Stewart, J.,
delivered the opinion of the Court.
The appellant sued for obstruction to a right of way, alleged to belong to him, through the property of the appellees.
There is no dispute about the property respectively claimed by the parties, but the-alleged right of way, has given rise to the contest. In the trial of the cause, the appellant. excepted to the refusal of his prayer, and the allowance of the appellees’ second prayef.
We think the appellant’s prayer was objectionable, upon several grounds. In blending propositions of law and fact, and proposing to submit mere assumption of both to the jury.
When the plat was offered by the appellant to be followed by evidence, that it was the same exhibited at the sale of Mrs. Lawson’s property, objection was made by the appellees’ which was overruled by the Court; (properly we think); but no question was afterwards raised as to the sufficiency of the testimony, in regard to it, submitted to the jury, to enable them to determine if it was the same plat used at the sale aforesaid.
■ If the objection had been made after all the evidence, in regard to it, we think it was properly left to the jury for the purpose proposed.
But the prayer ought not to have assumed, as a fact that there was a road marked out on the plat, and the same road connecting Font Hill with the turnpike, and that it was so used. The plat had no description of the [119]*119courses of the lots marked out, or of any road — nor do the deeds offered in evidence which refer to a plat exhibited at the sale, describe any road thereon running through the property, and it was for the jury, if they could, to determine the truth of these matters.
The prayer also assumed, that the mere use of the road, without reference to the extent and duration of its user and enjoyment, conferred the right on the appellant, as the holder of the inheritance, to use it, with the right to recover for its obstruction.
The proof as to the user of the road, was indefinite, that sometimes it was used — at other times closed; hut the prayer assumes, if the road was used at all, the right of permanent enjoyment ensued. There is no doubt the use and enjoyment of the road for twenty years adversely, and without qualification, would afford sufficient ground for the presumption of a grant; but if the' enjoyment can be referred to the license of the party over whose lands the right of way is claimed, or can be placed upon any other footing, than a claim or assertion of right, it will repel the presumption of a grant. If the right to the road had been acquired by the appellant, or by those under whom he claims, by adverse user, for twenty years ; its non-user for a like space of time, would extinguish any right they acquired, if with the knowledge and acquiescence of the proprietor of the inheritance ; because such cesser to use the road, would afford legitimate presumption of a release of the right. Wright vs. Freeman, 5 H. & J., 467; Pue vs. Pue, 4 Md. Ch. Dec., 387.
The prayer assumed that the use of the road was conclusive evidence of the right of way; whereas under any circumstances, it was but a matter of evidence, to be submitted to the jury, from which to infer a grant.
It was obnoxious to the valid objection made by the appellant, to the second’ prayer of the appellees; besides the prayer ignored all reference to the cesser to ■uso the road.
[120]*120Whilst a grant of the right of way may he presumed, from its long use and enjoyment, the release of such acquired right may be inferred from its continued abandonment, or forbearance to use it. The presumptive grant, and the presumptive release, rest on the like basis, and the evidence to support either, is not conclusive, but is a matter to be submitted to the jury, from which they may infer a grant, or release, as the case may be.
The Statute of Limitations is a positive bar, in cases where it applies,, but in all other cases, the length of time must be submitted to the jury, on the basis of presumption. Wright vs. Freeman, 5 H. & J., 476.
The appellees’ prayer as presented, should not have been granted, as we have stated. It was obnoxious to one of the objections we have made to the appellant’s.
The adverse possession of the bed of the road, for more ’than twenty years, did not necessarily preclude the appellant from claiming the re-opening of the road, but from such fact, as a matter of evidence, the jury might presume a release of the right to its use; besides the jury might have been misled from the general terms of the prayer, in undertaking ■ to determine the extent and limitation of the “adverse possession;” and how far it might apply to the claim of the appellant.
The adverse possession capable of conferring the right, or supporting the presumption of release or abandonment, must be against the owner, able in law to assert his rights, and to resist the adverse claim; and therefore, the appellant as holding the inheritance, could not be affected by any non-user of the enjoyment, while the land was in the possession, occupation, or control of the tenant for life; unless where -its abandonment, or nonuser, was by his acquiescence, knowledge or authority. Glenn vs. Davis, 35 Md., 217; Washburn on Easements, &c., secs. 114, 124.
According to the provisions of Mrs. Lawson’s will, we think Sarah Browne had but the beneficial use of the [121]*121property devised to her, during her natural life. Without undertaking to reitérate reasons for this conclusion, we refer to Ware vs. Richardson, 3 Md., 505; Tongue’s Lessce vs. Nutwell, 13 Md., 415; Hatton vs. Weems, 12 G. & J., 83.
If the right to use the road had been acquired by those under whom the appellant claims title, its non-user apd abandonment by the tenant for life, for a sufficient time, to destroy or defeat that right, would not prejudice his claim, unless, as will be explained hereinafter, he has in some manner, by his own act or acquiescence, waived or abandoned his right.
This disposes of all the questions strictly before us, under the appeal taken, but as the case must be sent down for a new trial, it is proper to state our views, as to the appellant’s exceptions, from which no appeal has proceeded — as we have stated, we concur with the Court below, in overruling the objections of the appellees to the admission of the plat, coupled with the offer to prove its identity, in the appellees’ first hill of exceptions.
Ho error was committed in the refusal of the appellees’ first and third prayers, indeed the appellees have abandoned the third prayer.
But we think the fourth prayer of the appellees ought, to have been granted.
It seems from the evidence, that the road in question, if it ever existed as a reservation, at the sale of Mrs. Lawson’s property, or was otherwise acquired as a servitude on the property now claimed by the appellees, was closed by Patterson, who had purchased the lots, in the year 1829 ; and was then opened or closed by him, as it suited his convenience. Mr. Browne, the appellant, states, that when he visited the premises in the year 1842, the road was closed, and he was obliged to take another route to get to Font Hill.
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Stewart, J.,
delivered the opinion of the Court.
The appellant sued for obstruction to a right of way, alleged to belong to him, through the property of the appellees.
There is no dispute about the property respectively claimed by the parties, but the-alleged right of way, has given rise to the contest. In the trial of the cause, the appellant. excepted to the refusal of his prayer, and the allowance of the appellees’ second prayef.
We think the appellant’s prayer was objectionable, upon several grounds. In blending propositions of law and fact, and proposing to submit mere assumption of both to the jury.
When the plat was offered by the appellant to be followed by evidence, that it was the same exhibited at the sale of Mrs. Lawson’s property, objection was made by the appellees’ which was overruled by the Court; (properly we think); but no question was afterwards raised as to the sufficiency of the testimony, in regard to it, submitted to the jury, to enable them to determine if it was the same plat used at the sale aforesaid.
■ If the objection had been made after all the evidence, in regard to it, we think it was properly left to the jury for the purpose proposed.
But the prayer ought not to have assumed, as a fact that there was a road marked out on the plat, and the same road connecting Font Hill with the turnpike, and that it was so used. The plat had no description of the [119]*119courses of the lots marked out, or of any road — nor do the deeds offered in evidence which refer to a plat exhibited at the sale, describe any road thereon running through the property, and it was for the jury, if they could, to determine the truth of these matters.
The prayer also assumed, that the mere use of the road, without reference to the extent and duration of its user and enjoyment, conferred the right on the appellant, as the holder of the inheritance, to use it, with the right to recover for its obstruction.
The proof as to the user of the road, was indefinite, that sometimes it was used — at other times closed; hut the prayer assumes, if the road was used at all, the right of permanent enjoyment ensued. There is no doubt the use and enjoyment of the road for twenty years adversely, and without qualification, would afford sufficient ground for the presumption of a grant; but if the' enjoyment can be referred to the license of the party over whose lands the right of way is claimed, or can be placed upon any other footing, than a claim or assertion of right, it will repel the presumption of a grant. If the right to the road had been acquired by the appellant, or by those under whom he claims, by adverse user, for twenty years ; its non-user for a like space of time, would extinguish any right they acquired, if with the knowledge and acquiescence of the proprietor of the inheritance ; because such cesser to use the road, would afford legitimate presumption of a release of the right. Wright vs. Freeman, 5 H. & J., 467; Pue vs. Pue, 4 Md. Ch. Dec., 387.
The prayer assumed that the use of the road was conclusive evidence of the right of way; whereas under any circumstances, it was but a matter of evidence, to be submitted to the jury, from which to infer a grant.
It was obnoxious to the valid objection made by the appellant, to the second’ prayer of the appellees; besides the prayer ignored all reference to the cesser to ■uso the road.
[120]*120Whilst a grant of the right of way may he presumed, from its long use and enjoyment, the release of such acquired right may be inferred from its continued abandonment, or forbearance to use it. The presumptive grant, and the presumptive release, rest on the like basis, and the evidence to support either, is not conclusive, but is a matter to be submitted to the jury, from which they may infer a grant, or release, as the case may be.
The Statute of Limitations is a positive bar, in cases where it applies,, but in all other cases, the length of time must be submitted to the jury, on the basis of presumption. Wright vs. Freeman, 5 H. & J., 476.
The appellees’ prayer as presented, should not have been granted, as we have stated. It was obnoxious to one of the objections we have made to the appellant’s.
The adverse possession of the bed of the road, for more ’than twenty years, did not necessarily preclude the appellant from claiming the re-opening of the road, but from such fact, as a matter of evidence, the jury might presume a release of the right to its use; besides the jury might have been misled from the general terms of the prayer, in undertaking ■ to determine the extent and limitation of the “adverse possession;” and how far it might apply to the claim of the appellant.
The adverse possession capable of conferring the right, or supporting the presumption of release or abandonment, must be against the owner, able in law to assert his rights, and to resist the adverse claim; and therefore, the appellant as holding the inheritance, could not be affected by any non-user of the enjoyment, while the land was in the possession, occupation, or control of the tenant for life; unless where -its abandonment, or nonuser, was by his acquiescence, knowledge or authority. Glenn vs. Davis, 35 Md., 217; Washburn on Easements, &c., secs. 114, 124.
According to the provisions of Mrs. Lawson’s will, we think Sarah Browne had but the beneficial use of the [121]*121property devised to her, during her natural life. Without undertaking to reitérate reasons for this conclusion, we refer to Ware vs. Richardson, 3 Md., 505; Tongue’s Lessce vs. Nutwell, 13 Md., 415; Hatton vs. Weems, 12 G. & J., 83.
If the right to use the road had been acquired by those under whom the appellant claims title, its non-user apd abandonment by the tenant for life, for a sufficient time, to destroy or defeat that right, would not prejudice his claim, unless, as will be explained hereinafter, he has in some manner, by his own act or acquiescence, waived or abandoned his right.
This disposes of all the questions strictly before us, under the appeal taken, but as the case must be sent down for a new trial, it is proper to state our views, as to the appellant’s exceptions, from which no appeal has proceeded — as we have stated, we concur with the Court below, in overruling the objections of the appellees to the admission of the plat, coupled with the offer to prove its identity, in the appellees’ first hill of exceptions.
Ho error was committed in the refusal of the appellees’ first and third prayers, indeed the appellees have abandoned the third prayer.
But we think the fourth prayer of the appellees ought, to have been granted.
It seems from the evidence, that the road in question, if it ever existed as a reservation, at the sale of Mrs. Lawson’s property, or was otherwise acquired as a servitude on the property now claimed by the appellees, was closed by Patterson, who had purchased the lots, in the year 1829 ; and was then opened or closed by him, as it suited his convenience. Mr. Browne, the appellant, states, that when he visited the premises in the year 1842, the road was closed, and he was obliged to take another route to get to Font Hill. He told his aunt, holding the life interest, about it; and she said it had not been done by her [122]*122consent. No steps, however, seem to have been taken by any of the parties to have the road opened. The appellees became entitled to the property in the year 1849, at which time the road was closed; and there is no evidence that they were aware of any right or claim to the road.
It appears there was no record of the road, to which they could resort, for the purpose of ascertaining if there was such an easement on the property.
The' appellant, according to his own statement, had some information, or belief, as to the right of way through the property of the appellees to Font Hill.
He states, he knew the property quite intimately since 1848. He knew that the road was closed in 1842, but don’t recollect that he told his aunt the road was closed, until after his visit in 1848, when she resided in Baltimore, about 1849-50. He thinks he notified the appellees in 1858-9, of his intention to claim the road. Don’t recollect of giving them written notice, or informing the Board officially of his intention.
. It thus appears, that although the company had purchased the property in 1849, when the road was closed, and when they were ignorant (from any thing shewn) of any intention to assert a right to the road, or that there was any dormant right; and after the life tenancy had terminated in 1855, the appellant gave no formal notice to the Board of his intention to claim the road. John Morrow, one of the trustees of the company and of the committee to take charge of the' Cemetery, testifies, that many dead are buried on the property — most thickly in the centre, near the appellant’s property; and that he never heard of a right of way, claimed by the appellant, prior to this suit.
If the property of the appellees ever was incumbered with the servitude of this road through it, enuring to the benefit of the appellant, as the proprietor of the dominant estate, he certainly has shown great remissness and want [123]*123of due vigilance in the assertion of his rights ; more especially, as against the appellees, who have been preparing and using the property, including the bed of the road, for a Cemetery, the receptacle of the dead, whose right of peaceable and quiet asylum has, incidentally, if not primarily, become involved in this question.
The company occupying and employing the property for such laudable purpose, and under the peculiar circumstances, so well calculated to arrest the attention of all parties having claims upon it, and to prompt them, if so inclined, to the earliest assertion and notice of them, is certainly entitled to the most liberal construction of the sound doctrine of estoppel in pais, if applicable ; because of the use to which the property was being devoted and dedicated.
The appellees have in charge the remains of the dead, whose right of sepulture should not be disturbed, except upon most unequivocal legal grounds; and the appellant, in undertaking to invade their domain, and to dispossess the trustees, ought to be able and prepared to vindicate his claim, and.to show by clear and unmistakable proof, that he has been guilty of no laches.
Their possession and appropriation of the property, after their purchase in 1849, when the road had been long discontinued, and without notice of the claim of the appellant, was, certainly, not that sort of “ encroachment on the soil, or rights of the appellant, as amounted to an acknowledged tort, equally known and open to the notice of both parties, which confers no right, until it has continued for such length of time, without interruption, as to give effect to the limitation of the right of action for the disturbance,” to use the language adopted in Tongue’s Lessee vs. Nutwell, 17 Md., 230; but comes within the principle, with its qualification, recognized in the above case, and also in the case of Casey’s Lessee vs. Inloes, et al., 1 Gill, 502.
[124]*124(Decided 18th December, 1872.)
The principle is this, where one stands by and sees another laying out money upon property, to which he has some claim or title, and does not give notice of it, he cannot afterwards, in good conscience, set up such claim or title; except where the encroachment is on land, the title to which is equally well known or equally open to the notice of both parties; where the claim is under some trust, lien or other right, not equally open and apparent to the parties, the principle applies in favor of one who would be deceived by such want of notice. In such case the doctrine of estoppel in pais affords a protection to the party misled by the conduct of the other party.
The prayer of the appellees assumes this theory of. the 'facts, and if the circumstances of the parties, in regard to the road in question, sustain the proposition of the prayer, the appellant is precluded from recovery for the obstruction of the road, even if the evidence were sufficient to establish the easement through the property, by long antecedent user and enjoyment.
After the termination of the life tenancy in the property, if the appellant, as the proprietor .of the inheritance of the alleged dominant estate, acquiesced in- the abandonment of the road, and allowed the appellees to make the improvements suitable for the burial of the dead, without the earliest and amplest notice of his rights, he is precluded from the resumption ■ of the easement; because, by his laches, he has induced others to expend their money ; and in this case for a sacred purpose. It is just he should suffer loss, rather than those deceived and misled by his neglect. Under such circumstances he will be considered as waiving and abandoning his claim.
Judgment reversed and new trial ordered.
Alvet, J., who was not present at the conference when the opinion filed in this case was submitted and approved, [125]*125and did not see the opinion until after it was filed, desires to be considered as not participating in the decision.