I have limited my concurrence in this case to the result reached, because of the language used in the opinion prepared by Mr. Justice Gary in reference to the exceptions complaining of error in the charge as to what constituted a "traveled place." In my view, these exceptions should be sustained, if the Circuit Judge charged the jury that a mere use by the public of a path or way for twenty years continuously would give the public a legal right to its use so as to constitute such way a "traveled place," under the statute. I understand the law to be that, in order to give the public a legal right to a way by reason of twenty years use thereof, such use must be adverse to the owner of the soil. In the case of Hankinson v. RailroadCo., 41 S.C. 20, the Court, by Chief Justice McIver, said: "The fact that all persons who desired to do so had been accustomed to use the footpath at the crossing in question with the knowledge and acquiescence of the railroad company, was not of itself sufficient to establish the legal right to cross, but there must be something more — something to show an adverse use of crossing, or something that the railroad company recognized the right of the public to cross at the point in question. The same principles which govern where the question is as to an alleged right of way over the lands of a land holder acquired by prescription, must govern here." The Court, after citing Rowland v.Wolfe, 1 Bail., 56; McKee v. Garrett, 1 Bail., 341; Golding v. Williams, Dudley, 92; quotes the rule in such case fromSims v. Davis, Cheves, 1, as follows: "That the use of every such way is permissive or held at sufferance, where the claimant has done no act showing that he claimed the right adversely, and the allowance of the use by the owner of the soil has been accompanied by any act which shows a recognition on his part of the right of the claimant to use the road without his permission." This same rule was applied to a neighborhood road, in the case of Hutto v. Tindall, 6 Rich., 400, and there is no doubt that a neighborhood road is a public road. State v. Harden, 11 S.C. 366. When it is *Page 524 sought to establish a right by prescription arising from evidence of long user, such user should be shown to be adverse, whether applied to a mere private way or to a public way, whatever particular term may be used to designate such public way. The case of State v. Sartor, 2 Strob., 61, in so far as it may be deemed inconsistent with this view, is practically overruled by the case of Hutto v. Tindall,supra, but in the case of State v. Sartor, the jury were instructed that such use must be adverse, and the conviction of the defendant was sustained. The case of State v. Floyd,39 S.C. 25, ought not to be given such effect as not only to overrule Hutto v. Tindall, supra. but as applied to this case to sustain a doctrine wholly inconsistent with that announced in Hankinson v. R.R. Co., supra. In the case of State v. Floyd, supra, the exception that the Court erred in charging the jury that the mere traveling over a road through woodland by the public for twenty years raises the presumption of a grant and gives a prescriptive right, was overruled because the Court could not find in the charge that the Judge held as imputed to him. I have been induced to say this much because I was unwilling to indorse the view that a mere twenty years use which is not adverse would constitute a path, or way, or "traveled place," in the sense of the statute. I think, however, that I can concur in the result in this case, on the ground that the Circuit Judge substantially charged that twenty years use by the public should be adverse to constitute the way "traveled place." I confess that the charge is not perfectly clear on this point, but it appears that the Judge charged in these words: "It is oftentimes called a neighborhood road, but it is a public road if they travel it twenty years, and then they have the use of it by any particular adverse use, c." Then follows language which seems to modify or explain this; but in a later portion of the charge there is this unequivocal statement, after correctly stating the rule requiring an adverse use in order to acquire a mere private way by prescription: "A private way possibly differs from what is called a private path in our law * * * a private *Page 525 path is a neighborhood road, which I have tried to explain, running from one public road to another, from a public place to another public place, and (italics ours) is used twentyyears, when it is adverse possession, acts of adverse claim. That becomes a public road and is called a private path."