Commissioners of Streets v. Taylor

3 S.C.L. 129

• Court: Supreme Court of South Carolina
• Decided: May 15, 1802
• Status: Published

Opinion

By the court,

all the judges present.

If a motion had been -made by the defendant, at the trial of this cause, for a nonsuit, we .think he would have been entitled to it, on the ground, that the evidence produced did not support the declaration, or shew any cause of action which the plaintiffs had, to entitle them to recover. If •the deeds cited did not convey the land in dispute, as has been contended, the plaintiffs can derive no right in virtue "of these deeds. If the deeds did convey the land, and the streets in question were intended, and ought to have been kept, as public ways, the plaintiffs, as commissioners of those streets, have no right to maintain this action tor any disturbance or obstruction to the right of passage therein. The right of using a highway is a right common to all mcn, and the defendant had the same right that the plaintiffs had : and neither can sue the other for disturbing this right, for, as to that, they may be considered as tenants in common. And if one man might bring an action, another might, and there would be numberless suits for the same cause. An indictment would have been proper. There is no other way of redressing a public injury of this sort. If these streets are to be considered as private ways, and the plaintiffs were entitled to an action to recover damages for a disturbance of their right to use and enjoy the same, yet this is not the proper action, but the remedy is by action on the ca3e.

But as the plaintiffs have obtained a verdict, which we think is not well founded in law, and supported by proper evidence, the same must be set aside, aud a new trial ordered.