The fact, however, that he makes the exercise of the user more difficult, as by erecting a fence with a gate or bars therein, does not of itself interrupt the user,30 though its erection, coupled with the fact that it is allowed by the public to remain, would seem to be evidence tending to show that the user is not adverse.51 It has been said that the public user is not sufficient if it is always contested by the owner.32 Just what this means does not clearly appear. As is remarked above, the fact that the owner erects gates or bars, which operate to some extent to interfere with travel, and which nevertheless are allowed by the public to remain, tends to show that the user by the public is not "as of right," but is permissive only, and the fact that the owner places notices to that effect on the gates, which are also allowed to remain33 excludes any inference of acquiescence in the user as a basis for prescription. In Chicago v. Gait, 224 111. 421, 79 N. E. 701, verbal protests appear to be regarded as sufficient for this purpose.

30. Mills & Allen v. Evans, 100 Iowa, 712, 69 N. W. 1043; Hinks v. Hinks, 46 Me. 423: Weld v. Brooks, 152 Mass. 297, 25 N. E. 719; Cunningham v. San Saba County, 11 Tex. Civ. App. 557, 32 S. W. 928, 33 S. W. 892. But see Berry v. St. Louis & S. F. R. Co., 124 Mo. App. 436, 101 S. W. 714.

31. See Jones v. Phillips, 59 Ark. 35, 26 S W. 386; Huffman v. Hall, 102 Cal. 26, 36 Pac. 417; Township of Madison v. Gallagher, 159 111. 105, 111. 105, 42 N. E. 316; State v. Cipra, 71 Kan. 714, 81 Pac. 488 (semble); Louisville & I. R. Co. v. Bailey, 33 Ky. L. Rep. 179, 109 S. W. 336 (locked gates opened on request); Easter v. Overlea Land Co. of Baltimore, 129 Md. 627, 99 Atl. 893; Lewis v. City of Portland, 25 Ore. 133, 22 L. R. A. 736, 42 Am. St. Rep. 772, 35 Pac. 256; Goelet v. Board of Aldermen, 14 R. I. 295. But see. apparently to the contrary, Weld v. Brooks, 152 Mass. 297, 25 N. E. 719; Webster v. Lowell. 142 Mass. 234, 8 N. E. 54. Compare Pitser v. Mccreery, 172 Ind. 663, 88 N. E. 303, 89 N. E. 317. That a gate to keep in cattle does not prevent prescription for a highway, see Clark v. Hull, 184 Mass. 164.

32. Moragne v. City of Gadsden, 170 Ala. 124, 54 So. 518. And see City of Chicago v. Gait, 224 111. 421, 79 N. E. 701.

33. See Megrath v. Nickerson, 24 Wash. 235, 64 Pac. 163; In re Southwest Twenty Second Ave. 72 Wash. 99, 129 Pac. 884.

- (f) Recognition by municipal authorities. In connection with the question of the establishment of a highway by length of user, reference is frequently made to the consideration whether the existence of such a highway has been recognized by the municipal authorities, by the making of repairs or otherwise, and the cases appear to be in a state of considerable confusion in this regard. Some cases assert the view that such recognition is not necessary to the existence of a prescriptive highway.35 In so far as such recognition may be regarded as a prerequisite to the imposition of a liabilty upon the municipality for physical defects in the highway,36 such a view appears to accord with the rule that an acceptance of the dedication of land as a highway cannot be inferred merely from public user, for the purpose of imposing a liability upon the municipality.37 But in so far as public user is, for other purposes, ordinarily regarded as sufficient evidence of acceptance of a dedication,38 it would seem that, for such other purposes, any acceptance or recognition by the municipal authorities might be dispensed with when there has been a public user for the prescriptive period. Nevertheless the recognition of the highway by the municipal authorities is, in a number of jurisdictions, regarded as necessary in any case to make a highway by prescription.39 In some of the cases in which this necessity is asserted, no reason is stated, while in some it is said or intimated that this is necessary in order to show a claim of right in the public.40 Adopting the latter view, the recognition would have to take place at the commencement of the prescription period and continue throughout such period. Conceding, as

34. Tarpey v. Veith, 22 Cal. App. 289, 134 Pac. 367.

35. Carter v. Walker, 186 Ala. 140, 65 So. 170: Madison Tp. v. Gallagher, 159 111. 105, 42 N. E. 316: Menard County Road District v. Berbe, 231 111. 147, 83 N. E. 131; Jennings v. Tisbury, 5 Gray (Mass.) 73; Bassett v. Harwich, 180 Mass. 585, 62 N. E. 974; Smith v. Nofsinger, 86 Neb. 834, 126 N. W. 659 (semble); Stevens v. Nashua, 46 N. H. 193: Harriman v. Moore, 74 N. H. 277,

67 Atl. 225: Porter v. Johnson,- Tex. Civ App - . 151 S. W. 599; Seattle v. Smither's 37 Wash. 119, 79 Pac. 615; Mason County v. Mcreavy, 84 Wash. 9, 145 Pac. 993.

36. See State v. Kent County Com'rs, 83 Md. 377, 33 L. R. A. 291, 35 Atl. 62; Downend v. City of Kansas City, 156 Mo. 60, 51 L. R. A. 170, 56 S. W. 902; State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447.

37. Ante, Sec. 483, note 81.

38. Ante, Sec. 483, note 80.

39. For statements or suggestions that such recognition is necessary, see Southern R. Co. v Combs, 124 Ga. 1004, 53 S. E. 508; Loursville & N. R. Co. v. Hames, 135 Ga. 67, 68 S. E. 805; Nichols v. State, 89 Ind. 298; State v. Horn, 35 Kan. 717, 12 Pac. 148; Stickley v. Sodus Tp., 131 Mich. 510, 59 L. R. A. 287, 91 N. W. 745; State v. Auchard, 22 Mont. 14, 55 Pac. 361; Speir v. Town of Utrecht, 121 N. Y. 420, 24 N. E. 692; Smith v. Smythe, 197 N. Y. 457, 35 L. R. A. (N. S.) 524, 90 N. E. 1121; Boyden v. Achenbech, 79 N. C. 539; State v. Lucas, 124 N. C. 804, 32 S. E. 553; Ridings v. Marion County, 50 Ore. 30, 91 Pac. 22; Gaines v. Merryman, 95 Va. 660, 29 S. E. 738; Way v. Fellows, 91 Vt. 326, 100 Atl. 682; State v. Dry Fork R. Co., 50 W. Va. 235, 40 S. E. 447.

Occasionally the statute requires that the road be worked by the county authorities. See Rose v. Nolen, 166 Ky. 336, 179 S. W. 229; Rauch Co. v. Emery, 191 Mich. 188, 157 N. W. 419; Town of Nells v. Sullivan, 125 Minn. 353, 147 N. W. 244; Barnard Realty Co. v. City of Butte, 48 Mont. 102, 136 Pac. 1064; Meservey v. Gulliford, 14 Idaho, 133, 93 Pac. 780.