
    Edward Barnwell vs. John Magrath.
    The erection of a gate across a way, claimed by the plaintiff, which is opened and shut at pleasure hy all who pass, is not such an obstruction as would have the effect to extinguish the plaintiff’s right, or of barring him of his remedy, however long it may have been erected.
    Before O’Neall, J., at Charleston, May Term, 1840.
    This was an action on the case, for obstructing the plaintiff’s right of way, leading from his farm along the line of the defendant to the Ship Yard creek.
    In 1794, Col. Shubrick, who was then the owner of most of the land and lots, which he had laid out as the village of Belvidere, and Jolm Edwards, Henry Grant, and Thomas Simons, who then owned the'three lots now composing the defendant’s farm, agreed to shut up all the streets which had been laid out, and to open the street, or road, leading from the public road to the Ship Yard creek. This road is designated in all the deeds by which the defendant’s and the plaintiff’s land was conveyed. In the deed to the defendant, the road is referred to as his boundary, and called a public road. From the Charleston road to the boundary of the defendant’s land, there is no doubt the road is public, (although it was not ^worked by the commissioners of cross roads,) both from the r*1l7r original dedication, and the subsequent public use of it. But L frorn the boundary of the defendant’s land to the Ship Yard creek, the way is private. It was used by Edwards, Grant and Simons, and those claiming under them, and by Mr. Johnson and Mr. Glenn, under whom the plaintiff claimed. As far back as the witnesses could remember, more than forty years ago, a gate was erected, and has ever since stood across the road. Mr Johnson, one of the former owners of the plaintiffs land, used the road from 1821 to 1825 ; but at and during that time, he had the use of the defendant’s farm, by the consent of Mr. Fitzsimons, its then owner. Mr. Glenn, who succeeded Mr. Johnson, used it for two or three years, as a matter of right; his right to so use it was then denied, and then he applied to, and obtained permission from the defendant, to use it. In 1829, the defendant put up the gate complained of as an obstruction, at the place where it had formerly stood. This gate, and the other which preceded it, were fastened with a latch. It is a great convenience to the plaintiff to pass through the gate to the defendant’s landing on Ship Yard creek. He was allowed to pass until he claimed it as a matter of right; the gate was then shut and locked. This was shortly before suit.
    The case was submitted to the jury, and they were told that there was no doubt about the original dedication of the road to the public ; but the public had not used that part from the defendant’s gate to the Ship Yard creek That portion of it was made private by the erection of the gate, and the use of it exclusively by particular persons. The plaintiff could not claim the way by use. For Johnson’s use was in the defendant’s right as well as his ; Glenn’s use was for so short a period that no right could thence arise. That the plaintiff must stand upon the defendant’s deed as a concession of the way in 1828 ; but in’29, the defendant’s gate was erected, and if the jury believed that that was an appropriation by the defendant of the way to himself, and a denial of the right of others to pass over it, then, I thought, and so said to the jui\y, that after four years from the erection of the gate, the right of way was gone. Por after that time the remedy by action was gone. The jury found for the plaintiff the way, with a gate in it, and $12.84 damages.
    *The defendant appeals,
    1. Because there was no evidence to establish either a public or private way. That as to the public right, the evidence proved that there was no dedication to the public ; and as to the private right, there was no evidence of grant, prescription, or necessity.
    2. That the evidence was clear, of a continued obstruction for the period of forty years, or upwards. And there was no proof of use by any person adversely to the parties through whom the defendant claims.
    3. That the plaintiff was barred from recovery by lapse of time.
    4. That the verdict was, in other respects, against law and evidence.
    
      A. G. Magrath, for the motion,
    said: A new trial must bo granted, as there is nothing upon which the verdict can rest. There is no right of way, neither public nor private. It is not a private way. There is no grant of it as such. If the grant or deed between Shubrick and the other land holders, occupants of the property now owned by the defendant established anything, it establishes a public road. There is nothing in the deed to support the claim for a private way. Nor can the parties claim the right by prescription. Prescription for a private way, requires, 1st, private and exclusive right: 2d, twenty years adverse possession. (1 Bail. R. 342.) It supplies a grant, and is the effect of use and time, (2 Idiomas’ Coke, 233.) There is no evidence of either of these requisites. Is the road public? It is claimed by the deed; but the deed cannot make the road. The use consecrates the right proposed by the deed to be given, (2 Bay, 287.) Besides the intention to give, there must be evidence of acceptance. A dedication to the public must be proved. Dedication is a thing distinct from the deed. It is additional. Here, there is no evidence of dedication. The road never was used. From the earliest period the obstruction was there. This, of itself, repels the presumption of dedication. Any circumstance will rebut it. As erecting a bar, Roberts vs. Kan, (1 Campb. 262; 3 Saunders, 175, note F.) So far from there being ground for presuming dedication, the presumptions are quite the contrary.
    *What evidence is there, that any act was ever done under the deed, to make this a road? None. The earliest evidence is that which rebuts the idea of a road. Lord Kenyon had said in The Reyly Charity vs. Merriweather, (11 Fast, 375,) that the use for six years proves the dedication. There is no such proof here.
    Where has Barnwell attempted to show the use of the road by those through whom he claims? All who preceded him used the road not as a right, but as a favor. Such a use never gives right. The use must be adverse.
    But, even admitting a right originally, has it not been interrupted or abandoned more than twenty years ? If the right ever was in him, it is gone. (15 Mass. R. 125; 1 B. & P. 400; Yard vs. Ford, 3 Saunders’ R. 174, note 2.) Non-user, coupled with the assertion of a right to intercept the user, for more than twenty years, will extinguish the claim. As to the statute of limitations, four years have elapsed since the obstruction, which is the cause of action. The plaintiff is consequently barred of his remedy. As far back as 1829, the defendant asserted his exclusive right against the then owner of Barnwell’s land, and forty years and more have elapsed since the obstruction. No evidence that at any time the obstruction was not there. This case is then clearly within the mischief of the statute, as well as within its letter and equity.
    But, it is said the deed of the defendant calls for this road as a boundary. Does this amount to more than that in 1829 the defendant agreed to open the road? But he did not open. He refused to dedicate ; of course no right vested in any one. (2 Bay, 287; 1 Campb. 262.)
    
      Mc Cready and Mazyck, contra,
    said that a right of way was a hereditament. Cited, 2 Brev. Dig. 21, 22 ; 3 Kent 359 ; 2 Fv. Po. 136.
   Curia, per

Earle.

The verdict of the jury has established, that the plaintiff had a right to the private way which he claimed. It is not material to the determination of the question, made on the motion for a new trial, to inquire how the right was first acquired. The agreement between Col. Shubrick, under whom plaintiff derives title, and the three persons

who then owned the premises now held by the defendant, first *gave rise to the way in question ; and is supposed to have been a dedication of it to the public. But as the attempt to build up the village of Belvidere proved abortive, there was no public to acquire the right of way there, by actual use, which was confined to the covenanters themselves, and those claiming under them. The use was strictly private, and seems to have been continuous for more than twenty years. The land on which the way lies, belonged to Shubrick. It is not the case of a private way over another’s land, and of an obstruction by the owner. Shubrick dedicated the way, or granted the right to use it, to Edwards, Grant and Simons, from whom the defendant derived title, and to all others, as the street or road of Belvidere. The plaintiff derives title from Shubrick, to a portion of the, same lands, composing Belvidere, to which the way was appurtenant, and may be said, therefore to have the right of way, by express grant, or by necessary implication. We cannot suppose the absurdity in a legal point of view, that Shubrick, by granting to others a right of way, should deprive himself, and those holding under him, of the right to use the way.

See State vs. Peterst 7 Rich. 393. An.

The defendant’s title deeds and accompanying plats demonstrate, not only that the way is not over his soil, but that the existence of it has been admitted by those under whom he claims, as well as by himself. The Court is therefore satisfied there is abundant evidence to sustain the plaintiff’s right of way.

This right, however, is supposed to have been extinguished by a long continued obstruction, and as the defendant’s gate was put up on the way in 1829, which was an appropriation of it to himself, and a denial of a right to others to pass over it, that the plaintiff’s right of action was likewise gone. No doubt a right of way may be extinguished in several modes; and especially the erection of a permanent obstruction, which necessarily hinders the exercise of the right, would operate to annihilate it. How long such an obstruction must be permitted to exist, in order to raise a presumption that will overthrow the right, or lose the remedy by action, we need not consider. The only question on this part of the case is, whether the erection of a gate across the way, which is opened and shut at pleasure, by all who pass, is such an obstruction as would have the effect to extinguish the right of way; and we *are clearly of opinion that it is not. It is a modification of the right, which may be prescribed; but it is not an obstruction that prevents or hinders the use of the way ; and, therefore, however long continued, would not have the effect of extinguishing the right, or of barring the remedy.

In Capers vs. Wilson, Mr. Justice Nott expresses a doubt whether a gate of that kind would be such an obstruction as would give a right of action. We think, therefore, that the verdict is right, and the motion to set it aside is refused.

The whole court concurred. 
      
       See 3 Strob. 226; 6 Rich. 298. An.
      
     
      
      
         3 McC. 174. Am.
      
     