
    William Worth vs. Amos Dawson and William Fowler.
    HroHWAT. Dedication. Right of Way. The mere license of the owner, to the inhabitants of a local neighborhood, to use a,pathway through hig close, at sufferance, as a matter of favor and convenience, does not operate as a dedication of the way to the public use. The doctrine that a right of way may he claimed, hy a dedication to the public use by the owner of the soil, must be cautiously admitted, as its too easy application would defeat the right of the owner of the soil to have compensation for the damages sustained by laying out a road over his land, to which he is entitled, where such road is laid out by the proper authority.
    FKOM COCKE.
    Tbe plaintiff in error, owned and occupied a field in tbe county of Cocke, wbicb bad been cleared and cultivated about fifteen years, through wbicb there was a path wbicb bad been used before and since its enclosure, by some of tbe neighbors' for a period altogether of nearly thirty years, as a mill and church path, also as a way to the village of Parrottsville. Some seven families in the vicinity had used the way, and had occasionally repaired it when it needed work. "When the field was enclosed, gates or bars were erected where the enclosure crossed the path on either side. The original proprietor of the soil, who enclosed the field, had been known to assist the neighbors in repairing the way. This action, which originated before a justice of the peace, was brought by "Worth against Dawson and Fowler, to recover damages for alleged injuries to his soil within the enclosure, by “ digging it,” for the purpose of repairing the way. It came into the circuit court by appeal, where there was verdict and judgment for defendants, (Hon. E. H. Hynds, presiding,) from which plaintiff appealed to this court.
    AeNold, Sneed and Temple, for Worth.
    The legal proposition, or series of propositions relied upon, are these:
    That from the character of the way, and as there were only a few persons who traveled along it, and that only for their private convenience, it never was a public road, but was merely a private easement or way.
    That the act of enclosing the field, and obstructing the road, was, $>w se, a revocation of the right to the easement.
    That the building of the fence around the field, and across the path, was sufficient notice of the revocation of the right.
    
      That tbe use of it afterwards, was merely by the sufferance and at the will of the owner of the field.
    That defendants had lost their right, if they had derived any from prescription, to the easement, by their long acquiescence in the obstructions to its perfect enjoyment.
    That they had no right to work on the road or way, since they acquiesced in the obstructions.
    That at most, they had only a right of passage as private individuals, a limited or qualified right of way, which communicated no right to go upon the soil, and dig it up or disturb it. See 2 Saunders, 921, near the bottom. 2 Greenl. Ev., § 664. 3 Rent, 432-3. 2 Blackstone, 27, note 28.
    ElbtChee, for Dawson and Fowler.
    The only part of the charge of the court seriously controverted in this cause, is that in which his honor told the jury, that “enclosing the field and erecting the gates was not per se, a revocation of the dedication.
    1. In the case of a public way, no length of time legalizes the nuisance. And this is trae as a private way, unless there be an actual abandonment. The erection of a gate is not conclusive evidence of a prohibition. 2 Greenl., § 664.
    2. In the case of a private way. “ Slight intermit-tance in the use, a slight alteration in the mode of enjoyment does not destroy the right. There must be evidence of a disclaimer or intention of abandonment,” 2 Greenl., § 665.
    
      3. A license may be presumed from silence and acquiescence. 1 Saund. PI. and Ev., 467. 1 G-reenl., § 197.
    4. Use of a way to establish the right, must be uninterrupted. The word interrupted must be taken to mean “stopped,” a cessation or chasm in the use, not a mere disturbance or annoyance.
    The defendants insist that they might admit that there was no public road, and no private way, and that the erection of the gates rebutted the presumption of dedication, yet that the jury were warranted in presuming a license, since the gates were erected, having exercised the right of repairing the road for fifteen years since the gates were erected, during which time no revocation or notice was made or given.
   By the Coukt.

There is no evidence in this record showing a dedication by the owner, of the way in question, to the use of the public; or of any such intention on his part. The proof establishes nothing more than a mere license, or permission, by the owner, to the inhabitants of a local neighborhood, to use the pathway, as a matter of favor and convenience. And such use, being only by sufferance, during the pleasure of the owner, he had the right to put an end to it at any moment.

No use or acceptance, of the way, by the public, is shown; nor any recognition of it by the proper authority, the county court.

That a right of way'may be claimed by a dedication to the public use, by the owner of the soil, is not denied; but, witb us, this doctrine must be cautiously admitted. Its too easy application would defeat the right of the owner of the soil, to have compensation for the damages sustained by laying out a road over his land, to which he is entitled, when such road is laid out by the proper authority.

It results, that the occasional use of the pathway in question, through the plantiif’s close, gave the defendants no right to dig or remove the soil for the repair of said way.

The judgment must be reversed, and a new trial awarded.  