eral or special statutes.182 Acts of the owner which interrupt possession and use by the public will destroy any claim for proportionate time and the prescription must commence anew.183 They must, however, be done by the owner of the property or those acting in his behalf." 184 182 City of Chicago v. Howe, 169 Ill. 260, 48 N. E. 408. Twenty years. State v. Green, 41 Iowa, 693. Ten years. State v. Waterman, 79 Iowa, 360, 44 N. W. 677. Ten years. State v. Teeters, 97 Iowa, 458; Gray v. Haas, 98 Iowa, 502; Coakley v. Boston & M. R. Co., 159 Mass. 32, 33 N. E. 930; Stockwell v. Inhabitants of Fitchburg, 110 Mass. 305. Twenty years. Com. v. Coupe, 128 Mass. 63; Wayne County Sav. Bank v. Stockwell, 84 Mich. 586, 48 N. W. 174; Leonard v. City of Detroit, 108 Mich. 599; State v. Young, 27 Mo. 259; Louisville, H. & St. R. Co. v. Com., 20 Ky. L. R. 371, 46 S. W. 207. Fifteen years. State v. Auchard, 22 Mont. 14, 55 Pac. 361. Eighteen or nineteen years. Engle v. Hunt, 50 Neb. 358; Lewis v. City of Lincoln, 55 Neb. 1, 75 N. W. 154; Hill v. McGinnis, 64 Neb. 187, 89 N. W. 783; Eames v. City of Northumberland, 44 N. H. 67. Twenty years. White v. Wiley, 59 Hun, 618, 13 N. Y. Supp. 205; Walcott Tp. v. Skauge, 6 N. D. 382; Le Roy v. Leonard (Tenn. Ch. App.) 35 S. W. 884. Thirty years. Shell v. Poulson, 23 Wash, 535, 63 Pac. 204; McGrath v. Nickerson, 24 Wash. 235, 64 Pac. 163. 183 Whaley v. Wilson, 120 Ala. 502, 24 So. 855; Harper v. State, 109 Ala. 66, 19 So. 901; Jones v. Phillips, 59 Ark. 35; Huffman v. Hall, 102 Cal. 26; O'Connell v. Bowman, 45 Ill. App. 654. The construction of a fence which changes the direction of travel is a substantial interrup tion to permissive use. Town of Brushy Mound v. McClintock, 150 III. 129; Shellhouse v. State, 110 Ind. 509, 11 N. E. 484. Twenty years. Mills & Allen v. Evans, 100 Iowa, 712, 69 N. W. 1043, 38 L. R. A. 128; Weld v. Brooks, 152 Mass. 297, 25 N. E. 719. In the absence of eviwith respect to the putting up of a fence or barrier across the way, such action will not constitute, as a matter of law, an interruption of a permissive use. Campau v. City of Detroit, 104 Mich. 560, 62 N. W. 718. The listing of land used as a highway and the levy of taxes upon it will not affect the rights of the public where an easement has already been acquired by prescription. Kansas City, C. & S. R. Co. v. Woolard, 60 Mo. App. 631; In re Howland Bridge, 60 Hun, 581, 14 N. Y. Supp. 845; Lewis v. City of Portland, 25 Or. 133, 22 L. R. A. 736; Cunningham v. San Saba County, 11 Tex. Civ. App. 557, 32 S. W. 928, 33 S. W. 892; Hall v. City of Austin, 20 Tex. Civ. App. 59, 48 S. W. 53. 184 Madison Tp. v. Gallagher, 159 Ill. 105, 42 N. E. 316; Hynes v. Police Jury of Madison Parish, 22 La. Ann. 71; Elliott, Roads & Streets, § 174. "If the right to the way depends solely upon the user, then the width of the way and the extent of the servitude is measured by the character of the user, for the easement cannot be broader than the user." § 741. Physical extent of prescriptive right. In the determination of cases which involve the question of a prescriptive right, the law favors the owner of the property. This principle applies and controls the physical extent of the highway claimed to have been acquired through the prescription.185 Travel generally across a tract of land will not create prescriptive rights;186 there must be well defined lines of travel 187 and only the tract so used and the adjacent land absolutely necessary for ordinary repairs will pass.188 The principle suggested at the first 185 Marchand v. Town of Maple Grove, 48 Minn. 271, 51 N. W. 606; Alpaugh v. Bennett, 59 Hun, 45, 12 N. Y. Supp. 398. See, also, cases cited in last note. 186 Cheney v. O'Brien, 69 Cal. 199. The making of a way by prescription will not be prevented, however, by the fact that when on certain occasions certain portions were soft and muddy, the adverse users avoided the places by turning out. Friel v. People, 4 Colo. App. 259, 35 Pac. 676; Town of Brushy Mound v. McClintock, 150 Ill. 129, 36 N. E. 976; O'Connell v. Chicago T. T. R. Co., 184 Ill. 308, 56 N. E. 335; State v. Auchard, 22 Mont. 14; Ferdinando v. City of Scranton, 190 Pa. 321; Hall v. City of Austin, 20 Tex. Civ. App. 59; Galveston, H. & S. A. R. Co. v. Baudat, 21 Tex. Civ. App. 236. 187 District of Columbia v. Robinson, 180 U. S. 92. "The right to an easement of common and public highway acquired by a prescriptive use or long use of the road is confined to the lines and width of the road as actually used for and at the end of the period of twenty years, and does not extend to a greater width beyond the width of the road so actually used." City of Ottawa v. Yentzer, 160 Ill. 509, 43 N. E. 601; State v. Auchard, 22 Mont. 14, 55 Pac. 361; Nelson v. Jenkins, 42 Neb. 133, 60 N. E. 311. A slight deviation at times from the common way will not interfere with the acquirement of prescriptive rights. Engle v. Hunt, 50 Neb. 358, 69 N. W. 970; South. Branch R. Co. v. Parker, 41 N. J. Eq. 489; Bayard v. Standard Oil Co., 38 Or. 438, 63 Pac. 614; Hart v. Town of Red Cedar, 63 Wis. 634. 188 District of Columbia v. Robinson, 180 U. S. 92. "The right to take gravel within the limits of the road which might be established by the evidence, and in the exercise of grading, was conceded. The right to take gravel outside the limits of the road or not for the purpose of grading it, was denied, and properly denied. It was an easement in the land, not the fee to the land, which the public acquired by the road, and the measure of the easement was the width of the road. The right to grade and improve was incident to the easement, but the easement gave no other right in the soil or to the soil. The right to remove soil from one part of a road to another part may be conceded. And it has been decided such right extends to other streets forming parts of the same system. Of this, however, we are not required to express an opinion, as it is not in of this section also results in throwing the burden of proof on those claiming the highway by prescription.189 The elements of a prescriptive right must clearly and unequivocally appear and by a preponderance of the evidence.190 Mere user of a road over private land by the public will not make it a public road.191 Evidence. Parol evidence of use is competent in proving or attempting to prove the establishment of a highway by prescription,192 and evidence is competent respecting the lines and corners. of ways, streets and blocks indicated by old fences or old buildings, the highway itself as used for many years, and stakes and monuments established by former surveyors. The fact that a volved in the prayer." Epler v. Ni- of State v. Caldwell, 2 Speer (S. C.) 162; Dodson v. State (Tex. Cr. App.) 49 S. W. 78; Whitesides v. Green, 13 Utah, 341, 44 Pac. 1032; Gaines v. Merryman, 95 Va. 660. But see Pillsbury v. Brown, 82 Me. 450, 19 Atl. 858, 9 L. R. A. 94n. Twenty years. Yakima County v. Conrad, 26 Wash. 155, 66 Pac. 411. 189 District of Columbia v. Robinson, 14 App. D. C. 512. Twenty years. Cooper v. Monterey County, 104 Cal. 437, 38 Pac. 106; Mills v. Evans, 100 Iowa, 712; Adams v. Iron Cliffs Co., 78 Mich. 271; State v. Fisher, 117 N. C. 733, 23 S. E. 158; 193 Cunningham v. San Saba County, 190 Louisville, N. A. & C. R. Co. v. Miller, 12 Ind. App. 414, 40 N. E. 539; Richardson v. Davis. 91 Md. 390, 46 Atl. 964. 191 Sprow v. Boston & A. R. Co., 163 Mass. 330; Dicken v. Liverpool Salt & Coal Co., 41 W. Va. 511, 23 S. E. 582. See, also, cases cited under 2nd paragraph of preceding section. 192 Fowler v. Savage, 3 Conn. 90; Blumenthal v. State, 21 Ind. App. 665; McKenn v. Porter, 134 Ind. 483, 34 N. E. 223; Mosier v. Vincent, 34 Iowa, 478; State v. Davis, 27 Mo. App. 624; Moore v. Hawk, 57 Mo. App. 495; Cherokee Strip Live Stock Ass'n v. Cass Land & Cattle Co., 138 Mo. 394; Lewis v. City of Lincoln, 55 Neb. 1; Speir v. Town of New Utrecht, 121 N. Y. 420, 24 N. E. 692. Mere proof of use is not sufficient to establish a highway by prescription where there is no evidence of the circumstances under which the public used it or that the public authorities kept it in repair or recognized it in any way. Kirby v. Southern R. Co., 63 S. C. 494, 41 S. E. 765; Race v. State, 43 Tex. Cr. R. 438, 66 S. W. 560. road has been worked as a public highway and recognized as such is evidence, but not always the best, of its establishment by prescription.194 Where statutes require the expenditure of money and labor during the period of limitation in order to acquire title by adverse user, it is not necessary that the whole of the highway be improved; if money or labor are expended on any part of it, it is sufficient.195 § 742. The acquirement of prescriptive rights against persons under disability. The cases vary in regard to the acquirement of prescriptive rights as against infants, lunatics, married women, or others protected from the running of the statute of limitations with respect to their property rights. Some authorities hold that even a publie corporation cannot acquire as against these persons any rights by prescription 196 but the better doctrine, as sustained by the greater number of decisions, is that prescriptive rights may be acquired against persons under disability.197 If the law permits a public corporation to acquire highways or public property through the doctrine of prescription, in order that the right be of a substantial value it should be acquired against all having an adverse claim. Property is acquired by a public corporation un 193 Illinois Cent. R. Co. v. City of Bloomington, 167 Ill. 9, 47 N. E. 318. Evidence is admissible against a claim by prescription that the state during a portion of the prescriptive time levied and collected assessments on the land in question for local improvements. Stetson V. Faxon, 36 Mass. (19 Pick.) 147. Sixty years. Bagley v. New York, N. H. & H. R. R. Co., 165 Mass. 160, 42 N. E. 571; Webster v. Boscawen, 67 N. H. 111, 29 Atl. 670. One hundred years. State v. Van Derveer, 47 N. J. Law, 259; Nosler v. Coos Bay R. Co., 39 Or. 331, 64 Pac. 644. Rehearing denied 40 Or. 305, 64 Pac. 855. The proceedings of a county court though irregular are admissible for the location of a highway in an action for injury where a public highway has been used by the public for ten years or more and as originally located by the county court. City of Madison v. Mayers, 96 Wis. 399, 73 N. W. 43. 194 Township of Madison v. Gallagher, 159 Ill. 105, 42 N. E. 316; State v. Alstead, 18 N. H. 59; Folsom v. Town of Underhill, 36 Vt. 580; Brown v. Town of Swanson, 69 Vt. 53, 37 Atl. 280. But see Hall v. City of St. Paul, 56 Minn. 428, 57 N. W. 928; Raht v. Southern R. Co., (Tenn. Ch. App.) 50 S. W. 72. 195 Gross v. McNutt (Idaho) 38 Pac. 935; State v. Macy, 72 Mo. App. 427. See, also, Scribner v. Blute, 28 Wis. 148. 196 State v. Macy, 67 Mo. App. 326. 197 Prudden v. Lindsley, 29 N. J. Eq. 615. Twenty years. der the doctrine of prescription on the theory that at some antecedent time, its rights were secured through legal proceedings binding all those whose rights were affected by the taking of the real property in question and that a lapse of time has strengthened the validity of the proceedings. In accord with this principle is the fact that all special and modern statutes providing that user for a certain period, generally less than general statutes of limitations, of a tract of land constitutes a highway, make no exception in favor of any class or person. § 743. Property acquired through eminent domain. 198 A public corporation may acquire property by purchase or gift 199 which includes that secured by dedication 200 and prescription,2 ,201 and also through the exercise of the power of eminent domain. This is one of the great and inherent sovereign powers and it has been defined by Judge Cooley,202 and as there is not often occasion to speak of the eminent domain except in reference to those cases in which the government is called upon to appropriate property against the will of the owners, the right itself is generally defined as if it were restricted to such cases, and is said to be that superior right of property pertaining to the sovereignty by which the private property acquired by its citizens under its protection may be taken or its use controlled for the public benefit without regard to the wishes of its owners. More accurately, it is the rightful authority, which exists in every sovereignty, to control and regulate those rights of a public nature which pertain to its citizens in common, and to appropriate and control individual property for the public benefit, as the public safety, necessity, convenience or welfare may demand." The other governmental powers already discussed, namely, the police power,203 the power of taxation,204 are each, in their essential characteristics, entirely different from that now under consideration. The police power is one of regulation; the individual as a member of society is bound to use his property and exercise his rights in such a manner as not to injure others. The state possesses the continuing, inalienable and irrevocable right to compel from the individual |