
    
      Henry Gibson vs. John W. Durham.
    
    The use of a road for twenty years through the uninclosed land of another, will not, of itself, give a right of way by prescription. There must be proof that the use was adverse : and proof that on one occasion the party claiming the road had caused to be removed from it a few saplings that had been felled across it, is not sufficient evidence that his use was adverse.
    
      Before Frost, J. at Fairfield, Bpring Term, 1846.
    The report of his Honor, the presiding Judge, is as follows :
    “This was an action on the case for obstructing a road. It passed from the plaintiff’s plantation to Peay’s ferry road, (a public road,) in part, for the distance of two or three hundred yards, through woodland belonging to the defendant. About two years ago the defendant cleared the woodland, and by the enclosure of it obstructed the road. The proof was, that the plantation, as appurtenant to which the plaintiff claims the road, formerly belonged to Picket. Twenty-three or twenty-five years ago, Picket used the road as a wagon way to the public road, and it seemed that the course of it had not materially been varied. The continuous use of the road was proved from the time Picket owned the plaintiff’s plantation, till it was obstructed by the defendant. When Picket was owner some saplings were felled one night across this road, and the public road obstructed in the same manner. This was not done by Durham, nor for the purpose of interrupting the right to the use of the road, but was supposed to have been done, in frolic, by some of Picket’s friends, on the occasion of his marriage. The saplings were cleared out of the road the morning after they had been cut down, by Picket’s overseer, that Picket might pass along it on his way home. This was the only act or circumstance indicating an adverse claim to the use of the road, by Picket or by any person claiming under him. A road had been cleared by Picket to the Union road, about the time the first use of the disputed road was proved, which was soon discontinued. He had also a bridle path to the Chester road, across the land of Harrison. The plaintiff owns Harrison’s land, and may make a good waggon road in that direction, over his own land, to the Chester road.
    On this proof the plaintiff was tion-suited.”
    The plaintiff appealed, and now moved this court to set aside the non-suit, on the following grounds :
    1. That the fact of opening a road through the woodland of another person to a given plantation, is such an assertion of right on the part of the owner of the plantation, and such a trespass as authorizes the owner of the woodland to sue; and that the continuous use of said road for twenty years, confers a right of way on those using the road as appurtenant to the plantation to which it is opened.
    2. That the opening a load through woodland is a very different operation from riding or hunting through woodland, and that although the latter practice may be tolerated on account of the situation of the country, the former act is a trespass which can be presumed to originate only in a claim of right.
    3. That the road in dispute having been extended only from one plantation to a public road, and having been used for upwards of twenty years, and kept open and in repair by the owners of the plantation, was strictly a private way, without any pretext of being a neighborhood path, and it is submitted that the non-suit decides that no private right of way can be acquired through woodlands.
    4. That the evidence showed every act of ownership in keeping the road open which the nature of the ground required, and the question of adverse user should,.under the evidence in this case, have been submitted to the jury.
    
      McCall, for the motion.
    Boyce, contra.
   Curia, per

Evans, J.

Very little need be said in this case. The rules of law regulating private ways have been very fully considered in a series of cases heretofore. By these, it is clearly settled that the use of a road through the uninclosed land of another, will not, of itself, give a title by prescription. There must be something adverse in the use to give title; (Sims vs. Davis and Tygart, Chev. 1; Nash vs. Peden, 1 Sp. 17.) In this case there was no proof of any act shewing that the use was not permissive. Every thing proved was consistent with the title of the owner of the land. There was no evidence that the plaintiff, or those under whom he claimed, had opened the road or worked on it, or had done any thing which indicated that he claimed the way as a right.. The removal of the saplings by his overseer cannot be -so regarded. A similar act had been done in Nash vs. Peden, which the court regarded as wholly insufficient to establish adverse use. The only question about which any difference of opinion can exist is, whether the evidence should not have been submitted to the jury. If it had been, and the jury had found for the plaintiff, a new trial must inevitably have been granted, as was done in the case of Nash vs. Peden, before referred to. There was nothing to refer to the jury. The facts were clear, and the question was one of law, whether the plaintiff had established any right to recover. The jury might have conjectured that, as the road terminated at the plaintiff’s house, the former owner of the land had laid it out. But he who claims an easement on another’s land, must establish it clearly: the proof must amount to something more than conjecture or probability.

The motion is dismissed.

Richardson, O’Neall, Butler, Wardlaw and Frost, JJ. concurred.  