1 S.C. Eq. 1 | S.C. Ct. App. | 1839
Curia,per
The plaintiff claimed aright of way over the defendant’s land, along an old road which had existed for many years. The road was called the Vincent road, but when, or by whom, it was laid out, or how it originated, did not appear.' It was proved that the plaintiff, in common with his neighbors, had travelled along this road for a period exceeding twenty years, and that the plaintiff also used it as a mill road, but not always for that purpose, as he frequently sent to mill in other directions. There was no proof that the plaintiff had opened the road, or that he had worked on it, or exercised any dominion or controul over it, except as above stated; or that Davis, or those from whom he derived his title, had ever acquiesced in or done any act which could be construed into an admission of the plaintiff’s light of way over the land, except that no objection ever was made previous to the obstruction for which this action was brought.
Under these circumstances we are to decide whether the plaintiff has acquired a right of way over the defendant’s land. If he has, then the verdict is right; if he has not, then it is wrong, and must be set aside. I need not* here repeat what is so familiar to every lawyer; that, after a possession of-land for twenty years, a deed or grant will be presumed; and also-that where a man has enjoyed and used a way over another’s land for the same period, it will be presumed that he had originally a right to do sor the evidence of which has .been lost by lapse of time. In matters of antiquity, the law substitutes the possession, in the case of land,, and the use, in the case of a way, for the deed1 or grant; the nature and extent of which, in both cases, will depend on the nature of the possession and
It will be perceived from this, that I am not disposed to adopt the opinion intimated in Roland vs. Wolfe, (1 Bailey, 56) and in McKee vs. Garrett, (1 Bailey, 341) that in no case can a prescriptive right of way be acquired over the uninclosed land of another. Those cases were, doubtless, decided right upon their own facts, but the dictum above stated, in the broad terms in which it is laid down, was never satisfactory to the profession, and may be considered as modified by the subsequent case of Smith vs. Kinard, (2 Hill, 642, n.) Since this case was argued, we have carefully considered and examined it; and we all concur in the opinion that a right of way may exist by prescription over £he lininclosed woodlands of another, subject to the qualifications ai^d lijmtatioifs hereinafter stated. Aslb general rule, Í would say that the use of every su^h way-’-is permissive* or held at sufferance, where' the claimant has don.e no act shewing that he claimed the right adversely, and the allowance of the use by the owner of the soil has been unaccompanied by any act which shews a recognition, on his part, of the right of the claimant to use the road without his permission. Most of the old roads which, like this, lead from one public road to another, or from neighborhood to neighborhood, sprung up from accident. In the early settlement of the country, paths through the woods were made by repeated travelling along the same track. In process of time, by continued use, these tracks were enlarged into cart and wagon ways. They were convenient to the propri