On Petition for Rehearing.
Myers, J.An able and earnest petition for a rehearing in this case has led us to a careful review of the original opinion.
3. The principal contention of the learned counsel for appellee is that, in order that a highway arising from user may be “ascertained, described and entered of record,” it must appear that the use has been adverse, uninterrupted, and under a elaim of right, in analogy to the acquisition of easements generally by prescription, and reliance is placed upon the ease of Shellhouse v. State (1886), 110 Ind. 509, and like cases.
In the case just cited the question was presented as to an alleged public alley in a city, involving dedication and prescription, and it was held, and we think correctly, that a mere permissive use, where the way was closed by the owner *676of the fee at night by gates or bars, evinced not only a lack of intention to dedicate, but also such interruption as prevented the establishment of a prescriptive way.
7. The rule is established by a long line of cases in this State, and in other states, that, to gain a way by prescription, the use must be uninterrupted for twenty years or more, but the ease of Shellhouse v. State, supra, has no bearing here, for the reason that there is no jurisdiction in boards of commissioners over ways in cities; and while the highway is, in a sense, a prescriptive way, it is a statutory way, as distinguished from a common-law prescriptive way, and if, as we have seen, it is immaterial whether it is used with the consent, or over the objection, of the landowner, it must follow that the obstructions in the way, or interruptions of the use, could be no more than overt acts of objection to the use, and no more effective than declarations, and, under appellant’s theory, amount to assertions against, or interruptions of, the public use, and negations of the right. But the difficulty is that the evidence is not in the record, and the findings show that these interruptions were not made, or obstructions placed in the way, for the purpose of obstructing public travel, and the public continuously asserted the right to use it, by removing the obstructions when necessary, which is certainly equivalent to a finding of an assertion against the private right of appellee. Besides it is expressly found that the public continued to use it as of right, as a public way, notwithstanding the obstructions.
Appellee contends that these obstructions and interruptions were consistent with a seasonable use of the way as private property, and therefore assertions against the public right. But if neither his consent nor his objection was material, and the public continued to use the way, these acts were immaterial. At most they were negative assertions or objections against the public right, which the findings show the public continuously asserted, and asserted contrary to the exclusive private right of appellee. The obstructions *677were removed, and travel continued at will. The findings show clearly such use as public highways are usually put to, and without objection, and conversely with consent, unless the obstructions were in-and of themselves objections, but that inference is overcome by the findings. If user by the ' public with the consent of the landowner for such a length of time that public accommodation and private rights might be materially affected by an interruption of the enjoyment is sufficient to raise a presumption that the owner intended a dedication, much more must it be true, under the findings here, that such use is shown as the statute contemplated to authorize the ascertainment of the outline of the way, as a public highway, and for the same reasons as in case of highways by dedication. Pittsburgh, etc., R. Co. v. Town of Crown Point (1898), 150 Ind. 536; Town of Fowler v. Linquist (1894), 138 Ind. 566; Town of Marion v. Skillman (1891), 127 Ind. 130, 11 L. R. A. 55; City of Indianapolis v. Kingsbury (1885), 101 Ind. 200, 51 Am. Rep. 749.
10. It is also claimed that the general statute with respect to the acquisition of easements (§6178 Burns 1908, §4321 R. S. 1881) should be construed with the highway statute. We think counsel in error in this view, for that statute clearly refers to adverse use, while the construction given to the highway statute has been that it is immaterial whether the use is with consent or over objection, for it is not a way arising by prescription strictly, but a statutory way. The statute with respect to easements contemplates a prescriptive easement, in analogy to the common law, and consequently and necessarily the highway statute marks a distinction from prescriptive easements, because in the latter, consent or permissive use would never ripen into an easement through the want of adverse uninterrupted use. In the former we have seen that neither consent nor objection is material. Conceding that the obstructions amount to assertions of objections, they are not availing as against a finding of the continuous use by the public in total *678disregard of the obstructions, and for these reasons the statute respecting the subject of easements in general cannot be controlling here, even though it applies to public easements, which we doubt, but express no opinion upon that subject.
9. It is also urged that the first clause of §7663 Burns 1908, Acts 1905, p. 521, §15, changes the rule as laid down by this court in the construction of former statutes, that the way should be the width at the end of the twenty-year or more period, such construction beginning with Epler v. Niman (1854), 5 Ind. 459, by the language “all highways heretofore laid out according to law, or used as such for twenty years or more, shall continue as located and as of their original width, respectively, until changed according to law. ’ ’ If this clause can be said to refer to a case under the statute for ascertaining and recording highways, it could not change the result from the fact of a change of width within the twenty years, for the phrase “their original width,” as we understand it, is the width when the proceeding is begun to ascertain and record it, and does not refer to a possibly wider or narrower way at some remote or recent period. The main question is not one of the width of the way so far as the public right is concerned, but of the existence of the way. There would be quite as much reason in holding that the width of the way should be the width of the traveled track, as the width at some remote period, when there may have been no enclosure of the way, or a mere track, or a wide way. The statute should have a reasonable construction to effectuate its intent. To fix the outlines as parties owning the land have themselves fixed them is reasonable, and attended with no hardship.
The court is keenly alive to the rights of private property, and to the preservation of those rights without unlawful invasion, but it is also confronted with a condition presented by the findings in this case, which impels the conclusion that a way by twenty years’ user is shown, and that the petition for a rehearing should be, and is, therefore? overruled-