
    *John Hogg vs. J. G. Gill.
    A right of way, hy prescription, implies an adverse use of the way for twenty years ; and the party using the way, must use it as though he was exercising a right of property in himself, uncontrollable by the owner of the soil over which it runs.
    Before Butler, J., at York, Spring Term, 1841.
    This was an action on the case, to try the right of way. The plaintiff claimed by prescription, and declared for a way from his residence to the Pinkney or Blairsville road. For a short distance, the road was through plaintiff’s land, who claimed under one Miller, whose daughter he married; and thence through defendant’s land, to the Blairsville road. In 1815, Miller bought the land oil which plaintiff resides, from James Gill. The land adjacent to it then belonged to defendant or his father, and the residue of the land on which the way run, belonged to Thomas Hogg, the father of plaintiff. At the time Miller settled, there was a winding bridle way through the above tract of land, leading to Blairsville. For the purpose of hauling his cotton to Blair’s gin, Miller cleared out the way in 1816 ; and after that time, he and the neighbors used it indifferently, in going part of the way to church and to the mill, as well as to the gin. The road to Harmony church, turned off not far from Miller’s house; some persons travelled it the whole distance, in coming to Miller’s mill, and Miller used it occasionally in going from his house to other mills. There was no evidence that the road had been worked on by any one in particular, after it was first cleared out by Miller. It was called the Miller road. In 1823, the defendant bought Thomas Hogg’s land, which made him, as before stated, owner -of all the land lying between plaintiff and the Blairsville road. About the time he purchased from Hogg, defendant cleared a field across the way, which was about seventeen years before this action was brought. When he put up his fence, he cleared out a road around his field. Some of the witnesses said he cleared out the way only to where his own road struck the field; others say that he cleared out a way round the field towards Miller’s. Upon this point, the testimony was irreconcilable. There was no objection made by Miller, at the time the field was cleared, that his way would be obstructed, nor *was there any evidence that the defendant had consulted him on the subject. About two years before this action was brought, the defendant run two fences across the road, and cut a ditch. Before he cut the ditch, he put up a gate next to Miller’s, on the line, about a hundred yards, at a right angle to the way. This he did for his own convenience in passing to his own plantation, and to accommodate the neighbors. The plaintiff objected to the gate, insisting that the old way should be opened, or a gate put on that. Defendant then asserted his right, by putting a ditch across the way ; and this action was brought. The plaintiff and those under whom lie claimed, as well as others, have been using the way for more than twenty years, and the question was, whether they have used it under such circumstances as to give the plaintiff a right by prescription. I charged the jury that as a right by prescription was founded on the presumption of a grant, the use of the way must be adverse ; that is, that the party claiming it, should enjoy it as though he had a right to do so under a grant, or at least in a way that would be consistent with the presumption of a grant. That if it appeared from the manner of the use, that the way was enjoyed by the sufferance and permission of the owner of the soil, or that the party claiming the way acknowledged by any concession the right to obstruct it, then the right by prescriptive use could not be acquired. I further said, that a neighborhood path, running entirely through woodland, as this did, should generally be regarded as a mere convenience to the neighbors indifferently. But that, nevertheless, a way might be acquired through forest land by prescription, when the claimant exercised such a control as to indicate a right to it. In the course of my remarks to the jury, I said that the presumption of right by prescriptive use, arising from a grant, would be lessened from the fact that many persons travelled the way indifferently, and that it passed over several distinct grants; and that it would be increased when the way was used by one, and passed over one entire grant.
    The jury found for the defendant.
    GROUNDS OF APPEAL.
    1. Because the case made by the evidence, clearly gave the plaintiff his right of way, as claimed.
    *2. Because his Honor erred, in saying to the jury, in his charge, that if they came to the conclusion that Hugh Miller used the way only by permission, that would be fatal to plaintiff’s right.
    3. Because his Honor erred, in saying to the jury that others using the way, was a presumption against Hugh Miller under whom plaintiff claimed.
    
      4. Because the Court charged the jury that it was fatal to the plaintiff's right to recover, if they believed that dill did not open a way for Miller round liis first field he cleared on the line of the old way; when that was only a slight change; and even if Hugh Miller had opened the way himself, and was thereby entitled to enjoy his right of way over the other, and main part of the road, this could not effect his, the defendant’s, right by prescription.
   Curia, per

Butler, J.

The grounds of appeal in this case would go to question the authority of the case of Sims vs. Davis, (Cheves’ Rep. 1.) The well considered judgment in that case received my entire approbation and concurrence when it was pronounced, and instead of my confidence in the soundness of its views being diminished, it has been confirmed by trial and examination. My instructions to the jury, in the case under consideration, were in conformity with, and but illustrative of the general principles which that decision maintains. I held that a right of way, by prescription, implies an adverse use of it for twenty years, and is founded on the presumption of a grant in its origin. The party using the way must do so, as though he was exercising a right of property in himself, uncontrollable by the owner of the soil over which it runs. A supposition of right is irreconcilable with such circumstances as would indicate a recognized permission of the owner, or an acquiescence in the right to stop the way at his pleasure. When lands are enclosed, or otherwise specifically appropriated, any encroachment on them will be soon known and promptly resisted. A way could not be well used over such lands, without the knowledge of their owners ; and when it has been respected and preserved for twenty years, its right is in some degree conceded — at least, the use for such a length of time, of such a way, might be regarded as adverse, and sufficient to presume a grant. On ⅛® contrary, where the way *runs entirely through wild and unappropriated forest, no such presumption could naturally arise. The owner of the land might not know of the existence of the way, or having no immediate use for the land, might have no inducement to oppose the use of it. His acquiescence, in such case, is founded on the assumption of all concerned, that he can appropriate the land whenever he might think proper to do so. Persons travel and use such a way under an implied, but revocable license, and regard it a mere convenience to be enjoyed at sufferance, without ever thinking of a right in themselves.

These views authorize this conclusion, that the use of a way for twenty years, through enclosed ground, implies that it is adverse; but when it runs entirely through unappropriated forest it is merely permissive. In the first, there is a presumption of a grant which cannot be resisted but by proof to rebut it; in the other, this presumption does not exist, but by some evidence to raise it. On the trial of this case, by way of illustrating my views to the jury, I said that a presumption of a right of way by prescription was diminished by the fact that many, under the same circumstances, travelled the way, and that it passed over several tracts of land owned by different proprietors — for in such a case, many contracts would' have to be presumed. Minors might, peradventure, own some, and as their lands could not be taken from them, by twenty years possession, acquired during their minority, no one could acquire a right of way, in them, under such circumstances. The exception taken to these remarks, (for they can only be regarded as remarks,) can avail the appellant nothing. The case authorized them, and they served but as illustrations of the views of the presiding Judge, in his instructions to the jury.

Thompson and Smith, for the motion. G. Williams, contra.

We think the facts of this case fully sustain the verdict of the jury. The way claimed, seemed to have been turned and changed by defendant whenever he had occasion to clear his land. It had lost its identity by the repeated acts of defendant, without any assertion of right at the time, on the part of the plaintiff, or those under whom he claims.

The motion is dismissed.

The whole Court concurred.  