#### C. G. Capers *v.*James Fripp.

Action on the case for obstructing a right of way. In 1835, the plaintiff had recovered by verdict and judgment, a right of way in the general course of the private road claimed in this action. The complaint was, that the defendant had dug a ditch and thrown up a bank which obstructed the way. The recovery referred to did not describe he way, except by finding the “river road” for the plaintiff. One witness for the plaintiff deposed “ that *225the road had been for about thirty years, along the bluff of the river.— That after the recovery (spoken of), the witness, together with *Chaplin*and *Adams,*placed a line of stakes thirty feet from the river bank, (intended for the river side of the road,) and allowed eighteen or twenty feet outside the stakes for the road. They meant to lay out a sufficient way as the river successively washes the bluff and encroaches on the road. That there were two places where the old track ran outside the stakes, and there were spots where the bluff had encroached upon the old track; as it washes fast, they allowed some space for its washing. That it had not washed much since the stakes were put down. That since the stakes were put down a ditch had been dug and dam made, (no doubt) by the defendant. The ditch runs about eighteen feet from the bluff, and in one part (where there is a wash) about twelve feet only. This ditch cuts a small part of the *old track*off the road, but there the space is wide. The ditch runs sometimes within his line of stakes and at others out of it.”

The defence set up was that after the recovery, the defendant allowed at least twenty feet from the bluff for the plaintiff’s way, and that he had cut the ditch to keep the road within that space. That if it had been diminished by the river, the plaintiff had to bear the loss, on the ground that a private road must be repaired by the owner. One John Edwards, on the part of the defendant, deposed, “ that after James Fripp, Chaplin and Adams, had put down their stakes, he cut the ditch, &c., for the defendant in December, 1836. That the ditch left twenty-six or twenty-seven feet space for the road, but that it had been lessened in breadth by washing. That it was now thirteen feet at the wash and was safe enough. He did not think the ditch encroached upon the old track or stakes. Another witness stated “that the ditch encroached upon the old track, (as it stood before the recovery by the plaintiff,) but still leaves that spot wide ; that the river washed away the narrow spot (the wash) more than a foot last year, and that the bluff had neared the ditch about two feet since it was dug.”

Upon this evidence the Judge below instructed the jury, “ that by the former recovery, the plaintiff was entitled to a. certain *specific way*and no more. That it was not a *shifting*way, nor a road claimed from necessity. That the difficulty was to perceive what particular way he had recovered. There were no marked lines, stations, points, or corners, by which the court could lay down a rule for locating the precise line or route, of the road, only the *river road.*But that from the recovery, the plaintiff had clearly a right of way along the river, which it did not appear had been washed off. If it had, then the plaintiff might have claimed some' way or other, but that at present they had nothing to do with such a question. That if the defendant had adopted the route laid out by James Fripp, or the plaintiff the line ditched by John Edwards, the way might have been plain. That as the case stood, if the defendant had obstructed the old road actually recovered, he must pay damages for the obstruction; if he had not, the verdict must be for him ; whether the river had encroached upon the old track or not, did not affect the question. That he who used *226the way, must repair it or bear the inconvenience — and *he who*obstructed it must pay damages.” , The jury found a verdict for the plaintiff for $200 damages, and the court refused to grant a new trial.

*Before RICHARDSON, J., at Coosawhatchie, Nov. Term,*1838.

His honor, the presiding judge, before whom this case was tried, makes the following report: “ This was an action on the case for obstructing the plaintiff’s right of way along the bluff of St. Helena River, over the lands of the defendant. In 1835, the plaintiff recovered a right of way in the general course of the private road, claimed in this action. (See the record and verdict in Capers v. Fripp.) The complaint was that the defendant had dug a ditch and thrown up a bank, which obstructed the way. The recovery did not describe the way, except by finding the “ River Road,” for the plaintiff.

John Fripp deposed, that the road had been, for about thirty years, along the bluff of the river. That after the recovery, the witness, Chaplin and Adams placed a line of stakes thirty feet from the river bank, (intended for the river side of the road,) and allowed eighteen or twenty feet outside the stakes for the road. They meant to lay out a sufficient way, as the river successively washes the bluff, and encroaches on the road. There were two places where the old track ran outside the stakes, and there were spots where the bluff had encroached upon the old track ; as it washes fast, they allowed some space for its washing. But it has not washed much since the stakes were put down. Since the stakes were put down, a ditch has been dug and a dam made, (no doubt by defendant.) The ditch runs *about eighteen feet from*the bluff, and in one part, where there is a wash, about twelve feet only. This ditch cuts a small part of the old track of the road, but there the space is wide. The ditch runs sometimes within his line of stakes, and at others out of it.

The defence set up was, that after the recovery, the defendant allowed at least twenty feet from the bluff for the plaintiff’s way, and cut the ditch to keep the road within that space. That if it had been diminished by the river,' the plaintiff had to bear the loss. A private road must be repaired by the owner.

*227On the part of the defendant, John Edwards stated, that after James Fripp, Chaplin and Adams had put down their stakes, witness cut the ditch, &c. for the defendant, in December, 1836; that the ditch left twenty-six or twenty-seven feet space for the road, but it had lessened in breadth by washing. That it was now thirteen feet at the wash, and was safe enough. He did not think the ditch encroached upon the old track or stakes. The evidence of both this witness and the last may be required more ■in detail.

Benj. Capers stated, that the ditch encroached upon the old track, (as it stood before the recovery by plaintiff,) but still leaves that spot wide; the river washed away the narrow spot, (the wash,) more than a foot last year, and the bluff had neared the ditch about two feet, since it was dug.

I charged, that by the former recovery,' the plaintiff was entitled to a certain specific way, and no more. That it was not a shifting way, nor a road claimed from necessity. The difficulty was, to perceive what particular way he had recovered. There were no marked lines, stations, points or corners, by which the court could lay down a rule for locáting the precise line or route of the road, only the river road. But from the recovery, the plaintiff had clearly a right of way along the river, whiqh it did not appear had 'been yet washed off. If it had, then the plaintiff might have claimed some way or other; but at present we had nothing to do with such a question. If the defendant had adopted the route laid out by James Fripp, or the plaintiff the line ditched by John Edwards, the way might have been plain. As the case stood, if the defendant had obstructed the old road actually recovered, he must pay damages for the obstruction. If he had not, the verdict must be for him ; whether the river had encroached upon the old track or not, did not affect the true question. He .who used the way must repair it, or bear the inconvenience ; and he who obstructed it must pay damages.” The jury returned a verdict of two hundred dollars.

The defendant appealed, and now moves for a new trial on the following grounds : 1. Because the- evidence established that the ditch dug by the' defendant in December, 1836, did leave a good *228and sufficient way at that time, between it and the edge of the bank, a bluff in its whole length — and the jury ought to have been instructed to find for the defendant, if they believed that its intersection of the river road in the one point, spoken of by the witnesses, was occasioned solely by the plaintiff’s own encroachment on that side, *after*it was dug.

*2.*Because, the road staked off by Messrs. Fripp, Adams and Chaplin, commissioners, was an entirely new road, and the defendant not only had the right to obstruct it, but he had not the right to surrender the land of his intestate, included within the limits of the proposed road ; and the jury ought to have been directed not to take into consideration the said obstruction, and if the plaintiff had proved no other, to find for the defendant.

3. Because, the river road, the only road to which the plaintiff was entitled, was sufficiently designated and described by the witnesses; what ought to be the extent and location of that road, was not a question for the jury, but only whether the road as described and located by all the witnesses, had been obstructed by-the ditch in 1836, or before the commencement of the suit.

4. Because, the jury ought to have been instructed to find for the defendant, if they believed that any insufficiency in the river, road was occasioned by the breaking in of the bank of the river, and the neglect of the said C. G. Capers to repair them- — and that the difficulty of repairing and keeping in repair the said banks, if any existed, was not a question for their consideration.

5. Because, there was no evidence of any obstruction-of the river road by the defendant, before the commencement of the action ; and no evidence to Warrant the jury in giving any-damages at all, much less vindictive damages.

6. Because the jury ought to have been instructed that the verdict in the case between these parties in the year 1835, only established the plaintiff’s right to the river road, as it then existed, and nothing more; and that there was no evidence that he was entitled to a sufficient way over the land of defendant’s intestate, except in that road.

7. Because, the verdict is contrary to law and evidence, and the charge of the presiding judge.

*229*De Treville,*for the motion.

*Rhett,*contra.

Cuma, per Richardson, J.

The court considers the charge of the presiding judge correct and sufficient, according to the essential facts of the case, and the verdict satisfactory; but avoids giving any opinion upon questions not essential to the particular case and the verdict for the plaintiff.

The motion is dismissed.

Gantt, Evans, O’Neall, and Earle, Justices, concurred.