
    
      Charles Watt vs. Zachariah Trapp and Laban Trapp.
    
    To give a right of way by prescription, the use of the way must be continuous. An use, therefore, in 1819, cannot be connected with an use in 1824, so as to give such a right.
    The mere use of a road through woodland, will not give a right of way by prescription; there must be some notorious assertion of right, such as cutting out the road, or working on it habitually.
    
      Before O’Neall, J. at Fairfield, July, extra Term, 1845.
    The report of his Honor, the presiding Judge, is as follows.
    “ This was an action of trespass for breaking and entering the plaintiff’s close, by throwing down his fences and passing through his field. The proof was clear and undisputed, that where a road, claimed by the defendant Zachariah, passed through the plaintiff’s plantation, his fences had been thrown down three several times by the defendants. They justified these several trespasses by pleading a private right of way through the plaintiff’s land, which he had obstructed by the fences thrown down.
    “ The land over which the way runs, and now owned by the plaintiff, was once the property of John Chappell, who died intestate, in 1835, leaving several minor heirs, some of whom are still minors. The land was sold for partition, and purchased by the plaintiff in 1838.
    “ William J. Augustine, under whom the defendant, Zachariah, claims, sold to Laban Chappell the land on which his settlement is, in 1819; in 1821, the said Laban Chappell sold or conveyed to Zachariah Trapp- — his possession, perhaps, commenced in 1820.
    “Augustine also owned the land of the plaintiff; the two tracts are separated by a tract which he conveyed to Christian Freshby, and which now belongs to some other person.
    “ While Augustine owned the land, he cut open the road for his own use, from his gin to the Columbia road; but there was no connection between the gin and the plaintiff’s place at that time, by any open way. Augus-line’s gin was in the centre of his plantation, and towards the plaintiff’s place was a large field inclosed and cultivated. Any passage was on foot and over the fence. In process of time, the road was used by the neighbors, by Augustine’s consent, to Freshby’s mill, and after several years, it was used by those owning the plaintiff’s place. In 1819, Laban Chappell rented to Freeman, and he hauled his crop along a part of the road claimed. In 1820, the present defendant, Zachariah, commenced the use of the road, but almost entirely as a bridle path. For there was a bad hill on the road, which prevented it from being used as a wagon way. As a wagon way, the use began in 1824 or 1825 ; and the land of the plaintiff, over which the road runs, was in woods, until 1889, when he cleared the field and shut up the road. He sent, at that time, a message to the defendant, by Mr. Bookman, to whom he said the defendant had a road through his field ; that he was weak handed, and he therefore proposed to cut a way round for Trapp, until Fall, when he would put up gates. This was assented to, and gates were put up, and continued for two or three years, when they were taken away, and the passage stopped by continuous fences. In 1887, the defendant’s overseer, by his orders, cut a log out of the road, and dug down a bank or two on the plaintiff’s land. The defendant has another road by which he can reach his settlement.
    “It seemed to me that the defendant had failed to make out any right of way by prescription, in several respects; 1st. from 1819 to 1835, the death of John Chappell, when the minority of his children would arrest the prescription, was only 16 years. But, 2d. allowing it to run on notwithstanding their minority, the use of the road as a wagon way began in 1824 or 1825, and the final obstruction was in 1843, so that, altogether, nineteen years had only elapsed. 3d. The fact that the plaintiff’s land was woodland, and no tortious act of occupation shewn, unless it was the working in 1837, when the land belonged to minors, prevented the accrual of the right by prescription. The only fact on which I thought the defendant could rest, was the message sent by the plaintiff by Bookman, and the subsequent erection of gates. This was strongly presented to the jury, and they were told, if this was not done by the plaintiff in ignorance of his right, or as a mere act of courtesy, that then it might be regarded as a recognition of the defendant’s right of way. The jury were told that a right of way, to be prescribed for, must be exclusive in one or more persons. That one man could not prescribe for a settlement road, on the ground that he, in common with others, used it. But he must shew a private use of the way for himself, or for himself, and others, and then the private right of way might attach. Notwithstanding my opinion of the facts as I have stated, yet the whole case was submitted to the jury, upon the length of time, the use of the way, and every other fact in the case.”
    The jury found for the plaintiff. The defendants appealed, and now moved for a new trial, on the ground of error in the instructions of the presiding Judge.
    Buchannan, for the motion,
    Gregg, contra.
   Curia, -per O’Neall, J.

In this case it is wholly unnecessary to consider the question whether the minority of John Chappell’s children would or would not arrest the prescription. For it is plain that the defendant, Zachariah, has, in no point of view, any right of way by prescription, He claims a wagon way. To say that he rode through the plaintiff’s woodland for any length of time, would not enable him to prescribe for a bridle path, much less could it be the beginning of a prescription for a wagon way, The first use of the road as a wagon way was by Freeman, in 1819, and it ought to be noted, that although he used a part of it, yet that that part was not on the plaintiff’s land, but on Freshby’s, now Free’s, land, so that it could not affect the plaintiff’s rights. But if it had been on the plaintiff’s land, still there was no further use of the way until 1824 or 1825, and after such a lapse of time, the use in 1819 cannot be connected with that in 1824 or 1825. To give rise to a prescription, the use must be continuous, and it cannot be pretended that an use, with an interval of at least five years, is any thing like continuous. From 1824 to 1843, when the way was obstructed, is only nineteen years, and that is the end of any thing like prescription; for the period of time (twenty years) necessary to its completion has not expired. But the way, even for the time proved, ran through woodland; and it is perfectly clear that such an use is not enough. To give a right of way through woodland, there must be some notorious assertion of right, by an act done, which would be equal to a pedis possessio; such as, in Smith vs. Kinard, 2 Hill, 642, cutting out a road; or working upon it habitually, as is said in Sims vs. Davis & Tygart, Chev. R. 1. Here the only thing indicating a claim of right beyond the mere use, is the working on the road in 1837. One single act of that kind is not enough; but surely no inference or presumption in favor of the defendant can arise from a trespass committed on the land of minors. When this work occurred, the land belonged to the heirs of John Chappell, deceased, many of whom were minors.

In every respect, therefore, the defendant has failed, and this court, approving of the instructions of the presiding Judge to the jury in all respects, except as to infancy arresting prescription, (on which no opinion is intended to be given) and that not being at all important on the case proved, and the verdict meeting our entire approbation, the motion is dismissed.

Richardson, Evans, Butler, Wardlaw and Frost, JJ. concurred.  