delivered the following dissenting opinion :
This was a suit to recover damages for alleged obstruction to a public road, occasioning special damage to the plaintiff.
If the road in question was a public highway, and the defendant obstructed1 it, he was liable not Only to criminal prosecution for the injury to the public, but to the plaintiff in this action, if he suffered particular damage from the obstruction. The prosecution and conviction of the defendant for the public offence,, would be no adequate atonement or indemnity to the plaintiff for any special injury he may have received more than others. Mayor and C. C. of Baltimore vs. Marriott, 9 Md., 160; Stetson vs. Faxon, 19 Pick., 147; Angell on Highways, sec. 285.
The special damage claimed to have been incurred by the plaintiff, on one or sundry occasions, being the ground of the action, must be distinctly alleged and proved, and where this is done, the general allegation in the declaration that the plaintiff has sustained damage, is sufficient without a more formal and particular statement. The. 2d and 3d sections of *275Article 75, of the Code, warrant this form of proceeding. The fifth section also of the same Article, dispensing with “time and place,” where they are not material or form no part of the action, permits the plaintiff to recover for injuries* occasioned by the obstruction at different times. This avoids a multiplicity of suits for several and distinct injuries arising from the obstruction, or the insertion of different counts for each injury, if more than one, and can occasion no surprise to the defendant. The declaration sufficiently alleges the special injury sued for, and the demurrer thereto was properly overruled.
The Court below, in the exercise of its sound discretion, was authorized, upon motion of the plaintiff, to strike out the third and fourth pleas; the third plea, if true, afforded no bar to the recovery sought. The defendant could have the benefit of the fourth plea under the general issue. These pleas were immaterial and could be disposed of by the Court, under the motion to strike them out, or by demurrer.
The introductory clause of the first prayer of the plaintiff, however inartificial its terms, substantially submitted to the jury the question whether the road was a public highway, and instructed them if they believed from all the evidence it had been used by the public as a highway for twenty or more years without interruption, they should infer its dedication as a highway. The road under such circumstances is presumed to belong to the public, who acquire a right to use the same from presumptive dedication, after such an uninterrupted user. Day vs. Allender, 22 Md., 528.
The fact of dedication may be proved directly, or inferred from circumstances such as the permissive user by the public, without any act of the owner to shew he only intended a license to pass over the land, and not to dedicate the right of way. The putting up a bar or gate, or excluding by positive prohibition persons from passing, may indicate this purpose^ The common course is said to be by closing the passage for one day in each year. But the erection of a gate is not con-*276elusive evidence of prohibition, as it may have been an original qualification. Best on Pres., sec. 111; 2 Green, on Ev., sec. 644; Angell on Highways, secs. 152, 153. Whenever the 'animus dedioandi appehrs, the dedication is accomplished. The Statute of Frauds does not apply to it. No writing is necessary. It is usually established by circumstances in pais. The user by the public ought to be unequivocal. Circumstances indicating the purpose to permit the x’oad to be used, so long as it may suit the owner’s convenience, and that it was merely a license given revocable at his plcasux*e, will rebut the presumption of dedication.
Presumptive dedication, from the public user is but the conclusion from facts, and is subject to be repelled in every case by evidence, shewing that such was not the intention of the owxxer. The circumstances are not to be tortured so as to convert the liberality of the owner, it may be, in allowing his land to be used, subject at all times to his revocation, into an indefeasible right of way. This would allow the public to take advantage of a mere act of grace and by the repetition, establish an absolute right. The intention to dedicate the road to the public, contradistinguished from its permissive use, should be apparent.
To rebut the presumption of dedication, the jury could weigh the evidence that the x’oad, although used by the public,” was one over which the public authorities exercised no official control, and made xxo repairs on it; that the owner of the soil also used it, i-epaired it, paid the taxes thereon, and excx-cised acts of ownership over it, and did intex'rupt the public in the xxse of it occasionally within the twenty years. “The issue is a mixed questioxx of law.and fact to be found by the jury, under the direction of the Court, upon consideration of all the circumstances.” 2 Greenleaf on Ev., sec. 662.
Whether it is the presumption of law or the inference from the facts deducible by the jury from all the evidence, the jury must find the road to have been dedicated to the public, *277before they could allow any damage accruing to the plaintiff from obstruction to it by the defendant. All the evidence was before the jury; the circumstances of the public user, tending to shew there had been a dedication of the road— the counter-evidence, to prove there had been no dedication. Under the instruction they must consider all the evidence, and they might infer that the road was not dedicated to the public, but was merely used by them at the discretion of the owner. I do not see how this part of the prayer could injure the defendant.
But the latter part is too vague. If the jury should find there had been a dedication to the public, they might consider themselves bound to allow to the plaintiff damages for the obstruction, beyond the amount of the particular injury, for which he could alone recover. They might give damages for conjectural inconvenience to the plaintiff from his immediate connection with the road, and more frequent occasion to use it than others, including probable or possible diminution in the value of his property from the interruption of convenient access thereto. Damages can never be apportioned according to the distance at which a party may reside from the road. The proximity of the plaintiff’s residence to it, and its convenience to him more than to others, gives him no claim, on that account, to damages. Any allowance of that sort would be theoretic and erroneous. The plaintiff could only legally recover for any positive loss sustained. The necessity of having to take another road, or being longer on a journey in consequence of the obstruction, are not sufficient of themselves; but if the plaintiff, having, in part, made his journey over the road, not knowing of the obstruction, is turned back and compelled to proceed, by a more circuitous route, or meeting the obstruction, is prevented from removing it, so that he may pass, this will be sufficient ground of complaint to entitle him to recover damage to the extent of the loss. Angell on Highways, sec. 285.
*278If he did not actually encounter the obstruction, and sustain special damage therefrom, the fact of the existence of the obstruction could give no right to recover for mere imaginary injury. The prayer ought to have been more specific, and should not have been granted as presented, because calculated to mislead the jury, without the limitations above stated.
The second prayer, independent of the objection to it, from its identification with the first, and. the defect therein, which have been stated, was objectionable. Antecedent obstructions might have been placed in the road by the owner of the land, in order to assert his title, before there had been such user as would amount to a dedication. They might be legitimate circumstances, to be considered by the jury in determining whether there had been a dedication or not. The prayer, as presented, might mislead the jury. If the prayer had limited the inquiry to any obstruction, after it had become a public road, from uninterrupted user for twenty years; if the jury so found from all the evidence, it .would not have been objectionable.
If the third prayer did not refer to the first containing objectionable matter, it might have been granted. The fact of gates or bars, as above explained, having been placed upon the road, in itself, would not repel the presumption of dedication of the road, because the dedication might have been with such reservation.
The fourth prayer was unobjectionable. The fact that the road had not been taken possession of by the public authorities, although such a circumstance might be considered by the jury, in the inquiry as to the dedication, would not, in itself, prevent the inference of the dedication of the road to the public, although such a circumstance might relieve the public authorities from responsibility on account of any damage arising from the condition of the road.
The fifth prayer, unaffected by reference to the first, is liable to no objection, in allowing the jury in the award of dam*279ages, io consider any circumstances of violence characterizing the obstruction complained of.
In actions of tort, all the circumstances attending it, make up its character. It may be the result of malicious feeling; or proceed from ignorance, negligence or inexcusable carelessness. It may be wanton and violent, or the result of a purpose, to maintain or assert the supposed rights of the party. The motive and conduct indicative thereof, may aggravate or extenuate the wrong, and the damage for the injury should be in proportion to its true character. Mayne on Dam., 12; Sedgwick on Dam., 455.
The sixth prayer, abstract from the first, in its explanation of the effect of the deeds offered in evidence by the defendant, might have been granted. There is no valid objection to the explanation given to the jury in the seventh prayer, as to the gates or bars on the road. Their purpose and object were legitimate subjects of inquiry by the jury in ascertaining whether there had been a dedication of the road.
The eighth prayer, referring to the pleadings and evidence, in the omission of any reference to the finding of any obstruction, or special damage, by the jury, was defective, and ought not to have been granted. Independent of the objections stated to the prayers themselves, they might have been refused, because of their reference to isolated facts already comprised in the first prayer. It is error to permit a fact to be culled out for special instruction in regard to its particular force and effect. This woidd allow a general prayer as to the effect of all the facts, considered together, in relation to the same subject of inquiry before the jury, to be offered; and afterwards, a prayer, as to the tendency of every fact comprised in the general prayer, considered by itself, upon precisely the same subject. Such a practice is irregular, and calculated to embarrass the jury.
The permission allowed counsel to read certain law to the jury, after they had been instructed as to the law of the case, and to which objection is made in the second bill of excep*280tions, is not the subject of appeal. Augusta Ins. & Bk. Co., vs. Abbott, 12 Md., 349.
Such a course, however, is irregular, but it must be left to the discretion of the Court below in the trial of the cause. Entertaining different views from the majority of the Court, I think the judgment below should be reversed and a new trial ordered.