Bowie, 0. J.,
delivered the opinion of this Court.
The appellant, the defendant below, among other pleas, relied on: 1st. A common and public highway over the “•locus in quo.” 2nd. A private way appurtenant to his own land. The exceptions are taken to the granting of the third prayer of the appellee, and refusal to grant the fourth and fifth prayers of the appellant, involving the competency of the evidence to support these pleas.
The third prayer of the appellee, and fourth of the appellant, present conflicting propositions. The appellee affirms — “the mere use of a road by individuals, no matter how general or for however long a time, does not make it a public road.” This prayér, as interpreted by us, is the converse of the appellant’s fourth prayer, which substantially declares, that if the “locus in quo” had been immemorially used as a common highway, and the appellant committed the acts pomplained of, for the purpose of abating and removing an obstruction thereon, the appel-[524]*524lee could not recover for such acts. We deem the expressions “public roads” and “public highways,” as used in these prayers, to be synonymous, and the prayers of the appellee as equivalent to asserting, that use of a road, however general or however long, does not make it a public road. If the prayer was not meant to convey this idea, it was calculated to mislead the jury, and should have been rejected. The qualifying words mere use by individuals, cannot restrain the subsequent expressions “no matter how general” or “for however long a time
The learned counsel for the appellee, in their briefs and argument, have earnestly contended, that the theory of their third prayer, has been repeatedly asserted in the District and Circuit to which Baltimore and Harford Counties belong, and the learned Judge helow, in so ruling, only followed the express and reiterated decisions of the learned Judges who had preceded him. With the highest respect for the learning of the distinguished Judges referred to, we can only regret that their decisions have not come to us in some authoritative form, in which we could recognize them as precedents. In the absence of any adjudicated case, in a Court of final resort in this State, we must have recourse to the text books, and decisions in the English and American reports.
A summary of the English law, on the manner of establishing highways, will be found in Woolrych on Ways, 4 Law Lib., 9. “With respect to a highway, — in the words of Hale, 0. J., — much depends upon common reputation. And if the owner of land permit the public to pass and repass over his soil without molestation or any assertion of his rights, for some time, the law will presume a dedication of the way to general use. Much discussion has arisen as to the period which must elapse before such a dedication will be presumed, and the attention of the reader will be presently directed to it. It seems therefore, that a highway may be claimed, first [525]*525from time immemorial, and next by reason of such sufferance of public use witbin time of memory as will lead to the conclusion, that the original proprietor had designed a common benefit for all the king’s subjects. * * * The same principle appears to be applicable to common ways. * * * If evidence be adduced to show, that a particular road has been used as a public way and always considered as such, it seems that a claim of highways will be made out. ’ ’
The American Law on this subject, is happily condensed in section 662 of Qreenleof’s Evidence, vol. 2nd, title “Way.” “The existence of a public way is proved either by a copy of the record, or by other documentary evidence of the proper laying out by the proper authorities, pursuant to statutes, or by evidence either of immemorial usage, or of dedication of the road to public use. * * * Dedication may be presumed even against the sovereign; and in all cases; unless the state of the property was such that a dedication of the soil was impossible. The right of the public does not rest upon a grant by deed, nor upon a twenty years possession, but upon the use of the land, with the assent of the owner, for such a length of time, that the public accommodarion and private rights, might be materially affected by an interruption of the enjoyment.”
The effect in the matter of ways, which is given in many cases to a user, in establishing a public way, and a dedication of a way to public use, are so nearly identical, that they can hardly be treated of separately. Wash-burn on Easements, 125, sec. 1. The appellee’s theory excludes the idea of a right of way in the public, being established by user, dedication or prescription. In Folger vs. Worth, 19 Pick., 108, which was an action of trespass for taking and carrying away sheep, the defendant pleaded that he was a field driver, and required by law to’ take up sheep going at large, in the public highways. Shaw, C. [526]*526J., said: “It appears by tbe facts, that there is no record of the laying out of the highways, yet that the streets of the town have been used as highways from time immemorial. It is now we think too late to contend, that the existence of a highway cannot he proved by immemorial usage.” In Stetson vs. Faxon, Ib., 153—an action of trespass for obstructing a street by projecting a warehouse into it, whereby the plaintiff's warehouse was obscured, and special damages ensued, PutNAM, J., said: “The city is in some respects to be regarded as a county, it has authority to lay out and to discontinue public highways, as well as town ways, within its limits, and public highways may be proved by prescription, as well as by dedication, within those limits as they may he in any other part of the Commonwealth.” The case of Hutto vs. Tindall, 6 Richardson S. C. Rep., 396, cited in the argument by the appellant, resembles this in many particulars. There the jury was instructed: “that the mere use of a road over unenclosed woodland could not confer a right of wayj as a neighborhood road or private path, unless the use was shown to be adverse,” &c. But it was admitted that: “Public roads of any kind, can be established only by public authority, or by dedication, or by long use, which though not strictly prescription, bears so close an analogy to it, that it may be expressed by that term. Less than twenty years use is insufficient to create either a public or a private road. The same period of prescription is applied to both kinds. Prom a use for that period of time, a grant may be presumed.” It is said: “As the presumption of a right of way arises from the exercise of a privilege adverse to the right of property, and acquiescence in the exercise of that privilege, a distinction must therefore be observed between a claim of a way through enclosed and cultivated land, and of a way over unenclosed land. In the former case, the mere use is an invasion of property and a trespass; and acquiescence or [527]*527submission to the exercise of a privilege under circumstances which make it actionable, may justify the inference of a legal right in the person who exercises the privilege.” The mere use is recognized in this case, as sufficient to establish a right of way under certain circumstances. The appellees prayer repels the presumption under any conditions of use, however general or however long. The Court of Appeals of Virginia, in Kelley’s Case,
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Bowie, 0. J.,
delivered the opinion of this Court.
The appellant, the defendant below, among other pleas, relied on: 1st. A common and public highway over the “•locus in quo.” 2nd. A private way appurtenant to his own land. The exceptions are taken to the granting of the third prayer of the appellee, and refusal to grant the fourth and fifth prayers of the appellant, involving the competency of the evidence to support these pleas.
The third prayer of the appellee, and fourth of the appellant, present conflicting propositions. The appellee affirms — “the mere use of a road by individuals, no matter how general or for however long a time, does not make it a public road.” This prayér, as interpreted by us, is the converse of the appellant’s fourth prayer, which substantially declares, that if the “locus in quo” had been immemorially used as a common highway, and the appellant committed the acts pomplained of, for the purpose of abating and removing an obstruction thereon, the appel-[524]*524lee could not recover for such acts. We deem the expressions “public roads” and “public highways,” as used in these prayers, to be synonymous, and the prayers of the appellee as equivalent to asserting, that use of a road, however general or however long, does not make it a public road. If the prayer was not meant to convey this idea, it was calculated to mislead the jury, and should have been rejected. The qualifying words mere use by individuals, cannot restrain the subsequent expressions “no matter how general” or “for however long a time
The learned counsel for the appellee, in their briefs and argument, have earnestly contended, that the theory of their third prayer, has been repeatedly asserted in the District and Circuit to which Baltimore and Harford Counties belong, and the learned Judge helow, in so ruling, only followed the express and reiterated decisions of the learned Judges who had preceded him. With the highest respect for the learning of the distinguished Judges referred to, we can only regret that their decisions have not come to us in some authoritative form, in which we could recognize them as precedents. In the absence of any adjudicated case, in a Court of final resort in this State, we must have recourse to the text books, and decisions in the English and American reports.
A summary of the English law, on the manner of establishing highways, will be found in Woolrych on Ways, 4 Law Lib., 9. “With respect to a highway, — in the words of Hale, 0. J., — much depends upon common reputation. And if the owner of land permit the public to pass and repass over his soil without molestation or any assertion of his rights, for some time, the law will presume a dedication of the way to general use. Much discussion has arisen as to the period which must elapse before such a dedication will be presumed, and the attention of the reader will be presently directed to it. It seems therefore, that a highway may be claimed, first [525]*525from time immemorial, and next by reason of such sufferance of public use witbin time of memory as will lead to the conclusion, that the original proprietor had designed a common benefit for all the king’s subjects. * * * The same principle appears to be applicable to common ways. * * * If evidence be adduced to show, that a particular road has been used as a public way and always considered as such, it seems that a claim of highways will be made out. ’ ’
The American Law on this subject, is happily condensed in section 662 of Qreenleof’s Evidence, vol. 2nd, title “Way.” “The existence of a public way is proved either by a copy of the record, or by other documentary evidence of the proper laying out by the proper authorities, pursuant to statutes, or by evidence either of immemorial usage, or of dedication of the road to public use. * * * Dedication may be presumed even against the sovereign; and in all cases; unless the state of the property was such that a dedication of the soil was impossible. The right of the public does not rest upon a grant by deed, nor upon a twenty years possession, but upon the use of the land, with the assent of the owner, for such a length of time, that the public accommodarion and private rights, might be materially affected by an interruption of the enjoyment.”
The effect in the matter of ways, which is given in many cases to a user, in establishing a public way, and a dedication of a way to public use, are so nearly identical, that they can hardly be treated of separately. Wash-burn on Easements, 125, sec. 1. The appellee’s theory excludes the idea of a right of way in the public, being established by user, dedication or prescription. In Folger vs. Worth, 19 Pick., 108, which was an action of trespass for taking and carrying away sheep, the defendant pleaded that he was a field driver, and required by law to’ take up sheep going at large, in the public highways. Shaw, C. [526]*526J., said: “It appears by tbe facts, that there is no record of the laying out of the highways, yet that the streets of the town have been used as highways from time immemorial. It is now we think too late to contend, that the existence of a highway cannot he proved by immemorial usage.” In Stetson vs. Faxon, Ib., 153—an action of trespass for obstructing a street by projecting a warehouse into it, whereby the plaintiff's warehouse was obscured, and special damages ensued, PutNAM, J., said: “The city is in some respects to be regarded as a county, it has authority to lay out and to discontinue public highways, as well as town ways, within its limits, and public highways may be proved by prescription, as well as by dedication, within those limits as they may he in any other part of the Commonwealth.” The case of Hutto vs. Tindall, 6 Richardson S. C. Rep., 396, cited in the argument by the appellant, resembles this in many particulars. There the jury was instructed: “that the mere use of a road over unenclosed woodland could not confer a right of wayj as a neighborhood road or private path, unless the use was shown to be adverse,” &c. But it was admitted that: “Public roads of any kind, can be established only by public authority, or by dedication, or by long use, which though not strictly prescription, bears so close an analogy to it, that it may be expressed by that term. Less than twenty years use is insufficient to create either a public or a private road. The same period of prescription is applied to both kinds. Prom a use for that period of time, a grant may be presumed.” It is said: “As the presumption of a right of way arises from the exercise of a privilege adverse to the right of property, and acquiescence in the exercise of that privilege, a distinction must therefore be observed between a claim of a way through enclosed and cultivated land, and of a way over unenclosed land. In the former case, the mere use is an invasion of property and a trespass; and acquiescence or [527]*527submission to the exercise of a privilege under circumstances which make it actionable, may justify the inference of a legal right in the person who exercises the privilege.” The mere use is recognized in this case, as sufficient to establish a right of way under certain circumstances. The appellees prayer repels the presumption under any conditions of use, however general or however long. The Court of Appeals of Virginia, in Kelley’s Case, 8 Grattan, 684, after repudiating the doctrine of establishing a public road by dedication, say: “But the cases in England go further, and seem to decide that from mere user both dedication and acceptance may be inferred, so that if a man open his land, so that the public pass over it continually, after a very few years, the public will acquire a right of way, unless some act to show that he intended, only a license to the public to pass over the land, and not to dedicate a right of way to the public.” Dissenting from which, they conclude: “From the wide difference in the state of the two countries, we do not think that the decisions of the English Courts ought to have much weight with the Courts of this State, on questions upon the establishment of highways.”
The appellees insist, that the same considerations which induced the Court of Appeals of Virginia to reject the doctrine of user and dedication, as applied by the English Courts to public highways, should prevail with the Courts of Maryland. In support of this argument, they urge, that since 1704 there never has been a time in Maryland, when a registry was not required to be kept of all public roads, and when the county authorities were not required to keep all public roads in repair. Whence it is inferred, that the modes of establishing and proving the existence of public roads, recognized by the Common Law, no longer exist. They refer to 1704, ch. 21; 1794, ch. 52, and 1825, ch. 219, sec. 14. A statute made in the affirmative, without any negative expressed or [528]*528implied, does not take away the Common Law. Dwarris on Statutes, 637. These Acts do not negative any rights which may have been previously, or subsequently acquired by the public; they are mainly directions to certain officers, named in them, as to the mode of discharging certain duties prescribed. In Massachusetts, and many other States, there are statutes declaring, that “No way opened and dedicated to the public use, shall become chargeable upon any city or town, unless laid out in the manner prescribed by statute.” Notwithstanding which, in the case of Jennings vs. Tisbury, 5 Gray, 73, this was held not to touch “cases of public ways by prescription,” and “that a large proportion of the public highway or town ways stand upon no other title but prescription.”
From this brief analysis of some of the leading cases, most of which are collected and commented on with great perspicuity and force, in the late treatise of Prof. Waslibourne on Easements, we think the preponderance of authority is in favor of the positions that a plea of right of public way may be sustained by evidence of uninterrupted user by the public for twenty years; and the jury may infer from the circumstances attending the user, that the way was a public highway by long or immemorial usage, or by dedication. Vide p. 13. It follows from these premises, that thp Court below erred in granting the plaintiffs third prayer and rejecting the defendant’s fourth.
The appellant’s fifth prayer substantially affirms that the use of the locus in quo, by himself and those under whom he claims, for forty years, without objection on the part of the appellee, warrants the presumption of a grant of a right of way over the land to the appellant, notwithstanding that user may have been in common with other persons.
The proof of a private way must correspond with the the description, (vide 2 Greenleaf Ev., sec. 659;) but the [529]*529allegation of a private way may bo supported by evidence oía public way; for in these cases the latter includes the former. Ibid. If tbe proof is of a use common to all others as well as to the party claiming the way, it does not establish a private way. Vide sec. 659, note l. Prince vs. Wilbourne, 1 Rich., 58.
(Decided March 10th 1865.)
The presumption of a grant to the appellant must be founded on proof of an adverse, exclusive and uninterrupted enjoyment for twenty years, by him or those under whom he claims; and although this presumption may be made according to the authorities, from the character of the user itself, (Vide 8 Barbour, 153; 3 East., 297; 14 Mass., 53,) yet when it is shown by the evidence, the easement was enjoyed in common with others, the presumption in favor of the individual ceases.
The appellant’s prayer was too narrow in this respect, the facts relied on would have justified the finding of a public way, or as some of the authorities express it, a common or town way, by prescription or dedication, but not a grant to the appellant individually.
The fifth prayer was therefore properly overruled. There being error in granting the appellee’s third prayer and rejecting the appellant’s fourth, the judgment below must be reversed, with leave to the appellee to take out a procedendo.
Judgment reversed,- . with leave to the appellee to take out a procedendo.