delivered the opinion of the Court:
The overruling _ of the motion for a new trial by the court below is assigned for error, and the only question presented by this record is one of fact. And it is whether the evidence establishes the charge, that plaintiff in error obstructed a public highway as alleged in the complaint. That he erected the obstruction, there is no dispute, but it is denied that it was in a public highway. Defendant in error makes no claim that such a road was ever established under the statute; but he does contend, that the evidence establishes a public road, both by prescription and»by dedication. On the first of these questions, as might be expected, in tracing the history of such a transaction through a length óf time, the evidence is, to some extent, inconclusive and contradictory.
We think, after a careful examination of all the evidence, that it fails to establish a prescriptive right in the public, to use the portion of the road in controversy as a public highway. The evidence fails to show that there was a continuous use of this track, hy public travel, for twenty years. It appears there were several lines of travel, all converging to the ford on the Illinois river, but they were too far separated from each other to constitute but one road. They do not seem to be mere departures from one common track, to avoid a temporary obstruction. They seem to have been separate and independent, having no portion or even a point in common, except the ford to which they all converged. It is true, that travel may slightly deviate from the thread of the road to avoid an obstruction, at any point in the road, and still not change the road itself. But it is otherwise, when the whole length of the road is abandoned for eight or nine years, and is not sufficiently traveled to prevent its becoming obstructed by the growth of weeds and brush. In such a case, there is not that" continued user which is absolutely necessary to establish a prescriptive right.
Pembroke testifies, and he seems to have had ample means of being informed of all the circumstances during the .time of which he speaks, that the travel was cut off from this road for eleven or twelve years. That the travel on the road in controversy, had only continued four or five years. In this he is substantially supported by the. evidence of Lewis, Trumbo, James Brown, Hardin and others. It also appears that plaintiff in error built a barn, and inclosed a lot and calf pasture, over the old track that was traveled in 1835, as much as twenty years before the trial. On the contrary, the witnesses of defendant in error only speak in general terms, that the travel was about where the road now runs.
A prescriptive right cannot be acquired to pass over a tract of land generally, but it must be confined to a specific line or way. 3 Kent, 419.. The public can no more claim a prescriptive right to pass, at any and all places, over a man’s land, than can an individual. The right must be confined to a definite, certain and precise line. Here this was not the case, as there were several different lines of travel, none of them continuing in constant use for twenty years, the shortest period within which the right can be acquired. ¡Nor can the travel over these various lines be sp united as to make out the requisite length of time. To have that effect it must be confined to one track, and for the requisite period. It must also be open, adverse, and under claim of right. In this case, all of these requisites seem to be wanting, to establish the prescription.
The next question is, whether the evidence proves a dedication. It is insisted that Brown, in 1831, made a dedication of the road to the public. It was attempted to be proved from a conversation, in which Richey asked him why he had settled on the land he then occupied, when Mrs. Brown replied that they were going to keep a hotel and make some dimes by the road. And from Brown’s having said to Dimmick, in 1834, that there would always be. a road at that place, and pointed out the place where he intended to plant an orchard, and said the road would run by it. The land at that time belonged to the government, and Brown had no title to, or interest in it, but was only occupying it as a squatter. Dimmick afterwards entered it, and sold it to plaintiff in error. At the time Brown made these declarations, even if they were sufficient evidence to make a dedication, he was not the owner, and had no right to dispose of, or encumber the land. He could not confer any more or better right than he possessed. It would be unheard of, for a trespasser, or even a tenant, to exercise the right of granting a valid easement over the land of the owner. This evidence fails to establish a dedication by Brown.
There is no evidence tending to show that plaintiff in error ever dedicated the road, or recognized its legal existence. He obstructed it with his barn and fences, and declared he intended to inclose it with a fence as soon as he became able, and we discover in the evidence no declaration, or act, that shows such a design on his part, but the contrary.
To constitute a sufficient dedication, there must be the intention to make it, and also an acceptance. This intention on the part of the owner may be manifested in writing, by declarations, or by acts. But the intention must be unequivocal, and satisfactorily proven; and the acceptance must also appear, and when the public are the donees of the easement, that is usually manifested by acts, such as taking charge of and repairing the highway, by the proper county or town authorities. Plaintiff in error, by none of these modes, manifested a design of making a dedication of the right of way to the public, and if he had, it does not appear to have been accepted. The proper authorities do not seem to have even repaired the road, nor does any other act seem to have been done by them, which, in the slightest degree, indicated that they ever regarded this as a highway, until they caused it to be surveyed and platted, in 1851.
It was argued, however, that the survey and platting of this road, under the order of the highway commissioners, established it as a public highway. What the first order was does not appear*. Whether it found this road to exist, or only that there was a road in that vicinity, or whether they directed the surveyor to ascertain if a road did exist, and if so, to find its locality, does not appear in the evidence. But if it did, it could not affect the rights of plaintiff in error. This was not a proceeding to establish a road, but only to ascertain the courses and distances of one claimed to be already established. This proceeding did not establish or prove anything, but that the commissioners claimed that a road existed where the survey was made. It left the proof of its existence precisely as it was before. It also had the further effect of estopping the public from claiming that the road run upon a different line from the survey. When its existence was questioned, it devolved upon the people to show that they had acquired the right in the place they claimed by the survey. It could not have been the intention of the legislature, when they authorized the public authorities to have such surveys made, to conclude the owner, in his absence, and without any means of being heard to controvert the claim of the public. bTor does the law give him the right of appeal. It does not declare that such a survey shall affect his rights, nor does it. Such a proceeding is exfpcvrte, and without evidence, and is, consequently, not binding upon adverse interests.
From the whole evidence in the case we are of the opinion that it does not sustain the verdict, and that a new trial should have been granted, and that the judgment of the court below must be reversed, and the cause remanded.
Jiidgment reversed.