State v. Duncan

Supreme Court of South Carolina

State v. Duncan

12 S.C.L. 404

DecidedMay 15, 1821

StatusPublished

This text of 12 S.C.L. 404 (State v. Duncan) is published on Counsel Stack Legal Research, covering Supreme Court of South Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Duncan, 12 S.C.L. 404 (S.C. 1821).

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Opinion

Mr. Justice Huger

delivered the opinion of the court.

The difficulty in this case is, to ascertain the charactei ®f Gumming's creek. It appears to have been used for many years as a tray by which the people living on liarles-fan’s green approached their dwellings from Ashley river 5 but this alone would not constitute a highway ; for a way leading from a highway, and terminating at a private house or in a particular neighbourhood is not a public, but a private way, for the stopping of which an indictment will not lie, (1 Hawkins, 367;) but a thoroughfare or way leading from one highway to another, is a highway, the stopping of which is a nuisance, for which an indictment will lie. (5 Taunton, 125.) There is no doubt that Ashley river is a highway, and as little that Lynché’s-ttreet is one. If therefore Gumming's creek be a thoroughfare between Ashley river and Lynché’s street, or any other street equally a highway, a stoppage of it is a nuisance, for which the proper remedy is indictment. The witnesses however appear not to have distinguished between a public and private way, and only one, and he incidentally mentioned that there was a public landing place at the extremity of Lynchs’s street on Gumming1 s creek. If this fact had been fully proved, or had it been distinctly submitted to the jury, and they had thought proper to find the verdict they did, I should have been unwilling to disturb it; but sis there is some doubt whether the jury ever regarded the ^existence of this fact as important in the case, and as no injury can result from another trial, and much consideration 35 due to the public interests involved, I am of opinion that the motion for a new trial ought to be granted.

Justices Watt, Bay and Johnson^ concurred.

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Mr. Justice Huger

delivered the opinion of the court.

The difficulty in this case is, to ascertain the charactei ®f Gumming's creek. It appears to have been used for many years as a tray by which the people living on liarles-fan’s green approached their dwellings from Ashley river 5 but this alone would not constitute a highway ; for a way leading from a highway, and terminating at a private house or in a particular neighbourhood is not a public, but a private way, for the stopping of which an indictment will not lie, (1 Hawkins, 367;) but a thoroughfare or way leading from one highway to another, is a highway, the stopping of which is a nuisance, for which an indictment will lie. (5 Taunton, 125.) There is no doubt that Ashley river is a highway, and as little that Lynché’s-ttreet is one. If therefore Gumming's creek be a thoroughfare between Ashley river and Lynché’s street, or any other street equally a highway, a stoppage of it is a nuisance, for which the proper remedy is indictment. The witnesses however appear not to have distinguished between a public and private way, and only one, and he incidentally mentioned that there was a public landing place at the extremity of Lynchs’s street on Gumming1 s creek. If this fact had been fully proved, or had it been distinctly submitted to the jury, and they had thought proper to find the verdict they did, I should have been unwilling to disturb it; but sis there is some doubt whether the jury ever regarded the ^existence of this fact as important in the case, and as no injury can result from another trial, and much consideration 35 due to the public interests involved, I am of opinion that the motion for a new trial ought to be granted.

Justices Watt, Bay and Johnson^ concurred.

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Bluebook (online)

12 S.C.L. 404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-duncan-sc-1821.