#### JOHN RAY vs. WILLIAM LIPSCOMB.

Tlie user of a private way for twenty years or more, not adversely, nor under a claim of right, is not a sufficient ground for a jury to presume a grant of tlie easement.

Where the language of a Judge’s instruction showed that it was probably intended to convey a correct proposition, though it did not do so critically, but the inaccuracy was not called to his attention at the time of giving his charge, there is no ground for exception.

Where an error in a Judge’s charge was favorable to the party excepting, it is not a ground for a venire de novo.'

Action on the case fpr the' obstruction of a right of way claimed by plaintiff, tried before liis Honor, Judge Caldwell, at the Fall Term, 1855, of Orange Superior Court.

The plaintiff resided on the north side of Little Eiver, which stream divides his land from- that of the defendant, and the way, as claimed by him, runs through a ford on the river, and through the land of the defendant, to a public highway, called the Hillsborough and Oxford road.

There was evidence tending to show that, for more than twenty years_ before the obstruction complained of, the plaintiff, and other persons of the neighborhood, had used the way in question. This obstruction was by the defendant’s running his fence across the way, and taking a part of it into a field.

On the part of the defendant, it was proved, that many years before tlie act complained of, be,'and those under whom he claimed, had at several different times, as his and their convenience required, fenced over the way as it then ran, and had at each time made changes in its route, and that this had been done without opposition or complaint from the plaintiff or the others using the way.

*186To rebut the presumption of right, the defendant offered in evidence a certified copy of a petition, filed in the County Court of Orange in 1851, praying that a right of way might be granted to him, over the same route as that now insisted on ; upon which, an issue had been made and tried between the same parties, and determined against the plaintiff.

The plaintiff at first objected to the introduction of this record, but afterwards withdrew his opposition, and it was read by consent of the parties.

His Honor charged the jury, that, if they believed the plaintiff had used the way in question, for twenty years or more, and that such user was adverse, and upon a claim of right, they had a right to presume a grant to the easement, and in such a case, the plaintiff would be entitled to recover; that every man was presumed to have a right to do that which he was in the habit of doing; but if they should believe that such user was by the curtesy and good will of the defendant, and not adverse to his right, they ought to find for him.

The Judge further charged the jury, that the petition, offered in evidence by the defendant, was evidence against the plaintiff, but that it was very slight.

To these instructions, plaintiff excepted.

Yerdict for defendant. Judgment, and appeal by the plaintiff.

Bryan, for plaintiff.

Graham and Norwood, for defendant.

Pearson, J.

The general principles involved in this case, are fully discussed and settled in Ingram v. Hough, 1 Jones’ Rep. 43; Mebane v. Patrick, Ibid. 23. These cases, as it seems to us, put the doctrine of the presumption of a right of > way from user, on its true basis; and, as was said in the argument, considering the state of things among us for many years past, in regard to one neighbor’s passing over the uninclosed land of another, either on foot or horseback, or with *187Ilis wagon, any other conclusion would have resulted in great and general inconvenience.

The counsel for the plaintiff, conceding the general principio to he settled, excepted upon two minor objections.

1. Ilis Honor charged, that upon a certain state of facts the jury had a right to presume a grant of the easement.

The presumption of a grant is a matter of fact, and cannot he made by the Court. But it is proper for the Court to advise, or (as we say) instruct the jury, that if certain facts are found by them, it is their duty to presume a grant. Had a special instruction to this effect been ashed for, it would have been error to refuse it. But it does not appear that the attention of his Honor was called to it, and the language used by him was much the same in effect; for it was the duty of the jury to do whatever they have a right to do, for the purpose of finding a true verdict. There is nothing tending to show that the charge was not understood in this sense.

2. Ilis Honor told-the jury that the petition was evidence against the plaintiff, hut was very slight evidence.

The competency of the petition was not disputed, and certainly tiie plaintiff has no right to complain because his Hon- or took sides with him, and expressed the opinion that it was very slight evidence; for if evidence against him, it at least amounted to that. The defendant had a right to complain that this expression of opinion, in regard to the weight of the evidence, was unfavorable to him.

Pkr Curiam.

Judgment affirmed.