Huggins v. McGregor , 1 Del. 447 ( 1834 )

This was an action of trespass for breaking and entering plff.'s close, treading down the grass, c. The pleas were not guilty; justification under a right of way, and liberum tenementum.

The defendant claimed a right of way; First, From necessity; and secondly, From uninterrupted use and enjoyment.

The court.

We know of but one case where a right of way can arise from necessity, and that is when one sells land to another which is surrounded by other lands of the vendor. Here from the necessity of the case the grant carries with it a right of way over some part of the vendors land. A right of way by prescription may arise from long use. Wherever a person has been in the uninterrupted use and occupation of a right of way over another's grounds for twenty years, the jury may presume a grant. It is a question of fact for the jury

Verdict for the appellant.