It is very manifest that the vital question in this case was, whether the locus in quo was a public highway. If it was, it is conceded that the defendant might remove the obstruction without being guilty of a trespass, in order to pass over the road and use it for the purposes of travel. Upon this point counsel do not differ. But it is claimed by the plaintiff that the locus in quo never was a public highway, but was a mere private road or lane kept open and used by a few persons and families residing in the neighborhood, and that he had the right to shut it up where it crossed his land, at any time to suit his convenience. It was not claimed that the road in question was ever laid out by the public authorities; but the claim was, that it had become a legal highway by user. The *381court instructed the jury, in substance, that if the road in question was a mere lane or private road intended for the accomo-dation of the defendant and persons residing on his farm, or if the persons traveling through the lane did so by the indulgence or license of the plaintiff, express or implied, then the defendant had no right to remove the fence. The court further told the jury that it was unimportant whether the road was used by two or three persons or a greater number, providing it was used as a public highway for any one to travel upon who desired to, without objection by the owners of the soil over which it passed, for a period of ten years or more prior to the commission of the alleged trespass, and work had been done upon it within that time by direction of the road overseer of the district. "We do not see any objection to these portions of the charge and instructions given. But there was testimony, clear and uncontradicted, that gates and bars, in four different places within the distance of a quarter or half a mile, were put up by persons residing on this road or lane, for the purpose of herding stock. These gates and bars were open through the day, but were closed or put up at night. And the instruction of the court in regard to the inference which might be drawn from the erection of these fences and gates across this road seems to us calculated to mislead the jury when considering the evidence upon that point. The court told the jury that if the defendant was engaged with his father in shutting up the highway as it ran eastward through the land occupied by them, thus rendering the road or lane a mere private way for the benefit of the farm occupied by the defendant, he could not complain if the plaintiff should shut up such private way; “ but the inclosing of a highway in a pen or pasture for the purpose of herding stock or cattle at night, with gates and bars for the accomodation of the travel along the highway, is not such an obstruction as would preclude the defendant from moving a fence, across the lane, intended to exclude travel therefrom altogether. If such gates and bars were exclusively *382for the accommodation of the public,” the court added, it was for the jury to determine whether they furnished evidence of an admission or denial by the defendant of the right of the public.
Now the error in this portion of the charge was in submitting to the jury the question whether the erection of fences and bars across the passage-way, and maintaining them for a number of years, afforded any evidence of an admission on the part of the owners of the soil of any right to use the way for a public road. These acts, as it appears to us, conclusively negative any inference that the owners intended that the lane should be a highway. Eor surely nothing can be more inconsistent with the purpose and object of a public highway than the right of any individual to fence it up or put bars across it. A highway, from its very nature, must be open and free for the passage of all persons, both by day and night, who may have occasion to travel over it. No one has a right to inclose it with gates and bars for the purpose of herding cattle at night; and where the owner of the soil does thus fence up a way, he evinces in the most unambiguous manner an intention to exclude the public from it The plaintiff testified that “ for fifteen years people could not get into the lane through Davis' land without talcing down bars near his house.” The witness Thomas Bring swears to substantially the same thing. On the part of the defense, some of the witnesses testify that bars were built by defendant’s father across the lane about ten years before the trial. Since then, confessedly, two or three gates have been erected at different places in the lane. These acts indicate an intention on the part of the owners of the soil to exclude the public travel, and to retain absolute control over the way. It is impossible for the public to use a highway thus fenced up and obstructed by gates. It is idle to say they may accommodate the public, or exist for any time without destroying the character of the road as a highway. And as there was no conflict whatever in the evidence that the dis*383puted road or lane had thus been obstructed for years — and before it could have become a highway by user, — the court should have told the jury that this fact indicated an unmistakable purpose on the part of the owners to prevent the use of such road as a highway. Eor it did amount to an absolute denial, by acts, of the right of the public to travel over the road and to use it as all highways are and must necessarily be used.
For these reasons the judgment of the circuit court must be reversed, and a new trial ordered.
By the Court.— So ordered.
A motion for a rehearing was denied at the June term, 1874.