In respect to a public way, if there be an obstruction so as to make the ordinary track dangerous, the traveler may go extra viam passing as near to the original way as possible. Henn's Case, Sir Wm. Jones, 297; 3 Salk. 182; 2 Show. 28. This rule, generally, is not applicable to a private way which becomes foundrious or impassable, (Doug. 745, 4 Maule & Sel. 387,) as where a specific way is prescribed for, no implication of a right arises to go to the right or left; or in the language of Lord Ellenborough, " to break out of it at random over the whole surface of the close." Highways are for the public service and if the usual track be impassable, the general good requires that there should be an outlet, so that the people may at all times have a passage. The better opinion, however, seems to be, that in the case of a private way of necessity, a passage extra viam may be justified where the usual track is obstructed. Woolrych, 51 Doug. 749. There is a distinction between private way by grant and one of necessity, resting upon the ground that the one is a grant of specific track over the close, while the other is a general right to a way over it; the one an express specific grant, the other a more general implied one. If the outlet in case of obstruction exist at all in the case of a way of necessity, it is clear that it does not where it could be avoided by reasonable repairs; and this duty devolves upon the defendant. Doug. 749. The burthen falls upon the party enjoying the benefit.
The proof fell altogether short of establishing a way by prescription, for although there is some evidence of a user for twenty years, it is not confined to any particular or specific track. The right proved, if it amount to anything in this respect, is a right to several cross roads over the greater part of the eighty-acre lot, for the proof of user applies about equally to all of them. I have found no authority for a right of way by prescription to travel at random over another's close, nor that such user is evidence of a prescriptive right of way over any particular part of it; on the contrary it rather negatives such conclusion. Indeed, after the judge required the defendant to make his election and confine his defense to one of the tracks used as a way, I do not perceive how the jury could have arrived at the conclusion that no trespass was committed upon the plaintiff. The defendant elected the way through the ridge lot, which may be called the middle route, and by so doing would seem to have left confessedly undefended the travel over all the others.
If right in the foregoing view of this case, a new trial must be granted, because, 1. Assuming that a right of way of necessity exists, the defendant did not confine himself to it in passing and repassing to and from his lot; and 2. There was no right by prescription established to justify the several ways over the eighty-acre lot proved to have been used.
77 Illinois, 570.- 1875.
Action of trespass by Hecht against Kuhlman.
Mr. Justice Walker delivered the opinion of the court: -
It appears that the parties to this suit own adjoining farms; that both farms, at one time, belonged to Samuel Whiteside. The tract on which appellant resides, and of which he is the owner, was improved, about thirty-five years since, by a son of Samuel Whiteside, and he lived upon the same until he sold to appellant, in 1855. His father did not convey the land to him until in 1854, and, on the same day, Samuel Whiteside conveyed to his son-in-law, Henderson, the farm on which he resided, and which is now owned by appellee.
From the time Ray Whiteside went upon the farm now owned by appellant, until a short time before this suit was brought, there has always been an open lane to the public highway, from appellant's farm, over the land of appellee. Appellant could not, at any time, get from his farm to a public road without passing over the land of some other person. He had used this way from the time he purchased, until appellee obstructed it by placing a gate across it, a short time previous to the commencement of this suit. Ray Whiteside had used it, to get out from his farm, from the time he settled upon and improved it. Previous to that time, and afterwards for a time, neighbors passed over it, in going to Collinsville. The way was then only fenced on one side, and was open on the other, but it became a lane perhaps soon after, and so continues. Witnesses testify that it had been used by the neighborhood more than fifty years, but only had been used exclusively by the parties to this suit, and their friends, for the last fifteen or sixteen years. It was always used by Ray Whiteside, of whom appellant purchased, from the time he went on the place until he sold to appellant; thus showing a continuous user by appellant and his grantor for full thirty-five years, and nearly nineteen years after the same was conveyed to Ray Whiteside by his father, before it was obstructed by appellee.
After appellee obstructed the lane, by erecting a gate across it, appellant demanded of him that he remove the obstruction, which was refused. Thereupon, appellant broke down and removed the gate, and appellee sued him before a justice of the peace. On a trial before him, plaintiff recovered a judgment for $3.00. An appeal was prosecuted to the County Court, where a trial was had. with a similar result. Defendant thereupon appealed to the Circuit Court. On the trial in that court, on a bill of exceptions, the judgment of the County Court was affirmed, and the defendant brings the case to this court by appeal, and asks a reversal.
There was not twenty years' adverse use of this way, by appellant and his grantor, before this suit was brought. Ray Whiteside used and occupied the farm, under his father, until the twenty-fifth of November, 1854, when he acquired title from his father. Up to that time, both places were held and owned by the father, and Ray used this way by the consent, expressed or implied, of the father. There is no evidence that he used it in his own right, or under any independent claim of his own. It also appears that the father and his family used it the same as Ray did. There is nothing appearing in the evidence from which it can be inferred that its use by Ray was adverse until he received the conveyance from his father; and after that, the adverse enjoyment, without being interrupted, was until in July, 1873. Thus, it will be seen that the adverse use of the way was less than nineteen years.