We propose only to examine the instructions given for defendant, as errors apparent therein are sufficient to reverse this judgment.
The court very properly instructed the jury that a highway could' be established and proven by prescription, by dedication, and by laying out the same in the manner provided by the statutes. 2 Greenl. Ev., Sec. 662.
Prescription for private rights and easements in the lands of others were, by the earlier decisions upon the old common law, made, time whereof the memory runneth not to the contrary. But gradually they began to conform to a fixed period of years, which would bar a writ or action for the assertion of title, (see Angelí on -Lim. 2, 3, and notes,) in analogy to the statutes of limitation, and which was subsequently adopted as the rule in England by statute 2 and 3 William IV, Cap. 21. Prescription on twenty years’ possession had become a fixed principle under the statute of limitations. 21 Jas. I, id., p. 3 and note 2. For though not so in name, it was so in effect, as a bar of any action for the assertion and maintenance of the right. The date for legal memory was first fixed from remarkable periods, and then by statute, West 1, (3 Edw. I,) Cap. 39, from 6th July, 1189, the first day of Edward I’s reign; by 32 Henry VIH, Cap. 2, it was shortened to sixty years, and to twenty years by 21 James I, Cap. 16; and distinctly recognized as a prescriptive right by 2 and 3 William IV, CC. 71 and 100. Best on Presump. 87 to 100, (22 Law Lib. 68, &c.;) Mar thews on Presump. Ev. 309, 310 ; 2 Greenleaf Ev. Sec. 662; Ang. on Lim., pp. 11 to 14. So we make prescription in effect correlative with the bar of a real action to recover the land, or of a right of entry upon it. I will not here discuss-what effect the shorter periods of limitation may have in reducing this period of prescriptive right by analogy.
We come to the question of dedication.
We have said in Warren v. The Trustees of Jacksonville, 15 Ill. R. 240, that dedications that may be made without writing, are not within the statute of frauds ; that the public community is an ever existing body, capable of becoming and taking as grantee for public uses, and its interests are a sufficient consideration to support the grant. The mode is immaterial; the real thing is the grant or dedication which may be manifested by express or implied consent, from acquiescence in the user. And these positions are, we think, abundantly sustained by the authorities referred to; and it does not depend upon any fixed period of time,—2 Greenleaf Ev., Sec. .662, and notes,—but is a mixed question of law and fact, and the particular circumstances of each case will be submitted to the jury, not only of the dedication, but of the extent or quantity of land embraced in it. The voluntary use of a way by the public, with the assent of the owner of the soil, may not of itself be sufficient to make it a public highway, and impose upon the proper public authorities the duty of repair; but when these are connected with proof of its actual recognition and repair by the proper public authorities, the whole facts should go to the jury, from which they might be warranted in finding from such use, by the public, acquiescence of the owner, and recognition and repair by the proper authorities, that the way is a public highway in the full sense of that term. The fifth instruction is not in conformity to these principles. It contemplates an affirmative act or declaration of a more formal and solemn character than is essential; for mere acquiescence in its known and avowed use and repair as a highway by the public and public authorities, may justify the inference under circumstances, and its actual use and repair will be evidence of its acceptance for such purposes.
The sixth instruction would exclude an act of the owner as evidence when taken alone, which we think is a proper fact to go to the jury.
The seventh instruction is too broad. Had it been confined to the defendant alone in its conclusion of rebuttal, and excluded any other acts or declarations of his than those recited, it might be correct. But he must be estopped by the acquiescence of his grantors, (even though it be the government, Dimon v. The People, 17 Ill. R., post in which case the act recited could only repel the presumption from his own act.
Whether “ mere permission of the owner of the land for the public to pass across it,” amounts only to a “ license, and may be revoked,” is not a question of law in itself, but a fact, which, with the accompanying circumstances in this case of a recognition and repairing it by public authorities, should have been left to the jury.
The ninth instruction is erroneous.
The eighteenth is contrary to the principles laid down in Sprague v. Waite, 17 Pick. R. 315, 316, and Hannum et al. v. The Inhab. of Belchertown, 19 Pick. R. 313.
The twentieth is obnoxious to the same remarks and principles laid down in respect to the fifth.
The twelfth instruction would make the fixing of a width to the road an essential element of the validity of their order establishing it. And so I should treat it upon direct appeal from that order, as I have shown in Morgan v. Green, 17 Ill. R., post. But these proceedings are here collaterally attacked, and after a use and repair by the public of some twenty-three y'ears. The viewing and laying this road is cumulative, as is also that of a township road. The jury may infer and find a width; they may infer and find a dedication of so much as was actually used, even extending to.double tracks, as in 17 and 19 Pickering, and the court will intend that it was of the usual width fixed by law. Lawton v. Commissioners of Cambridge, 2 Caine R. 183.
By act of 1827, Rev. Law 1833, p. 542, Sec. 12, roads were to be not less than thirty nor more than fifty feet wide, and this was the law in 1830, when this road was viewed.
The act of 1845, Rev. Stat. p. 487, Sec. 33, fixed a maximum and minimum width for roads at sixty-six and thirty feet, within which the County Court was authorized to vary different roads. I should not declare the location and establishment of the road void for an omission to enter for it a width when collaterally assailed, but would intend it to be not less than thirty feet.
Proof by plaintiff that he entered the close, and left it on and within the limits of the highway, might warrant the jury in inferences' that he had not departed from it in crossing the close.
The first and second instruction would restrain and forbid the jury from drawing legitimate conclusions as inferences from facts in evidence.
We need not comment upon the evidence; the cause should be submitted to another trial.
Judgment reversed and cause remanded.
Judgment reversed.