delivered the opinion of the court,
The first, second, third and fourth assignments of error cannot be sustained, for the reason that the offers covered by the first and fourth are irrelevant, and those covered by the second and third were attempts to introduce evidence, proper enough in chief, by cross-examination.
The exception contained in the fifth assignment was well taken and must be sustained. The defendant had the right to show, by way of mitigation of damages, that the alley in question was not the plaintiff’s only means of access to the back part of his property. The damages resulting from the obstruction of a way, by which, alone, he could reach the public street, must be very different from those resulting from the obstruction of a way of mere convenience. For the purpose proposed, therefore, the evidence should have been admitted.
The answers to the defendant’s third and fifth points, and also to that part of the charge of the court to which exception has been taken, are approved. That there was a gate maintained across the alley was of no consequence if the plaintiff, and those under Avhom he claimed, used it Avhenever they chose so to do. Twenty-one years adverse user of an easement gives rise to the presumption of a grant, but surely the. grant of a private way may exist as well Avith as Avithout a gate. The design of a gate is to protect the way from trespass — from the intrusion of those Avho have no right, but it is not an obstruction, but rather a convenience to those Avho have a right. As Mr. Justice Williams pertinently says, in Connery v. Brooke, 23 P. F. Smith 80, “Has not the owner of a passage-way its free use if he hangs a gate across it at its intersection With the street ? If I grant the free use, right and privilege of the hall of my house, with free ingress and egress at all times, must I take off the door leading to it, or keep it wide open in order that the grantor may have the free use of it ? Or can he not have the free use of it if he can enter it by opening the door Avhenever he chooses ?”
So, that the defendant, or some one of his predecessors in title, gave notice, at a sheriff’s sale of the property, that he claimed the exclusive right and ownership of the alley in question, could not affect the plaintiff if he Avere not present Avhen such notice was given. Even had the plaintiff knoAvledge of such assertion of title it would amount to nothing if he Avere permitted, without interrup tion, to continue his adverse-user. Assertion of title -was not enough, it must, to be effective, be accompanied Avith some act which, at least for the time being, Avould prevent the use of the easement. This part of the ruling of the court below was correct. Not so, however, . the ansAver to the defendant’s sixth point. The learned judge was asked to charge: “ That if the jury believe, from the evidence, that the use of the alley by the plaintiff, or those under AYhom he holds, *186was only at such times as the owners thereof had it open for their own use, without the assertion of any right to use it at other times, or to oppose in any way, the right of the owners to the exclusive control of it, and that said limited use was by the leave, favor and courtesy, or by permission and at the will of the owner, the verdict must be for the defendant.” The answer was: “ The original grant establishing and creating this alley having stipulated that gates should be upon it, if the plaintiff and those under whom he claims, have used and enjoyed the use of the alley as it existed,- with the gates upon it, continuously, uninterruptedly and adversely, whenever they chose so to do, without asking leave, for twenty-one years, with the acquiescence or knowledge of the owners, the plaintiff would be entitled to its use by the title of user.” This was really no answer to the point put. That point contained an accurate statement of the law under the defendant’s view of the evidence. If, indeed, the use of the way by the plaintiff was merely a permissive use, and the jury, from the evidence as it appears in the case, might so have found, then he could not claim the easement as of right, for, in that event, no presumption of grant could arise from the mere lapse of time. In order to establish such right, the user must be adverse, not permissive. The point should have been affirmed without qualification; as it was, the defendant was deprived of an important instruction to which he was entitled.
The judgment is reversed, and a new venire is ordered.