Is the obstruction of the alley in question a wrong of such a public nature as may be redressed by indictment, as a criminal offense at common law? This is a prelimiminary question, and must be disposed of before we can reach any of the questions raised by the bill of exceptions. This information simply takes the place of an indictment, and must stand or fall by the same rules.
To make an obstruction like this an indictable offense, it must injuriously affect some public right — some right in which the public, in their aggregate capacity, have a common interest, as distinguished from a mere individual or private right. If it affect only the rights of an indi» vidual, or of a definite number of persons less than the whole, in their individual capacity, the several persons actually injured have their remedy by private action; but no indictment lies. — 4 Blk. Com. 5; 1 Bish. Cr. L. §348. Of course it is not necessary, in order to maintain an indictment, that all should be actually injured; but the tendency of the act must be to affect injuriously a right which all are entitled to exercise if they see fit.
The difference between these two classes of rights is easily comprehended in the abstract, and in most of the cases actually arising; but in the almost infinite variety of •cases which call for the distinction, these two classes of rights will be found to approach each other by such in sensible gradations, and to be sometimes so intimately blended, that it will be found, in some cases, extremely difficult to decide which predominates and gives character to the particular case. All can readily distinguish the primary colors in the rainbow; none, the precise line which •divides them.
Where public and private rights so nearly approach *446each, other, individual cases only can serve to illustrate the distinction; and each case must he decided upon its own. peculiarities.. — See Rex v. Turner, 13 East, 228; Rex. v. Richards, 8 T. R. 634, 726; State v. Baldwin, 1 Dev. & Bat. 195; Rex v. Medley, 6 C. & P. 292; Commonwealth v. Haynes, 2 Gray, 72, 74. See also Commonwealth v. Webb, 6 Rand. 726, which well illustrates the distinction, though it may be doubted whether it was properly applied in that case, where the wrong was one affecting the health, and consequently might be said to endanger the lives, of' persons.
This information shows no right of the public at large-affected by this obstruction, unless the place obstructed is shown to be a public way, or a highway; for- the right of “using" the “alley” for any other purpose than that of passage or travel by the public generally, can not be recognized as a common public right, without some averment showing the special nature of the use to which the public are entitled. Had the place been alleged to be “ a public square” in the city, this might, perhaps, have suggested some definite idea of some other public use besides that of passage or travel. But if the terms “pub-, lie alley” could, ex vi termini,n import a public right of passage, they certainly do not necessarily import any other species of public right; and if any other existed it should have been averred.
Was, then, the aley in question, at the place of the ob-. struction, a public way, or highway? To constitute such highway it must be one over which .^all the people of the state have a common and an equalV, right to travel, and which they have a common, or at least, a general, interest to keep unobstructed. This principle is ^c^amiliar as lábdly to need the citation of authorities. See however Roscoe’s Cr. Ev. 562 to 566; 1 Russell on Cr. 320; 1 Bishop Cr.. L. §353.
If it be a way the obstruction of which can prejudice, *447only the rights of the owners or occupants of adjoining lots, they have their remedy by private action'; if it affect only the rights of the inhabitants of the city, or the rights of the city in its corporate capacity, it may be a proper subject for the local police of the city, to be regulated by ordinances and by-laws. But in neither case would it be a proper subject for an indictment.
This information does not allege the alley to be a public-way, or highway'; this would have shown the public interest, and the public right injured by the obstruction. But, the terms “public alley,” have not, like “highway,” any fixed and definite legal meaning. It is, therefore, veryi questionable, at least, whether the information upon its face sets forth any criminal charge. — See Commonwealth v. Webb, 6 Rand. 126.
But, I do not propose to consider the case upon this narrow ground. We have before us, with the information, all the evidence in the, case, and the plat or plan of the city as laid out by the Governor and Judges.
I shall, therefore, give to the prosecution the benefit of the assumption that the information sufficiently describes the place as a highway; that the alley was originally laid down as shown by the plat; that it has never been altered by any public authority; and that the dedication of the alley as shown by the plat, has been accepted in accordance with its original design.
Looking to the map or plan of the city, we discover ' numerous open spaces designated as streets/ connecting with, and intersecting each other through the whole plan, obviously intended, not for the particular accommodation of any particular lot or lots only, but as common streets or thoroughfares for general public passage and travel. These streets divide the area of the city into a great number of sections or blocks, of various shapes and sizes, generally again subdivided into lots, designated by numbers, and fronting on these streets. Through some -of these sections or blocks, *448we find other narrower open spaces, evidently designed for alleys, furnishing a means of access to the rear of the lots. In some of the blocks these alleys do not pass through, from street to street, but stop short in the middle of the block; forming no connection from one street to another. Section eight, in which the alley now in question is situated, is nearly square, and bounded by streets on each of its four sides, and containing eight lots, each fronting on a public street, and the four corner lots each bounding on two streets. From the street on the east, the alley runs in west to the centre of the section; at this point it meets an alley coming in from the street on the north, which alley, from this point of junction, deflects to the south-west just the width of the alley, and then continues south fifty feet to the line of lot one, where it stops without communicating with any street, alley or passage whatever. This extension of the last named alley, from the point of junction above mentioned, thus forming a cul de sac of twenty feet in width by fifty in length, in the interior of the block, and, of course, in the rear of the adjoining, lots, and opening only into the alley at the junction already mentioned.
It is for an obstruction in this recess, or cul de sac only, and not in any part of an alley forming a passage from one street to another, that this prosecution is brought.
Now, looking at the , plat, and the uses for which alleys are usually designed, it is difficult to 'believe that even those alleys which pass through a block or section, forming a continuous passage from one street to another, were ever designed or intended as highways, for the purpose of ordinary travel by the public at large. But they would seem to have been intended especially for the convenience of the particular lots in the rear of which they run, and as a means of access to the rear of such lots, for purposes not so conveniently attained from the streets in front; and therefore, as an easement appurtenant to the adjoining lots. As such, the owners and occupants of all *449the adjoining lots would, doubtless, be entitled to use them in common, each for purposes connected with his own lot; no one having the right, as against another, to close or unduly obstruct such alley. Besides these individual rights, the city, in its corporate capacity, may,- perhaps, under its charter and ordinances, for the purposes of regulation and police, possess certain rights and powers in or over the alleys, and it may be, also, the right to open them, and even to prohibit their being obstructed or closed. But it is difficult to see what public right or interest of the state at large would be prejudiced by closing or obstructing such alley; unless, indeed, by actual user as such by the public, it might have become a highway or channel of public travel. But in the absence of proof of such, user for a sufficient length of time, I am strongly inclined to the opinion that they can not be treated as highways for any purpose. But upon this I give no definite opinion, as the present case does not call for it; since this alley, at the place of the obstruction complained of, is entirely incapable of forming a passage-way from one street to another, and was evidently designed only for uses peculiarly connected with the rear of the adjoining lots. Nor, in the nature of things, is it susceptible of becoming a thoroughfare by actual use. But, it is said, it may be a highway without being a" thoroughfare (that is, without passing through from one street or highway to another). That a street or way may be a highway without being a thoroughfare (that is, without connecting with a highway at both ends, or at either end), I am not disposed to deny; as, for instance, a street running across a city from side to side, and terminating at the city line at each end, without connecting there with any other street or highway, but intersected at various points in its course by other public streets; the portion at each end beyond where it is intersected by any other streets, though forming a cul do sao, if dedicated or laid out by the public authorities for the pur*450pose of a street, actually opened, used and traveled as a street, -with dwellings fronting on both sides, or either side, would, I think, be as much a highway as any other part of the same or any other street. It would not only form the ordinary means of access to the houses along such part of the street for the particular inhabitants, and for all others who might wish to call upon any of the inhabitants for any matter of business, but the people at large would have the right to travel, ride, or walk there, for pleasure or amusement. The same considerations will apply equally to roads in the interior of the state. And in a new, unsettled country, just beginning to be penetrated by j>ublic roads, the consequences would be serious in the extreme, if no road could be treated as a highway beyond where it is intersected by others. I am, therefore, compelled to doubt the correctness of the decision of the Supreme Court of New York, in Holden v. Trustees of Cold Spring, 23 Barb. 103. See 2 Bish. Cr. Law, § 1048; Angell on Highways, §137.
But the case before us is very different. The cul de sac, or part of an alley, here in question, was never intended to be dedicated as a highway, was never laid out as such by the public authorities, never opened or worked as such; nor does it appear that any dwelling was ever erected adjoining it, to which it served as means of access; and if it were possible to become a highway by user, there was no evidence from which the jury could have found such user, had the question been left to them. But they were expressly ¡instructed that no user was necessary, even to make it a public alley — the court, it would seem, considering a public alley in the light of a public highway. This case, therefore, is not supported by that of the Trustees of the Rugby Charity v. Merryweather, 11 East, 375, note, nor by that of Bateman v. Bluck, 14 Eng. L. & E. 69, upon which the counsel for the prosecution mainly relies. The first (11 East, 375, note,) was an action of trespass for removing an obstruction in *451a common street, which, however, was not a thoroughfare-, by reason of the houses at the end. Lord Kenyon said, “As to its not being a thoroughfare, that can make no difference;” and, upon principle, I think he was right, notwithstanding what is intimated to the contrary in Woodyear v. Hadden, 5 Taunt. 125, and in Wood v. Veal, 5 B. & Ald. 454. In the case of Bateman v. Stuck, the locus in quo was a passage leading from the public street up to a court, called Hat and Mitre Court, which consisted of fourteen or fifteen houses, belonging to the plaintiff. The passage had always been lighted by the public authorities of the parish, and had been paved by the authorities at the request of the plaintiff. There was evidence of user as a highway; and the jury had found it to be such. The only question for the court was, whether, as a legal possibility, there could be a highway where there was no thoroughfare; and the court held, very properly, I think, that there might be.
It is. easy to see that a way, or cut de sac, which forms the usual route of travel, or means of access, to the fronts of a number of dwellings, stands upon a very different ground, in respect to the question of user as a highway, from one which leads only to the rear of lots fronting on public streets. The former constitutes the ordinary means of passage between these dwellings and the world at large; not only for the occupants, but for all others who may wish to call upon them for any purpose, or all purposes generally; while the latter can only be used as a passage for purposes connected with the lots themselves. In the first case, the use is for general pun poses, and may, therefore, be a public convenience; in the latter, its use is directly connected with the use of the lots, and essentially appurtenant to them, and therefore of merely private convenience; and if all the adjoining owners see fit to close it, it is not easy to see how the public at large can be injured. If one, or a part, of the adjoin*452ing owners, close it without the consent of another, that other, in a proper case, has his individual redress by suit.
Whether, therefore, we look to the information and the evidence together, or to either alone, we can see no ground for holding the place in question a highway. No public prosecution, therefore, can be supported for the obstruction complained of. This conclusion disposes of the case.
The verdict should be set aside, and the information dismissed. Let it be so certified to the Recorder’s Court.
The other Justices concurred.