Cole, J.
I am of the opinion that there must be a new trial in this case, on account of the error of the court below in refusing to give the first and second instructions asked by the defendant. These instructions read as follows :
“1. If the jury should find from the evidence, that the premises had been used continuously and uninterruptedly as a public highway for twenty years, such use is conclusive in favor of the public that it is a highway, and the plaintiffs cannot recover.
“ 2. If the jury should find from the evidence, that the premises had been continuously used as a highway for the period of twenty years', and that the defendant or his grantor had assented to or acquiesced in the use of the premises for a highway, or declared his assent to such use, then it is a legal highway, and the plaintiffs cannot recover.”
It appears to me that there was no error in these instructions of which the plaintiffs could complain, and that they should have been given to the jury. Eor it abundantly appeared from the testimony of several witnesses (if the jury credited their statements), that the locus in quo had been used as a public highway continuously and uninterruptedly for more than twenty years — a use or enjoyment on the part of the public for a sufficiently long period to create a prescriptive right under the statute. The provision of the statute alluded to, is the last clause of section 80, chapter 16, R. S. 1849 (same provision in section 85, chapter 19, R. S. 1858), and is in the following words: “All public highways now in use, heretofore laid out and established pursuant to law, and all [549] roads not recorded wbicb bave been used' as public highways twenty years or more, and all roads not recorded which shall hereafter be used ten years or more, shall be deemed public highways.”
Now, among other objections taken to these instructions by the counsel of the plaintiffs, it is insisted, thafthe instructions were erroneous because the statute provides that the limitation shall be ten years, and not twenty, and that hence they did not, in the language in which they were drawn, embrace correct propositions of law. It is very true that the highway in question had not been used twenty years or more when this statute was enacted, in 1849, and that it therefore more properly came within the less period of limitation. But is it not perfectly obvious that if the jury had found from the evidence an uninterrupted and continual user of the premises for a high-' way for a period of twenty years, they must also have found a user for the period of ten years ? The greater included the less. So this objection, as it seems to me, is not well taken.
I may likewise observe, in passing, that there is a verbal inaccuracy in the second instruction in using the word “ defendant” for “plaintiff;” but the context shows so very clearly the idea intended to be conveyed by the instruction, that no one could have possibly been misled by this mere verbal inaccuracy. The plain and obvious meaning of the instruction is, that where premises have been continuously and uninterruptedly used by the public as a highway for the period of twenty years, and the owner has assented to or acquiesced in the exercise of this right so to use his land, there the right of the public as against the owner is complete, and the road is to be deemed a legal highway. It may perhaps admit of great doubt, whether under 'our statute it is essential that it should appear that the owner assented to or acquiesced in the use of the premises as a highway, or whéther, if there has been the use for the requisite period unexplained, it must not be presumed to be under a [550] claim of right, and be sufficient to establish a title by prescription, and authorize the presumption of a grant, unless contradicted or explained by the owner. In the absence of all evidence tending to show that such long continued use of the way is permissive, or may be referred to a license or special indulgence, does not the statute declare that it shall be deemed a public highway from the fact that it has been used as such for the period of limitation ? I confess, after a careful examination of the statute, such seems to me to be its meaning. I should unhesitatingly place this construction upon the statute, were it not for the decision of this court in State of Wisconsin v. Joyce, 19 Wis. 91, where a different view is expressed. And although I am very reluctant to question the soundness of that decision, yet it seems to me that the broad doctrine laid down in the opinion must be qualified. Mr. Justice DowNeb there uses the following language: “The question is, whether a mere traveling over such a road or track for ten years is such a user as is required by section 85, chapter 19, E. S., to make it a public highway. If it is, then it would follow that the town through which such a road runs might be liable for damages occasioned by the road being out of repair, when neither the town nor any of its officers had done any act accepting or recognizing it as a highway. Independent of the statute, there must be twenty years’ adverse user before it would become á highway; arid to make the user adverse, there must be some acts done showing a claim of right, such as working the road, repairing it, attaching it to a road district, or some act recognizing it by the proper authorities as a highway. Not till the doing of some such act or acts, or the assertion of such claim, would the twenty years begin to run. The presumption up to that time is, that the public user is permissive and not adverse.”
The circuit judge charged the jury in entire conformity to this exposition of the statute. He instructed the jury, that, to constitute a highway by prescription, there must be something [551] more than the mere traveling over or use of the track for the period of ten years or more; that there must be an adverse user for that period, and some act done upon the part of the proper authorities showing a claim of right, such as working the road, repairing it, attaching it to some road district, or some such act recognizing it as a highway, or claiming it for the purpose of travel against the wishes of the owner; and that not until the doing of some such act or acts, or the assertion of such a claim, does the ten years required by the statute to make a highway of an unrecorded road begin to run.
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Cole, J.
I am of the opinion that there must be a new trial in this case, on account of the error of the court below in refusing to give the first and second instructions asked by the defendant. These instructions read as follows :
“1. If the jury should find from the evidence, that the premises had been used continuously and uninterruptedly as a public highway for twenty years, such use is conclusive in favor of the public that it is a highway, and the plaintiffs cannot recover.
“ 2. If the jury should find from the evidence, that the premises had been continuously used as a highway for the period of twenty years', and that the defendant or his grantor had assented to or acquiesced in the use of the premises for a highway, or declared his assent to such use, then it is a legal highway, and the plaintiffs cannot recover.”
It appears to me that there was no error in these instructions of which the plaintiffs could complain, and that they should have been given to the jury. Eor it abundantly appeared from the testimony of several witnesses (if the jury credited their statements), that the locus in quo had been used as a public highway continuously and uninterruptedly for more than twenty years — a use or enjoyment on the part of the public for a sufficiently long period to create a prescriptive right under the statute. The provision of the statute alluded to, is the last clause of section 80, chapter 16, R. S. 1849 (same provision in section 85, chapter 19, R. S. 1858), and is in the following words: “All public highways now in use, heretofore laid out and established pursuant to law, and all [549] roads not recorded wbicb bave been used' as public highways twenty years or more, and all roads not recorded which shall hereafter be used ten years or more, shall be deemed public highways.”
Now, among other objections taken to these instructions by the counsel of the plaintiffs, it is insisted, thafthe instructions were erroneous because the statute provides that the limitation shall be ten years, and not twenty, and that hence they did not, in the language in which they were drawn, embrace correct propositions of law. It is very true that the highway in question had not been used twenty years or more when this statute was enacted, in 1849, and that it therefore more properly came within the less period of limitation. But is it not perfectly obvious that if the jury had found from the evidence an uninterrupted and continual user of the premises for a high-' way for a period of twenty years, they must also have found a user for the period of ten years ? The greater included the less. So this objection, as it seems to me, is not well taken.
I may likewise observe, in passing, that there is a verbal inaccuracy in the second instruction in using the word “ defendant” for “plaintiff;” but the context shows so very clearly the idea intended to be conveyed by the instruction, that no one could have possibly been misled by this mere verbal inaccuracy. The plain and obvious meaning of the instruction is, that where premises have been continuously and uninterruptedly used by the public as a highway for the period of twenty years, and the owner has assented to or acquiesced in the exercise of this right so to use his land, there the right of the public as against the owner is complete, and the road is to be deemed a legal highway. It may perhaps admit of great doubt, whether under 'our statute it is essential that it should appear that the owner assented to or acquiesced in the use of the premises as a highway, or whéther, if there has been the use for the requisite period unexplained, it must not be presumed to be under a [550] claim of right, and be sufficient to establish a title by prescription, and authorize the presumption of a grant, unless contradicted or explained by the owner. In the absence of all evidence tending to show that such long continued use of the way is permissive, or may be referred to a license or special indulgence, does not the statute declare that it shall be deemed a public highway from the fact that it has been used as such for the period of limitation ? I confess, after a careful examination of the statute, such seems to me to be its meaning. I should unhesitatingly place this construction upon the statute, were it not for the decision of this court in State of Wisconsin v. Joyce, 19 Wis. 91, where a different view is expressed. And although I am very reluctant to question the soundness of that decision, yet it seems to me that the broad doctrine laid down in the opinion must be qualified. Mr. Justice DowNeb there uses the following language: “The question is, whether a mere traveling over such a road or track for ten years is such a user as is required by section 85, chapter 19, E. S., to make it a public highway. If it is, then it would follow that the town through which such a road runs might be liable for damages occasioned by the road being out of repair, when neither the town nor any of its officers had done any act accepting or recognizing it as a highway. Independent of the statute, there must be twenty years’ adverse user before it would become á highway; arid to make the user adverse, there must be some acts done showing a claim of right, such as working the road, repairing it, attaching it to a road district, or some act recognizing it by the proper authorities as a highway. Not till the doing of some such act or acts, or the assertion of such claim, would the twenty years begin to run. The presumption up to that time is, that the public user is permissive and not adverse.”
The circuit judge charged the jury in entire conformity to this exposition of the statute. He instructed the jury, that, to constitute a highway by prescription, there must be something [551] more than the mere traveling over or use of the track for the period of ten years or more; that there must be an adverse user for that period, and some act done upon the part of the proper authorities showing a claim of right, such as working the road, repairing it, attaching it to some road district, or some such act recognizing it as a highway, or claiming it for the purpose of travel against the wishes of the owner; and that not until the doing of some such act or acts, or the assertion of such a claim, does the ten years required by the statute to make a highway of an unrecorded road begin to run.
Now, it seems to me that the insuperable difficulty with this view of the statute is, that it incorporates into the law, by judicial construction, material provisions which the legislature did not think fit to adopt. The legislature certainly have not said in this enactment, that all unrecorded roads which shall be used ten years or more after the proper public authorities home done some act in respect to them, showing a claim of right over them, siich as working the roads, repairing them, attaching them to some road district, or some other act recognizing them as highways, “ shall be deemed public highways.” But the legislature has simply said: “roads not recorded which shall hereafter be used ten years or more, shall be deemed public highways.” It seems to me to be taking an unwarrantable liberty with this language to say, that it means that roads not recorded which shall be used ten years or more after the public authorities have done some acts showing a claim of right over them, as by working or repairing them, or by attaching them to some road district, or by some other act shall recognize them as highways, shall be deemed highways. This is surely adding to the statute most material and important qualifications. Is it the province of the courts, whose duty it'is merely to interpret the statute, thus to amend and restrict it ? Can they say, in addition to a user of the highway by the public for ten years, there must be some other act or fact or declara[552] tion on the part of the public authorities for the same period, as a basis of the prescription ? To adhere to the broad doctrine laid down in the State v. Joyce, results inevitably in an important amendment to the statute.
To avoid all misapprehension, it is necessary to add a word in respect to the nature and character of the use or enjoyment which will give the prescriptive right. And in the first place, it is very obvious that the user mentioned in the statute was not intended to be a matter of permission. In the language of Chief Justice Blaoe, in Garrett v. Jackson, 20 Pa. St. 331-335, “ a passage by one man over the land of another with the special permission of the owner on every occasion of its use, will not raise the presumption of a grant, no matter how it may occur, nor how long continued. So a license to use the road for a certain defined period, and the enjoyment of it under such license, will give no right after the expiration of the time. Put where one uses an easement whenever he sees fit, without asking leave, and without objection, it is adverse, and an uninterrupted adverse enjoyment for twenty-one years is a title which cannot be afterward disputed. Such enjoyment, without evidence to explain how it began, is presumed to have been in pursuance of a full and unqualified grant. The owner of >the land has the burden of proving that the use of the easement was under some license, indulgence, or special contract, inconsistent with a claim of right by the other party.” These remarks of the learned judge were made in reference to a private way, but still they apply with far greater force to the user of a public highway under the statute. For where the public pass more or less frequently for the period of ten years over a highway, not in one place to-day and another to-morrow, but uniformly over essentially the same track, as often as they have occasion to pass in that course or direction, and where the amount of travel — regard being had to the situation of the country, and other surrounding circumstances — shows that [553] tbe public exercise tbe right of using tbe land as and for a highway, there the user, unexplained, may well be considered adverse, and such user authorizes the presumption of a grant. Hence, after the expiration of the statutory period, it would seem but just to throw the burden upon the owner of showing that the use was merely permissive, and not as a matter of right. Such seems to me to be the natural and proper construction of the statute. In New York they have a similar statute, and, as I understand the decisions, the courts there have taken a like view of it, holding that the uninterrupted use of land as a public highway for twenty years alone constitutes it such a highway. Devenpeck v. Lambert, 44 Barb. 596; Wiggins v. Tallmadge, 11 id. 457. And upon an analogous provision, see Galatian v. Gardner, 7 Johns. 106; The People v. Lawson, 17 id. 277. In the cases of Lemon v. Hayden, 13 Wis. 159, and Wyman v. The State, id. 663, this court held that by the principles of the common law a continued and uninterrupted use by the public of land as a highway for twenty years, with the consent of the owner, was conclusive in favor of the public that it is a highway. To substantially the same effect are the cases of Onstott v. Murray, 22 Iowa, 457; Smith v. The State, 3 Zab. 130; Day v. Allender, 22 Md. 512, and Regina v. Petrie, 30 Eng. L. and Eq. 207.
In some of the states it has been held, that a bare use alone of land as a highway, over waste and uninclosed land, for the local period of limitation, will not give a prescriptive right, or warrant the presumption of a grant. Commonwealth v. Kelly, 8 Grattan, 632; Stacey v. Miller, 14 Missouri, 479; Hogg v. Gill, 1 McMullan, 329; Hutto v. Tindall, 6 Richardson, 396; contra, Worrall v. Rhoads, 2 Wharton, 427. I do not find in any of these states, however, a statute like the one which exists here, and which it seems to me must have a controlling influence upon the effect of a continued user of the highway for the requisite period.
[554] It is said tliat if the mere traveling over a road or track for ten years is such a user as is required by the statute, then it follows that the town through which such road runs may become liable for damages occasioned by the road being out of repair, when neither the town nor any of its officers had done any thing recognizing it as a public highway. This objection could not very well be taken upon the facts of this ease, unless, indeed, it is necessary that there should be ten years’ uninterrupted user after the public authorities have worked upon the road, or done some other act recognizing it. For it appears that in 1858 work wras done upon the road under the direction of the road overseer, and also at other times thereafter, while in various ways the town authorities recognized the road as a highway. So that probably the town would be chargeable within the doctrine of those cases which hold that there must be an acceptance of the highway by the public authorities in order to render the town liable for damages occasioned by its being out of repair. It is hardly to be assumed that highways will be used continuously for ten years by all'persons when the public convenience and necessity do not require them; but if they should be, and unnecessary burdens are imposed upon towns to keep them in repair, the legislature can make an acceptance by some act of the public authorities ■requisite to make them highways. As the law now stands, all roads not recorded which shall be used ten years or more shall be deemed highways. This is the express language of the statute, which governs the case.
It follows from these views that the judgment of the circuit court must be reversed, and a new trial ordered.