
    
      John W. Payne vs. John Williams.
    
    1 A testator, who for more than twenty years had used a way over his own land by which a highway was reached, except for a short distance over a neighbor’s land, died in 1831, having devised his land io his three sons, C, W and B, equally to be divided between them. The sons made partition between themselves, and without deeds from one to the other, severally took possession of their parcels under a bond for titles. W. acquired the parcel on which the house stood, and sold to the plaintiff; C. that next the highway, through which the way ran, made a lane, and sold to defendant, who, after permitting the lane to remain open for some time, dosed it up entirely, after which plaintiff brought case for the obstruction.
    Held, 1st. That whilst there was unity of possession in the testator no right of way arose.
    2nd. That since the partition the time had been too short to confirm any possession or verbal acknowledgment that had occurred in that time.
    
      Before Wardlaw, J. at Newberry, Spring Term, 1843.
    This was an action on the case for obstructing a way.
    There was some testimony as to the nature of the way, its frequent changes, and as to other ways more convenient to the plaintiff: but to understand the ground of the non-suit, which was ordered, all this is now unnecessary.
    David Bozeman, in his lifetime, had lived near the South-Eastern corner of a tract of land, and for more than twenty years used a way from his house along the Southern line of his land to a corner, and thence Nortb-Westwardly through his own land to a point near the public highway, from which point, through some neighbor’s land, the highway was reached. He died in 1831, having by his will devised his land equally to be divided between his three sons, Cooper, Whitfield and Bainbridge. The sons made partition between themselves, and without deeds from one to the other, severally took possession of their parcels under a bond for titles. Whitfield acquired the parcel upon which the house stood, and sold it to the plaintiff. Cooper acquired the parcel next the highway, through which the way ran, made a lane, and sold it to defendant. The other parcel belongs to the heirs of Bainbridge, now deceased.
    
      The defendant, after permitting the lane to remain unobstructed for som,e time, no dates being given, besides those here mentioned, shut it up so as entirely to prevent the plaintiff’s use of the way in question.
    Upon a motion for non-suit made, his Honor held that whilst there was unity of possession in David Bozeman, no right of way arose : that the time since his death was insufficient to create the right; and that no expression or necessary implication of a right conveyed by Cooper or the defendant to Whitfield or the plaintiff, was made to appear. The proof disposed of the question as to a way by necessity. Non-suit ordered.
    The plaintiff appealed, on the following grounds.
    1st. That the lands over which the road in dispute runs, having been devised by David Bozeman to his three sons, David C. James W. and Bainbridge, and the road being in use at the time, and having been used long before the partition of the land, each of the sons acquired by the partition a right to the road as against each of the others.
    2nd. That David C. Bozeman, under whom the defendant holds, acknowledged the right of James W. Bozeman, and of the plaintiff, who holds under him, to the use of the road, by making and continuing, as long as he held the land, a lane through a considerable part of the land.
    3d. That the plaintiff is entitled to the right of way by necessary implication from the partition of the land, and his right was tacitly acknowledged by David C. Bozeman.
    4th. That the plaintiff is entitled to the right of way from necessity.
    5th. That, as it is respectfully submitted, his Honor ought to have allowed the case to go to the Jury.
    Pope & Pope, for the motion.
    --contra.
   Caña, per

Ward law, J.

This Court concurs in the views taken on the Circuit.

It is plain that David Bozeman’s possession established no right of way against himself. Even deeds of partition between the sons would not have subjected the share of one to an easement in favour of the others, without some expression, or necessary implication from expressions used ; much less will an irregular partition shewn by a mere bond for titles containing nothing peculiar, do so. The time since the partition, has been too short to confirm any possession or verbal acknowledgments that have occurred in this time. The motion is dismissed.

Richardson, O’Neall, Evans and Butler, J J. concurred.  