The referee states, as a conclusion of law, “that the Defendant had acquired a right of private way across the Plaintiff’s lot; ” and the conclusion followed, that he was justified in the act complained of as a trespass. By this was meant that the father of the Defendant, under whose authority and as whose servant he justified, had such right of way.
The referee finds a use of this way by the Defendant’s father for more than twenty years. He does not find how the use began, or whether there was a grant thereof to him, or to any one under whom he claims, nor whether the use was adverse, nor whether it was under claim of right.
*233 He does find that the lot of the Plaintiff was wild land when the road was opened, and some twelve or fourteen years ago the lot of the Plaintiff began to be cultivated.
It is not competent for the Respondent to insist, on this appeal, that the evidence offered to show that the land of the Plaintiff, over which the right of way is claimed by the father of the Defendant, belonged to Yan Rensselaer when the use of the way began, was inadmissible.
It was received, and being received, the Plaintiff had a right to rely upon it. If testimony tending to establish a material fact, although incompetent in its nature, is received without objection,, or if, as in this case, being objected to, it is received, notwithstanding the objection, the party has a right to insist upon the facts shown thereby; and it will not be- just to say, on appeal, that such evidence ought not to have been received, and may therefore be now disregarded. Such a view of the subject would, be manifestly unjust.
First. It would mislead and entrap the party to his prejudice.
Second. If the Court, on the trial, excluded the evidence, he could have his exception, and bring the correctness, of the ruling under review; and
Third Which is most of all important: If the evidence had! been rejected, he would have had the opportunity to supply the' defect by other proof.
Nothing is more common than for testimony to.be-given-, which, is not in its nature strictly competent, upon matters about which both parties are conscious that there is no dispute — matters, which both understand to be true. And such evidence is taken because the adverse party makes no question of the fact dt tends to establish.
He can never be permitted to say, on appeal, that the fact was not proved, because the evidence offered and received was not competent testimony, and ought to have been objected to, and rejected; and if objected to, and the'objection is- overruled, the ruling, for all the purposes of a review of the case by the party giving the evidence, must be taken to be correct.,
*234 In this case the land in question is declared by the Defendant himself to be “ on the Van Rensselaer tract or gore; ’’ that it “ was woods and unoccupied as a farm until . . . twelve or thirteen years ago;” — and that he understood Mr. Van Rensselaer was the owner of the land as long ago as he (I) can remember.
Observe, this is the Defendant himself — the alleged trespasser. This evidence is of the same character as that by what the title of the farm of the Defendant’s father was mainly proved.
The witness calls it “my father’s lot,” “ father’s farm,” etc.
The Defendant objected to the above evidence in regard to Van Rensselaer’s title, “ as incompetent to prove, by parol, or hearsay, title to land in Van Rensselaer,” and the objection was overruled —probably on the ground that it was, in substance, an admission by the Defendant himself that Van Rensselaer owned the lands.
But whether it was competent on this ground, or on any other, or was incompetent, it was ruled competent evidence to show such title, and had it been rejected, the Plaintiff would, at least, have had the opportunity to establish the fact by other evidence.
Then followed the testimony to the declarations of the Defendant’s father, the claimant of the right, and as whose servant the Defendant justifies, viz.: that “he had permission from Mr. Van Rensselaer, or his agent, to travel over this land.”
As to this testimony, whether competent or not, the same observations are pertinent. It was offered, in terms, to establish that fhe use was by license, and not adverse to the owner. It was objected to and received, possibly upon the ground that the declaration of the master, under whose then present alleged title and authority the servant justifies, is evidence; dr, possibly, upon the ground that if A instructs his servant to drive his team across B’s land, declaring to him that he has a license from B to travel over it, and the servant justifies, alleging title in A, and authority from. A for the trespass, the admission of A is competent as a part of the res gesta; it shows under what claim of right the authority to the servant was given by the master, and received and acted upon by the servant.
*235 But, as before, whether competent or not, it was received, and the Defendant is entitled to the benefit of it.
The case stands thus upon the evidence: Van Rensselaer owned the locus in quo; it was wild land, uncultivated. He gave to the Defendant’s father permission to travel over it, and he' did so, constructing, and, from time to time, repairing the road, for more than twenty years.
Then the owner builds a fence across, and obstructs the road, practically and effectually revoking the license, if it be deemed a license merely.
It is suggested that if it be assumed that the'use originated in a “permission to travel over the land, that is not necessarily a mere license.” I do not perceive the force of the suggestion. It is certainly an admission that but by permission of Van Rensse-laer he would not be at liberty to travel over it. It assigns that permission as the reason for doing so. It not only does not assert a right adverse to Van Rensselaer, but the contrary, by the clearest implication. It asserts no right, or-claim of right, save only a permissive one.
If he had used the word “ license ” itself, his language would have been no more clear in its natural, or in its legal import— for license is permission, and nothing else.
Besides, the referee does not find that the use of the way has been adverse, or under claim of right, or with the knowledge or acquiescence of the owner. (See Colvin v. Burnet, 17 Wend. 564, 568; Sargent v Ballard, 9 Pick. 255; Parker v. Foote, 19 Wend. 313, and cases cited.)
If it be here conceded that twenty years’ use of a way over lands situated as these were, would, as matter of evidence, raise a sufficient presumption that the party claimed the right, that the use was adverse, and that the owner knew and acquiesced, still the moment it appeared that the use began in mere license or indulgence, there was an end to all presumption. Thus Bronson, J., in Parker v. Foote, says, to authorize the presumption of grant, “the enjoyment of the easement must not only be uninterrupted for the period of twenty years, but it must be adverse, not by *236 leave or famor, but under a claim or assertion of right, and it must- be with the knowledge and acquiescence of the owner.”
Iiow do the terms, “ by leame or favorf differ from “ by permission ? ” So Chief-Jus tice Paekee, in Gayetty v. Bethune (14 Mass. 53), says, it “ must be adverse, or of a nature to indicate that it is claimed as a right, and not the effect of indulgence, or of any compact short of a grant.”
And in White v. Spencer (14 N. Y. 249), Denio, Ch. J., says of the possession and enjoyment of an easement, “if it were by license, no length of enjoyment would prejudice the title of the proprietor.”
And in Colvin v. Burnet, Cowen, J., says, with singular aptness to the condition of wild lands, “ non constat that the whole may not have been as lessee or by comity until the owner shall reach the time when, for purposes which remained suspended, on account of the mere convenience of his neighbor, he comes in for the enjoyment of his conceded rights.”
For these reasons I think the judgment should be reversed, and a new trial granted, "with costs to abide the event.
It is proper to add, on the question raised by the Respondent, whether.this Court has jurisdiction of an action originally commenced in a Justice’s Court, that after the decisions reported in 6 How. 320, and 7 How. 402 and 404, the Code was amended in 1857, and there is now no doubt that the Court has jurisdiction, where the action before the Justice is discontinued because a plea of title to land is interposed.