delivered the opinion of the court, October 9th 1876.
All the assignments of error, except the second, relate to the kind of possession necessary to bar a right of way granted by deed. Both parties claim under title derived from Adam Eckert. The plaintiff under deed executed and recorded in October 1790. Eckert thereby sold and conveyed to Conrad Bombaugh, his heirs and assigns, a certain five-acre out-lot, known as lot No. 1 in a plan of lots laid out by Eckert, bounded by Eckert’s lane on the south. The deed further declared, “and the said Adam Eckert doth hereby further grant and confirm to the said Conrad Bombaugh, his heirs and assigns, the free, open, and unmolested use of the twenty-feet alley aforesaid, and extendeth the same by these presents, through his, the said Adam’s, other land, not laid out as aforesaid, down to the low-water mark of the said Susquehanna.” The title to the lot, and the use of the alley, became vested in the plaintiff.
The defendant acquired title to the land, covered by the alley, under deed executed by Eckert to Stacy Potts, in April 1791, conveying three acres, “ also one other small piece or strip of land along the lane or road which runs from the river towards Paxton creek, between said road or lane and the out-lots * * * between lands of William Maclay and said lane and runs along the side of the lane,” &c. Thus the use of the lane was expressly conveyed by *209deed to the plaintiff’s grantor, and the continuance of the lane was distinctly recognised in the subsequent deed to Potts, from whom the defendant derived title. The testimony shows the subsequent continuance of the lane and the use thereof for many years. The precise extent and duration of that use are not very distinctly proved. Between the turnpike and the river, there was no fence on either side, but the ground was open and used by the plaintiffs as a way of access to the river.
The plaintiff’s privilege being thus reserved by deed, time did not run against it until some default, negligence or acquiescence is shown, or may be fairly presumed in him: Butz v. Ihrie, 1 Rawle 218. In that case it was held that the mere non-user for thirty-two years of a privilege reserved by deed to swell water on the land of the grantee, did not bar or forfeit the privilege reserved. So in Nitzell v. Paschall, 8 Rawle 82, it was held that a privilege devised to swell the water back on other lands of the devisor, might be resumed, although the use had been abandoned for at least thirty-eight years. There is no prescription or presumption from mere non-user of a servitude: Linderman et al, v. Lindsey, 19 P. F. Smith 93. It cannot be extinguished by disuse or lost by non-user: Curtis v. Keesler, 14 Barb. 611; Smiles v. Hastings, 24 Id. 44; Erb v. Brown, 19 P. F. Smith 216. It is true in Nitzell v. Paschall, supra, Mr. Chief Justice Gtbson says: “ I think there cannot be a doubt but that lapse of time may be so great as to afford a natural presumption” of the loss of a license granted by deed. He also says when acquired by adverse possession for twenty years, it may, he should suppose, be lost by non-user for the same period. But “where it has been acquired by grant,” he proceeds to say, “ it will not be lost by non-user, in analogy to the Statute of Limitations, unless there were a denial of the title or other act on the adverse party to quicken the owner in the assertion of his right.” This latter view of the law is affirmed in Erb v. Brown, supra. So in Linderman v. Lindsey, supra, it was held that nothing less than an absolute denial of the right followed by an enjoyment inconsistent with its existence for twenty-one years, can amount to an extinguishment.
Turning to the evidence in the case before us, we see that no exclusive right of way in the lane was granted to Bombaugh. So long as his free and unmolested use of it was not interfered with, the grantor and all others might use it without any denial of the plaintiff’s right. Whether the plaintiff used it in each year or after an interval of several years, his right continued unless it was denied and followed by an enjoyment inconsistent therewith. Nor would the mere fact that the defendant, and those whose title he had acquired, claimed the right of soil in the land covered by the lane, extinguish the plaintiff’s right of way. Such a claim was not inconsistent with the plaintiff’s easement or servitude, unless it was *210followed by an adverse possession excluding the plaintiff therefrom. In so far as the house had been constructed and maintained, against the plaintiff’s consent, in the lane, it was a denial of his right, and he may have lost his privilege, by lapse of time, over the ground covered thereby. There is some evidence that the brick house extends further into the lane than the old log house did. This will be a question for the jury to determine. So in regard to what one witness calls the “rough porch” at the Hammond house. The plaintiff testified, “I gave permission to use it so long as I had room to go to the river.” The learned judge charged, although this permission was given to Hammond, yet it did not show the latter used it on that authority. The fact should have been submitted to the jury to find whether the porch was erected or maintained by permission of the plaintiff. If so, it cannot be said his exclusion from the ground covered thereby was in denial of his right; but it was a recognition and affirmance thereof. It was in no sense adverse.
As to the part of the lane not obstructed by house or porch, the nature of the acts done on the part of the defendant gives character to his adverse possession: Lodge v. Patterson, 3 Watts 77 ; Dikeman v. Parrish, 6 Barr 211. Therefore an entry by the defendant, or by one whose title he acquired, under a deed calling for boundaries that would embrace the lane or alley, and holding the same continuously for twenty-one years, would not of itself bar the plaintiff’s right of way. There must have-been superadded an absolute denial of his right united with an occupation inconsistent with its exercise.
When one seeks to prove the abandonment of a servitude created by deed, he must do more than show it to have been rarely exercised by the grantee. In this case the plaintiff had no exclusive use of the alley. It was concurrent only. He therefore had no right to take such a possession as would have excluded any one who did not interfere with his free, open and unmolested use thereof. His reserved right to such use was spread on the record. The existence of the lane was in the defendant’s chain of title. The latter therefore had constructive notice of plaintiff’s claim. But the testimony of Jacob S. Schlayer goes further. He testifies that when the defendant was about buying the land, he assisted him in its measurement. That he “ argued the lane did not belong to the house.” That -the defendant answered substantially, it did not belong to the people of whom he had bought; but he would take it up and pay taxes on it.
We think, therefore, the learned judge erred in the view he expressed, both in regard to the extent the plaintiff was obliged to use the grant to avoid a presumption of its abandonment, and also as to the effect of the defendant’s claiming the ground covered by his deed, and the assignments are substantially sustained.
*211The portion of the charge covered by the second assignment is not important and we do not see that the plaintiff was prejudiced thereby.
Judgment reversed and a venire facias de novo awarded.