delivered the opinion of the Court:
Appellee, was sued, before a justice of the peace, for placing and maintaining an obstruction in a public highway, and judgment was recovеred against him. He appealed to the circuit court of Macoupin county, where the case was tried before the court without a jury, and judgment rendered in his favor. From that j udgment appellant prosecutes this appeal.
The only substantial question in the case is, whether the locus in quo had bеcome a public highway by prescription. There was a traveled way over the north-east quarter of the south-east quarter of section 16, township 9, range 7, Macoupin county, owned by appellee at the time, across which he erected fences — the alleged obstructions. This traveled route crossed the south line of the forty near the south-west corner, and ran in a meandering, north-easterly direction, to the north line, about thirty-two rods east of the north-east corner, thence east to the corner, and thence north. This road éxtending across the forty-acre tract was part оf a continuous line of travel from south-west to north-east, which had been used by the public for more than twenty years, but it is not shown that any part of it was ever legally laid out and opened. During the earlier years of travel it was over uninclosed timber land. •The land of appellee seems to have been post oak timber, partly cut off and grown up in brush. There is no proof of a road having been opened over it, and from its meandering course the linе of travel doubtless became fixed, as frequently happened in the early settlement of the country, by persons finding the most convenient way acrоss timber land without cutting down the trees and bushes. The land remained vacant and uninclosed until about four years prior to the beginning of the suit before the justice оf the peace, except that many years prior to that time one Julian, then owning the land, made an improvement on it, placing a fencе across the road, and thereby changing the line of travel around a small orchard. The improvement was abandoned, and the old line was resumed about twenty-one or twenty-two years prior to the suit. There was, in 1878, a small amount of work done by the public on this land, at a hill near the south line, and there was рerhaps some brush cut away at places to widen it. North and south of defendant’s land work was done from time to time. It is not denied that within twenty years substantial changes had been made in the road, both north and south, by land owners fencing across it and forcing the travel around fields, upon the lines, and that the road аuthorities, without legal proceedings to vacate the old road or locate a new one, acquiesced in such changes. Over the defendant’s land the travel has been substantially on the same line, except as it temporarily changed to avoid a “mud hole” or a “bush.” About four years agо defendant inclosed the land on the east, and then built his fence near the east side of the road, following its meanderings, but in February, 1891, fenced across it near the north and south lines of his land.
Conceding that the act of building defendant’s fence to correspond with the road indicated an intention to make a dedication to the public, there is no claim of acceptance after that time by the public, and hence it could not be successfully contended that there was a highway by dedication. In fact no such claim is made. Had a public road been established, by prescription, over the defendant’s land prior to February, 1891 ? The circuit court held there had not. It refused a proposition submitted by the plaintiff, holding “that, under the evidence in this casе, a public highway is shown to exist at the time and place where and when the obstructions mentioned in the evidence were placed,” etc. It alsо refused to hold several other propositions submitted by plaintiff, to the effect that changes at points not on defendant’s land would not operаte to defeat the right of the public to the highway at the places obstructed. Manifestly, our decision must turn upon the ruling of the court on the first proposition. Refusing it, rendered the others immaterial. In determining whether, under the evidence, a public highway was established over defendant’s land, the testimony as to changes at other points was, of course, to be considered, because it was part of the evidence in the ease bearing on that questiоn, but there is nothing in the record from which it can be assumed that the case turned upon that particular fact.
It is well understood that the user of private property, to ripen into a prescriptive right, must be adverse to the owner. Mere permissive use is never sufficient. “It,must also be open, adverse, and under claim of right.” (Gentleman v. Soule,
But we think the slight circumstance of work having been done on defendant’s land, as indicating a claim of public right, is more than rebutted by thе fact that much more work was done at other places, and changes allowed to be made without objection. If the evidence had clеarly established a prescriptive right over defendant’s land, without reference to other parts of the road, that right would not have been defeаted by obstructions and changes at other places, but when it is, to say the least, doubtful whether the user over defendant’s land was adverse, under claim of right, оr merely permissive, it is important to know how the public authorities treated it at other places. We think the owners of the forty-acre tract, as reasonably prudent men, had a right to presume that the road over it was being used by the public just as it was over other lands, and that by permitting it to be so used nonе of their rights were waived.
Our conclusion is that the circuit court was justified, from all the evidence in the case, in holding that the plaintiff failed to prove that the place obstructed was a public highway. Its judgment will therefore be affirmed.
Judgment affirmed.