The opinion of the court was delivered by
Kennedy, J.
The only question presented by the record of this case, in which the President Judge of the court below can for a moment be supposed to have erred, arises out of his instruction to the jury on the second point submitted by the plaintiff’s counsel. By this point the counsel requested the court to charge the jury, “ that if they believed, from the evidence, that the plaintiff, or the occupiers of his farm, had used a way uninterruptedly upon and over the land of the defendant for more than twenty-one years, they had a right to presume a grant, whether the ground, over which the way had been used, was improved or unimproved land.” To this, although his Honour, thé President Judge in his reply, did instruct the jury, that “ such possession authorized the jury to presume a grant or conveyance of some sort of right of way,” yet he seems to have neutralized or done away the effect of it, if not to have negatived it entirely as to this case, by saying at the same time, “ I think the presumption of a grant may be weakened and rebutted by the nature and situation of the land over which the way -is claimed, for I cannot believe, that the mere travelling of a neighbour or neighbours in one track, &c., over unenclosed commons or unenclosed woodland, even for twenty-one years or more, ought to be considered as the adverse enjoyment of an easement, from which a jury should be bound to presume a grant, &c. And unless the jury in this case are bound to presume a grant of this right of way, which in our opinion they are not, the plaintiff has no right to recover.” /
By analogy to the statute of limitations of 21 Jac. 1, c. 16, relating to lands in England, the general rule established on the subject is, that an uninterrupted enjoyment of such an easement as is claimed here, for the space of twenty years, unanswered and unexplained, affords presumptive evidence of title. Campbell v. Wilson, (3 East, 294); 2 Stark. Evi. 914, 5th Amer. ed. And though this presumption may be repelled by- evidence, which accounts for the [430]*430possession or user,' without resorting to a title, by grant or otherwise, yet I am not aware that, before this case, it was ever thought, much less adjudicated, that the circumstance of the land being unenclosed, whether clear or woodland, over which the way or road was used and 'Occupied for the space of twenty-one years, or upwards, was sufficient to repel or rebut the presumption. It cannot be pretended that one man has a right to enter or pass, even for a single occasion, upon the land of another, without some authority, either of law, or by the consent of the latter, notwithstanding it may be clear or woodland unenclosed. And certainly much less can it be claimed that he has a right to do so, and to use it at all times and continuously for all purposes as his right of way, as would seem to have been the case here, without having a title to warrant it. “ The land,” says the author of the Doctor and Student, diag. 1, c. 8, page 30, “ of every man is in the law enclosed from other, though it lie in the open field; and therefore, if a man do’ a trespass therein, the writ shall be quare clausum fregiL” So Mr. Selwyn, in his Nisi Prius, 2d vol. tit. Trespass, page 481, (Wheat, ed.) lays it down that “ the land of every owner or occupier is enclosed and set apart from that of his neighbours, either by a tangible and visible fence, as one field is separated from other by a hedge, wall, &c., or by an ideal, invisible boundary, existing only in contemplation of law, as where the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass, by breaking his close.” See also 3 Bl. Com. 209. And accordingly it was held by the Supreme Court of New York in Wells v. Howell, (19 Johns. 385,
Now according to the principle of all these cases, and the authorities cited, there seems to be nd reason for making any distinction between the legal effect of* a person’s occupying, for the space of twenty-one years, a way over the' clear land of another, which is enclosed by a visible fence, and his clear or woodland that is unenclosed, or enclosed merely by an ideal one. For all are considered as enclosed by the law; and the owner- is entitled to be protected in the quiet, exclusive and undisturbed enjoyment of the latter description of land, as much, and to as great an extent as in that of the former. It is therefore obvious, that such an occupation of a way over either, is equally opposed to the absolute right and dominion of the owner over his land, and can only be lawfully exercised by another, either as a matter of right, under a grant from him, or by leave or favour. ’ But in the absence of all evidence tending to show that such long-continued use of the way may be referred to a license, or other special indulgence, that is either revocable or terminable, the conclusion is,- that it has grown out of a grant by the owner of the land; and has been exercised under a title thus derived; the law favours this conclusion, because it will not presume any man’s act to be illegal. It is also reasonable to suppose that the pwner of the land would not have acquiesced in such enjoyment for so long a period, when it was his interest to have interrupted it, unless he felt-conscious that the party enjoying it had a right and a title to it, that could and ought not to be defeated. And beside, seeing it can work no prejudice -to any one, excepting to him who has been guilty of great negligence, to say the least of it, public policy and convenience require that this presumption should be made, in order to promote the public peace, and quiet men in their possession. Eldridge v. Knott, (Cowp. 215.) Hillary v. Waller, (12 Ves.
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The opinion of the court was delivered by
Kennedy, J.
The only question presented by the record of this case, in which the President Judge of the court below can for a moment be supposed to have erred, arises out of his instruction to the jury on the second point submitted by the plaintiff’s counsel. By this point the counsel requested the court to charge the jury, “ that if they believed, from the evidence, that the plaintiff, or the occupiers of his farm, had used a way uninterruptedly upon and over the land of the defendant for more than twenty-one years, they had a right to presume a grant, whether the ground, over which the way had been used, was improved or unimproved land.” To this, although his Honour, thé President Judge in his reply, did instruct the jury, that “ such possession authorized the jury to presume a grant or conveyance of some sort of right of way,” yet he seems to have neutralized or done away the effect of it, if not to have negatived it entirely as to this case, by saying at the same time, “ I think the presumption of a grant may be weakened and rebutted by the nature and situation of the land over which the way -is claimed, for I cannot believe, that the mere travelling of a neighbour or neighbours in one track, &c., over unenclosed commons or unenclosed woodland, even for twenty-one years or more, ought to be considered as the adverse enjoyment of an easement, from which a jury should be bound to presume a grant, &c. And unless the jury in this case are bound to presume a grant of this right of way, which in our opinion they are not, the plaintiff has no right to recover.” /
By analogy to the statute of limitations of 21 Jac. 1, c. 16, relating to lands in England, the general rule established on the subject is, that an uninterrupted enjoyment of such an easement as is claimed here, for the space of twenty years, unanswered and unexplained, affords presumptive evidence of title. Campbell v. Wilson, (3 East, 294); 2 Stark. Evi. 914, 5th Amer. ed. And though this presumption may be repelled by- evidence, which accounts for the [430]*430possession or user,' without resorting to a title, by grant or otherwise, yet I am not aware that, before this case, it was ever thought, much less adjudicated, that the circumstance of the land being unenclosed, whether clear or woodland, over which the way or road was used and 'Occupied for the space of twenty-one years, or upwards, was sufficient to repel or rebut the presumption. It cannot be pretended that one man has a right to enter or pass, even for a single occasion, upon the land of another, without some authority, either of law, or by the consent of the latter, notwithstanding it may be clear or woodland unenclosed. And certainly much less can it be claimed that he has a right to do so, and to use it at all times and continuously for all purposes as his right of way, as would seem to have been the case here, without having a title to warrant it. “ The land,” says the author of the Doctor and Student, diag. 1, c. 8, page 30, “ of every man is in the law enclosed from other, though it lie in the open field; and therefore, if a man do’ a trespass therein, the writ shall be quare clausum fregiL” So Mr. Selwyn, in his Nisi Prius, 2d vol. tit. Trespass, page 481, (Wheat, ed.) lays it down that “ the land of every owner or occupier is enclosed and set apart from that of his neighbours, either by a tangible and visible fence, as one field is separated from other by a hedge, wall, &c., or by an ideal, invisible boundary, existing only in contemplation of law, as where the land of one man adjoins to that of another in the same open or common field. Hence every unwarrantable entry upon the land of another is termed a trespass, by breaking his close.” See also 3 Bl. Com. 209. And accordingly it was held by the Supreme Court of New York in Wells v. Howell, (19 Johns. 385,
Now according to the principle of all these cases, and the authorities cited, there seems to be nd reason for making any distinction between the legal effect of* a person’s occupying, for the space of twenty-one years, a way over the' clear land of another, which is enclosed by a visible fence, and his clear or woodland that is unenclosed, or enclosed merely by an ideal one. For all are considered as enclosed by the law; and the owner- is entitled to be protected in the quiet, exclusive and undisturbed enjoyment of the latter description of land, as much, and to as great an extent as in that of the former. It is therefore obvious, that such an occupation of a way over either, is equally opposed to the absolute right and dominion of the owner over his land, and can only be lawfully exercised by another, either as a matter of right, under a grant from him, or by leave or favour. ’ But in the absence of all evidence tending to show that such long-continued use of the way may be referred to a license, or other special indulgence, that is either revocable or terminable, the conclusion is,- that it has grown out of a grant by the owner of the land; and has been exercised under a title thus derived; the law favours this conclusion, because it will not presume any man’s act to be illegal. It is also reasonable to suppose that the pwner of the land would not have acquiesced in such enjoyment for so long a period, when it was his interest to have interrupted it, unless he felt-conscious that the party enjoying it had a right and a title to it, that could and ought not to be defeated. And beside, seeing it can work no prejudice -to any one, excepting to him who has been guilty of great negligence, to say the least of it, public policy and convenience require that this presumption should be made, in order to promote the public peace, and quiet men in their possession. Eldridge v. Knott, (Cowp. 215.) Hillary v. Waller, (12 Ves. 252.) ‘Now from the evidence here it is abundantly clear, that the plaintiff, and those under whom he claimed, had been in the continued and uninterrupted use and enjoyment of the way, through the land of the defendant, for a period greatly above twenty-one years, not much short, indeed, if any thing, of the time requisite to give a right by prescription ; for it would seem to have been used by them as far back, and beyond the reach of the oldest witnesses produced, without the least tittle of evidence being given, which went to explain, qualify or show that it was used under a license, or as a matter of favour, or otherwise than as a matter of right; “ and therefore,” as Lord Eleenborough says in Campbell v. Wilson, (3 East, 300,) “ comes to the common case of adverse enjoyment of a way for upwards of twenty-one years, without any thing to qualify that adverse enjoyment.”
[432]*432We therefore think, that the court erred in instructing the jury as it did; and instead thereof, that it ought to have advised them, that it was their duty, if they believed the evidence, of which there could be no doubt, to presume a grant of the right of way in favour of the plaintiff, which entitled him to the uninterrupted enjoyment of it against the defendant.
The questions involved in the third 'and fourth errors, were not made in the court below, and do not arise on the record, and therefore cannot be considered.
The judgment is reversed, and a venire de novo awarded.
It is not intended, by citing this case, to assert that trespass will lie in this state for the same cause, because our acts of assembly, in regard to fences, may perhaps be considered as exempting the owner of cattle from being liable to an action of trespass on account of their going upon the unfenced land of another, in consequence of the owner’s permitting them to run at large. But it must be observed, that wo have no act of assembly which authorizes the owner of cattle to drive or take them upon the land of another, whether fenced or unfenced; andiflje does so, doubtless an action would li«.