#### THE STATE vs. JASON H. HUNTER.

Where a road has been used by the public for twenty years, without obstruction or hindrance, a grant from the owners of the land, over which the road passes, may be presumed.

Where a person, who occupies a tract of land, over which a public road runs, keeps up a fence across the road, though he did not originally erect it, he is liable to an indictment for a nuisance.

The cases of The State v. Marble, 4 Ired. 318, and The State v. Pollok, 4 Ired. 303, cited and approved.

Appeal from the Superior Court of Law of Macon County, at the Spring Term, 1845, his Honor Judge Manly presi_ ding.

The defendant was indicted for the obstruction of a road in Macon County, leading from Franklin towards the Tennessee line. . A witness was called to testify, that he had lived near the road for 15 years, and during that time it had always been used as a public road, and that it was reputed to have been so used from its first construction. The nature of the soil rendered it difficult for the witness to make up any accurate opinion of its age, but he thought it might have been used for 10 years or more, before he knew it, or it might have been only five. Another witness testified to the same in substance. The evidence further established, that the defendant was resident upon, and the owner of, a plantation, over which the road ran, and that his servants, when he was not actually present, constructed a fence in the road, so as to prevent the passage thereon.

It was objected by the defendant’s counsel that he could not be convicted: 1st. Because the road was not sufficiently shewn to be a public road; 2dly. Because he was not present at the construction of the nuisance.

The court instructed the jury, that it was not necessary, in all cases, to shew a proceeding in court, for the purpose of *370laying off and dedicating a road for the public use; that, if it kad been, in point of fact, used by the public for 20 years or more, it would be sufficient. A grant from the owner of the janc| j-,e presumed after that lapse of time. And it was submitted to them to inquire, from the evidence, whether the road had been used that length of time as a public road, without obstruction by the defendant or any, under whom he claimed. On the second point, the court told the jury, that the defendant might be convicted, although he was not present, aiding or assisting in the erection of the nuisance, provided they should find from the evidence, that he had either commanded it to be done, or, after it was done, had kept it up, using the field for the purpose of agriculture, and continuing the fence around it for that purpose.

The jury found the defendant guilty, and, judgment having been pronounced accordingly, he appealed to the Supreme Court.

Attorney General for the State.

No counsel for the defendant in this court.

Daniel, J.

The court charged the jury, that, if the road had been, in point of fact, used by the public, without obstruction or hindrance for twenty years or more, a grant from the owners of the land, over which the road ran, might be presumed after that lapse of time. This part of the charge, we think, was correct; and it was as favorable to the defendant as he had any right to expect. State v. Marble, 4 Ired. 318. Secondly, the court charged the jury, that, if the defendant had either commanded the nuisance to be erected, or after it was done, he had kept it up, using the field for agriculture, and continued the fence around it for that purpose, he was guilty. This part of the charge, we think, was also correct. In the case of the State v. Pollok, 4 Ired. 303, the proprietor of the land (where a gate had unlawfully been erected across a public road) sold it to A. who never actually entered into the land, but leased it to others as his tenants, who kept up the gate. This court said, that the tenants who used the *371gate by keeping it closed and impeding the travel, were no doubt guilty. The judgment must be affirmed, and this opin-' ion certified.

Per Curiam, Ordered to be certified accordingly.