United States v. Schwartz

instructed the jury, at the prayer of the defendant’s counsel, that if they should be satisfied by the evidence, that the road was laid out or reserved by General Forrest, in sellirig out the lots of his land, as a road for the. accommodation of the lot-holders under his sales, and not as a common highway, then the obstructing of the road is not properly the subject of indictment. And further, that if they should be satisfied by the evidence, that the road was intended and laid out by General Forrest for the accommodation of the lot-holders who purchased under him, then the circumstance that the public might pass over it, does not make it a public road.

Mr. Swann then prayed the court to instruct the jury, that if they should be of opinion that it was laid off and dedicated by-U. Forrest, the original owner of the lands through which the said road passed, as a public road, and has been, ever since, used as such, then it would be competent for the jury to consider it a public road and common highway.

But THE COURT (THURSTON, Circuit Judge, contra) refused to give that instruction; but instructed the jury that there could be no public road in this county, out of the cities and towns, unless it be recorded as such in this court or the levy court. See Act Md. 1704, c. 21.

Verdict for the defendant.