
    Thomas M’Kee v. Elizabeth Garrett.
    Columbia,
    Jan. 1830.
    The use of a road, in common with the inhabitants of the neighborhood, will not intitle the party to a right of way in it; nor will even the exclusive use of a road through uninclosed woodland confer such right: to establish á right of way by prescription, the user must have been both adverse and exclusive, vide Rowland®. Wolfe, aratep. 56,'S. P.
    Tried before Mr. Justice O’Neall, at Edgefield, Fall Term, 1829.
    This was an action on the case for obstructing a road over the soil of the defendant, in which the plaintiff claimed a right of. way, by prescription, as appurte’nanl to his own land. The road in question had been used, as a neighborhood, or settlement road, for many years, probably from the time of the Revolution, j}u(. certa¡n[y for more than thirty years, both by the plaintiff, and those whose estate he held, and by the other inhabitants of the vicinity. That part of the land held by defendant, through which the road passed, >vas uninclosed woodland, until about eighteen years previous to the obstruction complained of; at which time it was cleared and inclosed, a lane being left for the road, which was sometimes stopped by a gate, or gates. Above the plantation of the plaintiff, the road had been obstructed both by himself and others, but continued to be used as a neighborhood road until obstructed by plaintiff, which had been done recently, and was afterwards used by himself, until the obstruction made by the defendant. The use of the road was proved to be of great importance to the plaintiff.
    The presiding Judge charged the jury, that to intille a party to prescribe for a right of way, he must prove ; 1st, a private and exclusive right, and; 2d, twenty years use of it adverse to the right of the owner of the soil. That the plaintiff in the present case had failed in both particulars. For until the recent obstruction made by himself, the road had been common to the whole neighborhood, and there was no evidence of a private and exclusive right in him, or in those from whom he derived his estate. And even if the use had been exclusive, yet, it could not be regarded as adverse to the owner of the land through which it ran, so long as the latter consisted of uninclosed woodland : and as the defendant’s land had not been inclosed more than eighteen years previous to the obstruction, there could not have been an adverse -use of the road for twenty years, which was necessary to confer a right. These rules, his Honor observed, had been recently recognized by the Court of Appeals, in the case of Rowland Wolfe, (ante 56.) and were conclusive against the plaintiff’s right to recover.
    The jury found for the defendant, and the plaintiff now moved to set aside their verdict, on the ground of misdirection.
    Butler, for motion.
    Bauskett, contra.
    
   Nott, J.

The Court concurs in opinion with the presiding Judge, and the motion is, therefore, refused.

Motion refused.  