¶1The question is, whether the plaintiffs have such an interest or right of way from their own land through land claimed by the defendant as that upon its being closed up or obstructed, by the defendant, an action can be sustained by the plaintiffs for the injury thus occasioned or threatened. The question must, probably, be determined upon the facts found by the referee, before whom the case was tried in the court below, and, so far as I regard them material, may be stated as follows: Prior to 1842 Jacob Leddick was the owner of the farm now owned by the plaintiffs, containing about fifty acres. The west line of the Leddick, or plaintiff's farm, was the division line between military lots numbers eighteen and nineteen, in the town of Fayette in the county of Seneca; and the south line was between the land of the plaintiffs and that of the defendant, then owned and occupied by John Arnsberger — both the farms *473 of the plaintiffs and the defendent being subdivisions of military lot number nineteen, before referred to. The land adjoining both farms on the west was, in 1842, owned by one Thomas Miller, being military lot number eighteen, before named. In March, 1842, Leddick conveyed to John Espenour, and through him, in 1865, the plaintiffs derived their title to the fifty acre farm. After Leddick had conveyed to Espenour, and in March, 1842, in pursuance of a parol agreement made by him with Espenour at the time of his conveyance, and on the 16th of March, 1842, he made application to the commissioners of highways of the town of Fayette to lay out a private road for his use, commencing at the south corner of lots eighteen and nineteen, and running north on the line of said lots, through the lands of John Arnsberger and Thomas Miller, to the south line of the land of Espenour, then occupied by Leddick. This application was successful; and on the 23d of March, 1842, the commissioners ordered the road to be laid out to the width of one rod, making the line between lots eighteen and nineteen the west line of the road, and, of course, locating the whole of it on the land of Arnsberger. This road was soon after opened, or supposed to be, in this manner: The fence between the Miller and the Arnsberger farm was removed, as the referee states, "to the west line of the lots, about eight feet," and the road opened and worked, and turnpiked in some places. Three sluices were put in across the road, on the Arnsberger farm, and one on the Leddick farm; a fence was built on the east side of the lane, through Arnsberger's cleared land, the rails being cut and split from timber growing on the road, and the wood was removed from the road by Arnsberger. In this condition the road remained until 1848, or 1849, when one Rogers, having succeeded to the title of the Miller farm, removed the west fence, along the lane (or road) back, on the line between military lots numbers eighteen and nineteen, setting the corners of the fence on the worked part of the road and in part on the sluices across the same. Afterward, the owners and occupants of the Arnsberger farm took away the fence on the east *474 side of the lane or road, and committed various acts obstructing the use of the road or any part of it; and for such alleged injuries the action is brought.
¶2It is found by the referee that Arnsberger acquiesced in such a road as was opened by the commissioners, one-half on the Miller farm and one-half on his own, but he did not find that he ever assented to a road one rod wide to be opened wholly on his own farm. The referee then finds that "after Rogers had removed his east fence back on the line between lots numbers eighteen and nineteen, thus, in fact, crowding the whole road on theArnsberger farm, I do not find any assent on the part of Arnsberger, or his grantees or tenants, of whom the defendant is one, to such a location of the road."
¶3The effect of this finding is, I think, no more than that Arnsberger and his successors in title or possession did not assent to the act of Rogers in removing the fence on the west line of the road as opened, for that act did not per se thrust any more of the road on the land of Arnsberger than had hitherto, with his consent, been occupied for that purpose, and as I understand the case as it is presented for our judgment, no matter whether the plaintiff has any claim against Rogers or not, no more extensive claim is made against the successors of Arnsberger in the title and possession than would or could have been made if Rogers had never removed the fence on the west line of the road; and, as the matter stands before us, I do not see but that as between the present parties, it must be considered as if Rogers had never disturbed the west line of the fence as located when the road was opened in 1842, and to the road thus opened I think the case does not show that the parties represented by the defendant have ever made any objections. The plaintiff in this case, making no present complaint of the acts of Rogers in closing up one-half of the road to which their predecessors in title claim to have been entitled, and content themselves with requiring an observance on the part of the defendant of the rights they had in so much of the road as was upon the Arnsberger farm, if altogether it was maintained to the *475 width of one rod. In that case eight feet only was required to be opened upon the farm last mentioned, and that is the extent of the plaintiff's claim. It is quite impossible to see how the defendant has suffered by the act of Rogers, and the plaintiffs for the present waiving any claim against Rogers, only ask that he shall be held to the same obligation that existed at the time the road was laid out; that is to leave undisturbed eight feet of the road on the land now owned by the defendant, precisely the same as if Rogers had not repudiated as to the eight feet of the road opened upon his land. If the plaintiffs are content with the eight feet of road, it certainly works the defendant no injury, for the way is only needed by the owner or occupant of the Leddick farm.
¶4The order of the commissioners appears to have contemplated a road laid out wholly on the land of Arnsberger, if it be assumed that the drawn line between the farms of Arnsberger and Miller was the line between military lots numbers eighteen and nineteen, and there may be some confusion in the evidence as to that fact. It however appears to be the fact, and it is so claimed by the defendant, that when the road was actually opened and worked, one-half of it was on the land of Miller, and the other half on the land of Arnsberger. That Miller assented to this location and removed his fence eight feet further west, is quite apparent, and that Arnsberger gave his consent is not now denied. The actual laying out, locating and opening of the road was, therefore, consented to by the owners of the land over which it was laid, and I do not at present see why it was not lawfully laid out. (Baker v. Braman,6 Hill, 47.) It was an open and notorious act in which all the parties then concerned participated, and none uttered a word of objection or dissent, and it was used as a private road by the owners and occupants of the Leddick farm for many years thereafter, with like acquiescence and assent. When Rogers became the owner of the Miller farm, he interfered with the west half of the road, but whether rightfully or wrongfully it is not for us now to determine. But this act of Rogers in no way concerned *476 Arnsberger or his successors in title or possession, and conferred upon them no right to disturb so much of the road as was laid over the land of Arnsberger; and so far as I have been able to discover, the defence rests upon no other substantial foundation. If, as I am inclined to think, the road in the beginning was properly laid out, located and opened by common consent, the act of Rogers was wrongful, and that certainly gave the defendant no license to commit a like wrong; but if Rogers had excuse for his action, it affords the defendant no protection for a violation of the plaintiffs' rights in any portion of the road.
¶5In the view of the case I have taken, I do not find it necessary to discuss the question whether or not, under any circumstances, easements or servitudes in land may be acquired other than by grant or prescription; but I think, upon the facts of this case, Arnsberger and his successors in title should be estopped from asserting any right to the eight feet of land laid out and occupied as a way, to the detriment of the owners of the Leddick farm. But the defence appears to rest upon the theory that the road, as actually opened, was one to which Arnsberger gave his unqualified consent, and that no fault could be found with it if Rogers had not interfered with that part located on the then land of Miller, with his consent; but inasmuch as Rogers had undertaken to repudiate the act of Miller, whether rightfully or wrongfully, the defendant thereby acquired the right to imitate his example by attempting to repudiate the acts and consent of Arnsberger, so far as the road had been located on his premises. Such a defence, I think, ought not to prevail, and I am of the opinion that a new trial should be granted.
¶6All concur.