Tbe assignment of error raises this solitary question: Did tbe trial judge err in refusing to dismiss tbe action upon a compulsory nonsuit after all the evidence on both sides was in ?
Tbe defendants assert tbat tbe evidence is not sufficient to show tbat tbe rise of tbe roadway by tbe plaintiff and ber tenants was adverse or under claim of right, and tbat tbe question must be answered in tbe affirmative on tbat ground, even though tbe evidence may be ample to establish tbat tbe use of tbe roadway by tbe plaintiff and ber tenants was continuous and notorious for twenty years or longer. We are constrained to agree.
Tbe mere use of a way over another’s land cannot ripen into an easement by prescription, no matter bow long it may be continued. Williams v. Foreman, ante, 301, 77 S.E. 2d 499; Hemphill v. Board of Aldermen, 212 N.C. 185, 193 S.E. 153; McPherson v. Williams, 205 N.C. 177, 170 S.E. 662; Colvin v. Power Company, 199 N.C. 353, 154 S.E. 678; Gruber v. Eubank, 197 N.C. 280, 148 S.E. 246; Grant v. Power Company, 196 N.C. 617, 146 S.E. 531; Durham v. Wright, 190 N.C. 568, 130 S.E. 161; Draper v. Conner, 187 N.C. 18, 121 S.E. 29; S. v. Norris, 174 N.C. 808, *54493 S.E. 950; Snowden v. Bell, 166 N.C. 208, 80 S.E. 888; Snowden v. Bell, 159 N.C. 497, 75 S.E. 721; Boyden v. Achenbach, 79 N.C. 540; Ray v. Lipscomb, 48 N.C. 185; Smith v. Bennett, 46 N.C. 372; Ingraham v. Hough, 46 N.C. 39; Mebane v. Patrick, 46 N.C. 23.
Tbis is necessarily so because the law presumes tbat the use of a way over another’s land is permissive or with the owner’s consent unless the contrary appears. McCracken v. Clark, 235 N.C. 186, 69 S.E. 2d 184; Speight v. Anderson, 226 N.C. 492, 39 S.E. 2d 371; Chesson v. Jordan, 224 N.C. 289, 29 S.E. 2d 906; Darr v. Aluminum Co., 215 N.C. 768, 3 S.E. 2d 434; Weaver v. Pitts, 191 N.C. 747, 133 S.E. 3; Perry v. White, 185 N.C. 79, 116 S.E. 84. “There must be some evidence accompanying the user, giving it a hostile character, and repelling the inference that it is permissive and with the owner’s consent in order to create the easement by prescription and impose the burden upon the land.” Darr v. Aluminum Co., supra; Nash v. Shute, 184 N.C. 383, 114 S.E. 470; Boyden v. Achenbach, 86 N.C. 397.
The evidence does not suffice to show that the use of the roadway by the plaintiff and her tenants was accompanied by circumstances giving it an adverse character and rebutting the presumption that it was permissive. The circumstance that the owners of the soil did not object to the use of the way harmonizes with the theory that they permitted the use of the way. There is, moreover, no inconsistency between the circumstance that the plaintiff and her tenants used the way without asking the owners of the soil for permission to do so, and the conclusion that the plaintiff and her tenants used the way with the implied consent of the owners of the soil. When all is said, the assertion that the plaintiff and her tenants used the way without asking the permission of the owners of the soil is tantamount to the assertion that the plaintiff and her tenants used the way in silence. Neither law nor logic can confer upon a silent use a greater probative value than that inherent in a mere use.
For the reasons given, the judgment is
Reversed.