Opinion by
1. Thе first point made by defendant is- that the petition fails to allеge facts sufficient to entitle plaintiff to the relief prayed for therein. The petition is sufficient. It affirmatively alleges that the “road prayed for is of great necessity.” The рetition is not open to the objection made and hеld good by the court in the case of Colville v. Judy (
2. This proceeding is a proceeding in inmtum “against common law and common right,” and must be strictly construed. Colville v. Judy, supra. By "way of necessity” is meant, not a way of convenience, but a way of strict nеcessity. Tiedeman on Real Property, sect. 609. “Prom all the authorities referred to, it is clear that when a way is claimed of necessity, it is a good answer to show another way which the party may use.” Holmes v. Goring, 2 Bing. 76, and vol. 16, p. 124 of Central Law Journal. The fact that the way is one of necessity, that is, strict necessity, and not mere convenience, is a jurisdictional fаct, and must be alleged and proved, affirmatively. Colville v. Judy, supra. So long as the plaintiff had a practicable way to and from his land, either private or public, he had not a right, by necessity, tо a way over the defendant’s lands. A way, as here used, is a right of way — the privilege of going over an
3. The court properly refused the last declаration of law asked by defendant. Unless the plaintiff had a legal right of way over the surrounding lands, which he could enforcе, he had no way to and from his land, and the necessity for a wаy existed. A refusal by the owners of the surrounding lands to permit him to pass over their lands, was not necessary to constitute thе necessity. The only evidence found in the record to suрport that declaration of law is, that certain lands, lying between plaintiff’s land and a public road, were “open public commons, and were not and never had been fenced.” This evidence did not tend to' establish any right of way had by рlaintiff over such open lands. And besides, the plaintiff in rebuttal introduced evidence that the owner of the open lands was threatening to fence them, contradicting any possible presumption of a right of way over them by plaintiff.
4. Against thе evidence offered by the defendant tending to provе the existence of a public road touching the plаintiff’s farm, the plaintiff in rebuttal introduced evidence of the fаilure of the county court and road overseer, to rеcognize such road as a public road. Such recоgnition was not necessary to make the road a public road. “ Ten years’ adverse occupancy and use of a road by the public would be sufficient, if acquiesced in by the owner, to vest in the public an easement in the roаd and cause it to become a highway.” State v. Wells,
The circuit court erred in refusing to give the second and third declarations of law asked by defendant.
The judgment of the circuit court is reversed and this proceeding is remanded.