The opinion of the court was delivered by
Mr. Chief Justice SimpsoN.The plaintiff, respondent, brought the action below to recover damages for obstruction to a right of way alleged to be appendant and appurtenant to plaintiff’s “Caneslatch” plantation. The defendant demurred orally on the ground that the complaint did not state facts sufficient to constitute a cause of action. This demurrer was overruled by his honor, Judge Hudson presiding, and the case proceeded to a verdict for the plaintiff. The exceptions allege error to the judge, first, because the demurrer was not sustained, and then to the admission of certain testimony; to his refusal to charge certain requests, and to his charge in several particulars.
*558First. Did his honor err in overruling the demurrer ? A complaint is obnoxious to a demurrer of the kind interposed here, when the plaintiff will fail in his action unless he proves other facts than those alleged in the complaint; in other words, when assuming the facts alleged to be true, vet upon said facts alone he cannot recover, as matter of law. Testing the complaint by this rule, we think the demurrer was properly overruled. It is true, the complaint is not as definite in the allegations of the particular facts upon which the right of way claimed rests, as it might have been. A right of way founded upon prescription, and claimed to be appendant and appurtenant to a certain close or plantation, must have one of its termini upon the plantation to which it is claimed to be attached. It must have been in the adverse use of the claimant and those under whom he claims for at least ttventy years, and in some kinds of ways at least, appendant and appurtenant, it must be essential to the enjoyment of said close or plantation ; and perhaps there may be some other requisites.
These facts do not appear in terms in the allegations of the complaint, but wm think they are covered by the general allegation “that the said William S. Whaley, during his life-time, and the plaintiff since his death, had a right of way by prescription on foot and with horses, * * * by means of a road beginning on the said Caneslatch plantation, and appendant and appurtenant thereto, * * * out to and across the public road leading to John’s Island Ferry, through, over, and upon the adjoining lands of the said defendant, known as the Seven Oaks plantation.” It seems to us that this general allegation by a liberal intendment included the necessary probative facts above, and entitled the plaintiff to offer testimony thereto, and which, upon the demurrer, was properly assumed to be admitted.
Next, as to the admission of certain testimony. The point made by the appellant is, “That his honor erred in permitting testimony under the complaint to be given of user of a road which lay wholly on defendant’s land, and to allow such testimony to go to the jury as proof of user of the way claimed in the complaint.” The folio at which this alleged testimony was allowed is not pointed out, nor have we been able to find from an examination *559of the “Case” where any objection was interposed by appellant, raising the question here made. When the plaintiff was upon the stand as a witness the appellant objected several times, but no where as to testimony of the character mentioned, nor have we been able to find that any such objection was interposed to the testimony of either of the other witnesses introduced by the plaintiff, at the time of their examination. But, supposing that we may have overlooked the objection, we may say that the objection is untenable. The question involved was the adverse use of the road by the plaintiff and his father, how long, &c. The road on the defendant’s land was the road prescribed for, and testimony as to its adverse use, it appears to us, was competent at least, its value being dependent upon the fact, whether said road could be connected with the “Oaneslatch Plantation” in such long adverse use as to make it appendant and appurtenant thereto.
Next, that his honor erred in charging, “That if the jury find that the plaintiff’s father and plaintiff after him, have for twenty years continuously used the way over defendant’s land, described and claimed in the complaint, their verdict must be for the plaintiff.” There are two kinds of ways, to wit: ways appendant and appurtenant, and ways in gross. The first is attached to and belongs to land, inheres in it and goes with it, and is entitled to be enjoyed by whomsoever becomes possessed thereof, in whole or in part; the second is a personal right, and is not transferrible. Twenty years adverse use is a necessary condition to the obtaining of both of these -ways by prescription. But in reference to a way appendant and appurtenant, something more is necessary, to wit: such a way must have one terminus upon the close to which it is claimed to be appurtenant, it must inhere in said close, and it must be essentially necessary to its enjoyment, while with a rvay in gross these conditions are not necessary. That kind of way rests entirely upon the adverse use. Now, in view of these principles, we think the charge of his honor here was erroneous, as it based the right of recovery by the plaintiff simply upon his adverse use and that of his father, not explaining the difference between the two kinds of ways and letting the jury understand that in this action, claiming, as it did, a way *560appurtenant and appendant to the Caneslatch plantation, it was necessary to prove nothing more than twenty years adverse use by his father and himself, of the road described. The charge applied to a way in gross as much as to a way appurtenant, and we think was on that account misleading.
Next, error is alleged, because his honor declined to charge upon request, that an indispensable element of a way appurtenant and appendant is that it must be “essentially necessary” to the enjoyment of the plantation to which it is claimed to belong. His honor not only declined this request, but charged to the reverse, saying that it was not necessary that the “way should be essential to the use of the plantation,” thus eliminating that feature from the case, and from the consideration of the jury. The important difference between a way appurtenant and one in gross, as has already been stated, is, that a way in gross is an individual right, non-transferrible, and dying with the claimant. A way appurtenant, however, makes the estate to which it is attached a dominant estate and the one over which it runs a servient one, and this relation lasts as long as the estates last, and it inheres, not only in the dominant estate as a whole, but to every portion and subdivision thereof. It is a complete servitude which runs with the land. It would seem in principle, therefore, that before such an important right should be acquired by one close over another, that there should be some necessity therefor, it should not be a mere matter of convenience. And such seems to be the law.
This court said in the former appeal, through Mr. Justice Mclver-, delivering the opinion: “That a way to be appurtenant, it must adhere in the land and be essentially necessary to its enjoyment” (Whaley v. Stevens, 21 S. C., 223), and further that the complaint therein was defective as a complaint for a way appurtenant — “that it did not allege that it was necessary for the enjoyment of the land known as Caneslatch.” Mr. Washburne says: “Ways are said to be appendant or appurtenant, when they are incident to an estate, one terminus being on the land of the party claiming. They must inhere in the land, concern the premises, and be essentially necessary to their enjoyment.” Washb. Eas., ch. 11, § 5, page 217.
*561We think the refusal of the judge to charge as requested on this subject, was in conflict with these authorities, as well as his charge thereon.
We do not think that his honor erred in declining to charge as requested, “That either of the parts of the way so laid in the complaint and claimed in proof being beyond the power of plaintiff to acquire by prescription, the entirety and continuity of the way as laid in the complaint is broken, and the proof of user of the remaining part, viz., that over defendant’s land and creek, does not and cannot support the complaint, or prevail as evidence of prescription of the entire way as claimed.” This request involved the force and effects of efacts, of which it was the province of the jury to consider and not the judge.
The appellant further excepts, that his honor charged that a private way might cross a public road as well as a public road might cross another. Supposing that his honor- meant that a private way might be obtained by prescription across a public highway, as against the owner of the soil, we think this was error. Wash. Ease., 138, 164; Wait Act. & Def., 695; State v. Jefcoat, 11 Rich., 529; Hamilton v. White, 5 N. Y., 9. Besides, the principles upon which a private right of way may be prescribed for would seem to exclude this. Prescription is founded upon adverse use for a period of at least twenty years, adverse to some one -who has the right to object, and who did not object. Upon such use the law presumes a grant from the former owner arising from his long acquiescence. To give this prescription a safe foundation, however, of course the former owner must know of the adverse use and must have been in condition to have opposed it, with the right to do so. Now, in the case of a public highway, every citizen has the right to be upon it, and to use it as he may desire, to go up and down, or across it. And we do not see how using a public highway can be adverse to the rights of the owner of the soil upon which it runs. Every one has the right to be there because it is a public highway, and the owner of the soil, even if he knows that one is there, has no right to object, and his acquiescence cannot be properly construed into an acknowledgment that the party is there by virtue of some *562private claim, to which he is presumed to have assented and which may ripen into the presumption of a grant.
It is the judgment of this court, that the judgment below be reversed on account of the errors herein above.