delivered the opinion of the Court:
This was a petition for a mandamus, by Joseph Shurtz, as relator, to compel the commissioners of highways of Worth township to “ ascertain, describe, and enter of record in the town clerk’s office,” a certain road, on the ground that it had been a public highway for twenty years, that duty being imposed on such commissioners in certain eases, by the third section of article 17 of the township organization law of 1861, page 764 of Gross’ Statutes. The defendants answered, denying the existence of the alleged road, and an issue was made up for a jury, who returned a verdict that the road in question had been open and used by the public for twenty years. ¡Notwithstanding the verdict, the court refused to award a peremptory mandamus, but dismissed the proceeding. The relator appealed, and insists that, after the finding of the jury, the court had no discretion as to awarding the writ. The appellees assign cross errors, insisting the court erred in its instructions to the jury.
The cross errors are well assigned.
The court refused to give the jury for the respondents the following instructions, or any equivalent therefor :
*501 “ The voluntary use of a way by the public with the assent of the owner of the soil, is not, of itself, sufficient to make it a public highway, and impose upon the proper public authorities the duty of repair.”
■ “ The court instructs the jury, if they believe, from the evidence, that the township of Worth or the county have never acquiesced in said road being a public highway, then the jury will find that the road in question is not a highway.”
On the other hand the court instructed, it was not necessary to prove the town authorities had recognized said road as a public highway.
In its ruling on these instructions we think the court erred.
In a question of dedication of a right of way, as between the owner and the public, the recognition of a road by the county or town authorities as a public highway, would of course not be necessary. As against the owner, the acceptance of the dedication may be by the general public, which can manifest its acceptance by using the road, and thus acquire a right of way. But in a proceeding of this character, the object of which is to impose upon the town the expense of building bridges and keeping roads in repair, the question whether the county or town has ever recognized such an obligation, in reference to the road in controversy, goes to the very merits of the case. It is true, the language of the act above cited, is general. It requires the commissioners “ to cause such roads, used as highways, as have been laid out, but not sufficiently described, and such as have been used for twenty years, but not recorded, to be ascertained, described, and entered of record in the town clerk’s office.” But this must be construed as referring to roads which have been recognized as highways by the proper authorities, and not to every road which the owner of land may have laid out for his own use, and permitted the public to travel over. Unless we adopt this construction, it would follow, that every owner of land, by opening a road where he might desire one for his own accommodation, and leaving it *502open as a highway for such uses as the public could make of it, might, in twenty years, impose upon the town the expense of keeping it in repair. We have no idea the legislature intended such a result. When they speak, in the foregoing clause, of such roads as are “ used as highways,” they undoubtedly meant, by this phrase, to indicate those roads whose character as highways has been established by the consent of the owners of the soil and of the proper authorities, but of which no accurate survey and record have been made.
It is said, in 2 G-reenleaf’s Evidence, sec. 662, that “ it does not follow, because there is a dedication of a public way by the owner of the soil, and the public use it, that the town or county is therefore bound to repair. To bind the corporate body to this extent, it is said there must be some evidence of acquiescence or adoption by the corporation itself, such as having actually repaired it, or erected lights or guide posts thereon, or having assigned it to the proper surveyor of highways for his supervision, or the like.”
The rule here laid down seems to us eminently just and reasonable. If it be not adopted, towns and counties might have great and unjust burdens imposed upon them against their will. The owner of land can easily estop himself by laying out and dedicating a road, and having more or less persons use it in behalf of the public, but we can not hold that a municipality may thus have a highway thrust upon it for improvement and repair against the wishes of its proper officers and of a great majority of its people. This was the principle laid down in Rex v. St. Benedict, 4 Barn. & Ald. 448, and although a different rule seems to be recognized in Rex v. leake, 5 Barn. & Ald. 469, the doctrine of the former case is, in our judgment, more reasonable in itself, and certainly much the safer and better rule for adoption in a State like ours, as yet comparatively new and undeveloped, in which the making and repairing of roads and the building of bridges are the cause of such large expenditures and severe taxation.
*503As we have already stated, the court, notwithstanding the verdict, refused the peremptory writ, and on examining the entire record we are not inclined to reverse its judgment. Counsel for appellants insist that the statute entitled “ Mandamus ” requires the court to award a peremptory writ incases where a jury has found a verdict for the petitioner. But this can refer only to cases where the petitioner makes a prima facie case, and the issue found by the verdict is material. In this case, the petition was not good, and the issue was immaterial. The action of the court in denying the peremptory writ was like arresting the judgment in an ordinary action at law. The petition merely avers that “ the above described road has been used for twenty years,” but not that it has been used as a public road or highway. The verdict merely finds “ that the road in question has been opened and used by the public for twenty years before the commencement of this proceeding.” For aught that the verdict finds, the road may have been a mere private road, but still open to the public, and used by them whenever any persons had occasion to travel it. On examining the evidence we find it was in fact a private road, so far as the town authorities are concerned. It has never been worked by them, or recognized by them in any manner as a public highway. It is simply a neighborhood lane, about twenty feet wide, for the accommodation of a few persons, but upon which any could travel who might desire. The petition being insufficient, the verdict immaterial, and the evidence showing there was no public highway which the town was under obligations to keep in order, the court rightly refused the peremptory mandamus.
Judgment affirmed.