd apy act done necessarily for that purpose was justifiable, But if the plaintiff’s trunk was cut by his order, it was outside of his authority, and he was liable as a trespasser. The arms of the trunk were beyortd the road, and did not, ip any way, impede the passage of persons along the road, or obstruct the repair. The jury were told that the defendr ant vms not answerable for the unauthorized acts of his slaves or overseer. They must be satisfied, before they could find for the plaintiff, that the injury was done in the execution of his orders ; as, for example, in attempting to draw the trunk out from under the road, or that the defendant lipf avowed it in his letter. .

The jury found for the plaintiff, $100.

The defendant appealed from the verdict of the jury, and moved the Court of Appeals for a pew trial, on the following grounds:

1. That the act complained of was striGtly within the jurisdiction of the defendant, as commissioner of the pub-, lie roads, and for which his Honor should, therefore, have charged the jury that the defendant was pot answerable in a private action for damages, there being no evidence of malice or want of competent attention and skill op the part of the defendant, and the cutting the arm °f the trunk being necessary to extend the road to its legal width.

2. That there was no proof the act complained of as a trespass, viz the cutting the arm of the trunk, was done by the defendant’s authority or sapction? but just the com trary.

3. That if the plaintiff had any right tQ keep the trunk *556in its place on the public highway, it was on the footing of an easement, for which it lay on him to establish a prescriptive use for twenty years, peaceable, uninterrupted and adverse, which he did not do.

4. That the verdict was, otherwise, contrary to law and the evidence.

Rhett & Perry, for the motion. -, contra.