State v. Price

Cochran, J., delivered the opinion of this Court: This case was brought up by writ of error from the Circuit Court for Harford County, tho defendant in error, having been indicted for obstructing a highway. The indictment contains two counis, one of which describes the obstructed road as a “common highway, leading from “Sarah. Standiford’s gate toward the Baltimore and Philadelphia turnpike, to the house known as Berry’s house;”, and the other as a “common highway leading from Sarah Standiford’s gate toward the Baltimore and Philadelphia turnpike.” The defendant in error, for special matter of defence, pleaded, that on a petition of certain citizens for a continuous road from the Bel Air and Abingdon road to tho Baltimore and Havre de Grace turnpike, the county commissioners ordered the road, laid out in conformity with the petition, to be opened from Standiford’s gate to the turnpike; but that said road never was opened except from Standiford’s gate to Berry’s bouse, andtbatno supervisor was ever appointed thereon; that the portion of the road so opened commences on private property, where there is no connecting public thoroughfare, mill, market, church or limekiln, and, passing through private property, ends at the distance of one hundred and forty-four perches from ⁴⁵⁴ the turnpike, without any where connecting with any public road; and that, by reason of these premises, the obstructed road is not a public highway. The replication to this plea states, substantially, that the road in question, was opened from Standiford’s -gate to the turnpike, on a distinct petition therefor; that it had been used, with the assent of the defendant, as a public road for twenty years; that there were limekilns in the vicinity of Standiford’s gate; and that the public had means of access, both from the Abingdon road and the turnpike, to the road between* Standiford’s gate and Berry’s house.

To this replication the defendant filed a demurrer, which was sustained and judgment entered accordingly. The effect of the demurrer was to bring all the pleadings into review, and it was the duty of the Court below, as it is ours here, to pronounce against the party guilty of the first error. We think it proper however, before disposing of the case on the pleadings, to state briefly our views on the question as to the character of the road, to which the pleadings refer.' Assuming that it was opened from Standiford’s gate to the turnpike, as alleged in the replication, we are of opinion that it should be taken and considered as a public road, and that the willful obstruction of it would constitute an indictable offence. The county commissioners had authority, under the Act of 1822, ch. 18, to open, on petition, any new road which in their opinion would conduce to the advantage and convenience of the public; and, we think, whether