Worth v. Dawson, 1 Sneed, 62, where the road had been used by the neighbors as a church and mill road for nearly 30 years, the court say:

"No use or acceptance of the way by the public is shown, nor any recognition of it by the proper authority, the county court. That a right of way may be claimed by dedication to the public use by the owner of the soil is not denied; but with us this doctrine must be cautiously admitted. Its too easy application would defeat the right of the owner of the soil to have compensation for damages sustained by laying out a road over his land, to which he is entitled when such road is laid out by the proper authority."

In Jackson v. State, 6 Cold. 535, the principle is cited with approval from Angell on Highways that mere user, however, uninterrupted by the public, and long continued, is not sufficient to give the right in the public; but that such user must be accompanied by acts showing the user to have been under a claim of right, and not merely by permission of the land-owner; such as working the road, keeping it up by the public, repairing it, or removing obstructions, etc. "A permissive use of a way by certain portions of the community constitutes a license and not a dedication, and is ordinarily something that may be revoked." Washb. Easem. 190,191. "Everything, in such cases," said BARROWS, J., "depends upon the intention of the party whose dedication is claimed, and upon the character of the permission given and the use allowed." White v. Bradley, 66 Me. 259; citing Stafford v. Coyney, 7 Barn. & C. 257, and Barraclough v. Johnson, 8 Adol. & In Hall v. McLeod, 2 Metc. (Ky.) 101, SIMPSON, C. J., said: "It cannot be admitted that where the proprietor of land has a pass-way through it for his own use, that the mere permissive use of it by other persons for half a century would confer upon them any right to its enjoyment. So long as its use is merely permissive, it confers no right; but the proprietor can prohibit its use or discontinue it altogether at his pleasure. A different doctrine would have a tendency to destroy all neighborhood accommodation in the way of travel; for if it were once understood that a man, by allowing his neighbors to pass through his farm without objection over the pass-way, which he used himself, would thereby, after the lapse of twenty or thirty years, confer a right on him to require the pass-way to be kept open for his benefit and enjoyment, a prohibition against all such travel would immediately ensue."

See, also, Kilburn v. Adams, 7 Metc. 33; State v. Nudd, 23 N. H. 335; Barker v. Clark, 4 N. H. 383; Morse v. Ranno, 32 Vt. 600; Jones v. Davis, 35 Wis. 382; State v. Harden, 11 S. C. 366; Burnham v. McQuesten, 48 N. H. 451; Sharp v. Mynatt, 1 Lea, 376; People v. Livingston, 27 Hun, 107; Wright v. Tukey, 3 Cush. 290.

Without intending in the slightest degree to express any opinion upon the merits, the real controversy in this case turns upon the question whether or not there is a public road where the alleged acts of trespass were committed. Upon this point, although there is not much controversy about the facts in evidence, the inferences sought to be drawn from them by the parties are wholly irreconcilable and antagonistic. Upon the one hand, it is contended that the evidence es

tablishes that the plaintiff intended to dedicate it to the public as a highway. On the other hand, it is contended that the plaintiff, and those who preceded him in the fee, did not intend it as a dedication to the public, but as a private way for his own convenience, and that the use of it by the public was only permissive, and constituted a license, which was revocable at his pleasure. Here, then, are questions of fact to be investigated, for which a jury, under the guidance of a court of law, are peculiarly fitted to determine, and which the authorities cited show that the remedy at law is not only appropriate, but competent, to render a judgment which shall establish the right or estate, and do complete justice to the matter in controversy. In Hacker v. Barton, 84 Ill. 314, the court holds, following Wing v. Sherrer, 77 Ill. 200, that, "as a general rule, it is better in all cases of a doubtful character, presenting a conflict of evidence, that parties should be remitted to whatever remedy they may have at law, although equity might entertain jurisdiction;" and that this was especially so when there was a conflict of evidence in regard to the alleged fact of dedication of land to public uses. But here the case is without any equitable facts or circumstances upon which such jurisdiction can be based or assumed. The remedy is at law, and must be pursued there. The decree is reversed, and the bill dismissed.

(12 Or. 228)

GEE v. CULver.

Filed April 28, 1885.

1. MALICIOUS PROSECUTION-DEFENSE-ADVICE OF A MAGISTRATE.

It is no defense to an action for malicious prosecution that the defendant laid the facts within his knowledge before a justice of the peace, and acted on his advice in making the arrest.

2. SAME-EVIDENCE-PRESUMPTION OF MALICE

An instruction to the jury that "if the defendant acted rashly, wantonly, or wickedly, the presumption of malice is conclusive," is objectionable.

3. SAME-PROPER EXTENT OF INSTRUCTION OF COURT AS TO MALICE.

In charging a jury in an action for malicious prosecution the court cannot go further than to give a definition of malice. It is never an inference of law.

4. SAME-PROOF-MALICE-WANT OF PROBABLE CAUSE.

To recover, in an action for malicious prosecution, malice must be proved, as well as want of probable cause.

Appeal from Multnomah county.

A. H. Taimer, for appellant.

O. P. Mason, for respondent.

WALDO, C. J. This case comes up on the ruling sustaining the demurrer to the defendant's separate defense and misdirection of the jury at the trial. The demurrer was rightly sustained. It was no defense to the action that the defendant laid the facts within his knowledge before a justice of the peace, and acted on his advice in making the arrests. Olmstead v. Partridge, 16 Gray, 381; Probst v. Ruff, 100 Pa. St. 91; S. C. 45 Amer. Rep. 358. The instructions. objected to were drawn by the plaintiff's counsel. That part of the

first instruction, "if the defendant acted rashly, wantonly, or wickedly, the presumption of malice is conclusive," is objectionable. The statement is, indeed, supported by a dictum in Travis v. Smith, 1 Pa. St. 234. But in malicious prosecution the court cannot go further than to give a definition of malice; it is never an inference of law. In that action malice must be alleged and proved as an independent fact. DENMAN, C. J., in Mitchell v. Jenkins, 5 Barn. & Adol. 593. The jury are the exclusive judges of the malice of the defendant. WASHINGTON, J., in Munns v. Dupont, 3 Wash. C. C. 37; Stewart v. Sonneborn, 98 U. S. 193. “Whether malice existed or not is a matter of fact for the jury to decide, taking into consideration all the circumstances of the case. The question of probable cause is a mixed proposition of law and fact. Whether the circumstances alleged to show it probable or not probable are true and existed, is a matter of fact; but whether, supposing them true, they amount to a probable cause, is a question of law to be decided by the court." DUVALL, J., in Murray v. McLane, 5 Hall, Law J. 515. TAUNTON, J., in Mitchell v. Jenkins, above, refers to the distinction touching malice between ordinary actions of tort and actions of malicious prosecution; and see Holmes, Com. Law, 142.

The jury, then, must find that the defendant was in fact actuated by a wrong motive. The instruction, on the contrary, makes malice a conclusion of law; placing it in this respect on the same footing with probable cause. The judge must say to the jury, "I tell you, if you think so and so, there is a want of reasonable and probable cause." COLERIDGE, J., in Haddrick v. Heslop, 12 Q. B. 275. That is, the jury must pass on the credibility of the testimony, not on its effect. But when the judge comes to malice, he must tell the jury malice is so and so, and leave it to them to draw their conclusions from the evidence. The jury are told substantially, by the third instruction, to find the defendant guilty should they find there was a want of probable cause, omitting the element of malice. In this there was a double error, as indicated above. "It is an action not to be favored, and ought not to be maintained without rank and express malice and iniquity." HOLT, C. J., in Savill v. Roberts, 12 Mod. 211.

LORD, J., concurred.

THAYER, J., concurring specially. This appeal is from a judgment of the circuit court for the county of Multnomah, rendered in favor of the respondent and against the appellant in an action for malicious prosecution. The respondent alleged in his complaint in said action, in substance, that the appellant, on the twenty-ninth day of December, 1883, wrongfully and maliciously went before a justice of the peace of said county, and, without probable cause, charged him with the crime of embezzlement, and of converting $113, and procured a warrant for his arrest upon said charge, and wrongfully, un

lawfully, and maliciously, and, without any probable cause, went to the residence of the respondent and arrested him, and compelled him to go with him to East Portland, and there and then confined him in the city jail for four hours, when respondent was taken before the said justice of the peace for examination upon said charge, and was thereupon discharged, and the action was dismissed and ended. The appellant filed an answer to the complaint, in which he denied the alleged wrongful, unlawful, and malicious going before the said jus tice of the peace, and of so making the said charge, or that he otherwise charged respondent with said crime, except as thereinafter alleged, or that he so procured a warrant for the arrest of the respondent upon such charge, or so arrested or imprisoned him, or otherwise arrested or imprisoned him, for any time. And for a further and separate answer and defense alleged that he was a constable of said county of Multnomah, duly appointed and qualified to act as such; that on said twenty-ninth day of December, 1883, having information and being in possession of facts which he believed constituted the commission of a crime by the respondent, he made a true statement of all said facts, and all the facts in relation thereto within his knowledge and possession, to the said justice of the peace, and that said justice, being satisfied that a crime had been committed, and that there was probable cause to believe the respondent guilty thereof, caused an information to be made and subscribed by the appellant, charging the respondent with said crime; that thereupon said justice duly issued to appellant a warrant for the arrest of the respondent, and to bring him before said justice at his office; and that under and by virtue of said warrant, and in the discharge of his official duty as such constable, he arrested the respondent and took him before said justice in obedience to said writ, and not otherwise.

The respondent filed a demurrer to that part of the appellant's answer which is termed a further and separate answer, upon the grounds that it did not constitute a defense or mitigation. The court sustained the demurrer, and the remaining issues were tried before a jury, who returned a verdict in favor of the respondent for the sum of $100, upon which the judgment appealed from was entered.

Evidence was given upon the trial, as appears from the bill of exceptions, that the appellant made the complaint before the justice of the peace charging the respondent with having embezzled $113 of money belonging to J. M. Scott, and applied to the justice for a warrant for his arrest, which the justice issued to the appellant as such constable. At the time the warrant was issued, the appellant stated that he wanted an order indorsed on the warrant authorizing him to make the arrest on Sunday, stating that the respondent might escape. The respondent, against the objection of the appellant, also gave in evidence the part of the transcript of the proceedings had before the said justice of the peace, showing the amount of fees earned by appellant as constable in such case, which was $3.30. The re

spondent gave evidence tending to show that he and two brothers of his resided on a farm owned by them in said county, worth $5,000; that on Friday, the day before he was arrested by the appellant, he came to East Portland with some stock he had sold. After delivering the cattle he went around town for a while and then went home. Upon the next day he came back to town, did some marketing, and went home again; that he received the money for the cattle ($113) on the Friday he delivered them; that J. M. Scott had given him permission to sell the cattle; that Scott had a chattel mortgage on them; that he started home on Friday about 2 or 3 o'clock at night, got home about 4 o'clock in the morning, and Sunday morning, about 2 or 3 o'clock, the appellant and Mr. Linville, the marshal of East Portland, came and arrested him upon said charge and took him back to town. Upon cross-examination of the respondent, as a witness, he admitted that he had been convicted of larceny as bailee in a justice's court, which he attempted to explain as having been wrong. It also appeared that Mr. Scott had a mortgage upon the cattle sold by the respondent, but that he had given him permission to sell them, and either to pay him the money or replace other cattle, and that Scott did not direct the arrest, or know anything about it, until after the respondent was arrested. It appeared, also, that Mr. Scott and appellant resided in the same precinct in East Portland.

Testimony was also given tending to show that the respondent's reputation for honesty and integrity was bad; that after he received said money for the cattle it was reported that he had been robbed, also that he had gambled the money off, and there would seem to have been a general suspicion that he had made way with the money; that reports from several citizens were made to the appellant of the fact that the respondent had received the money; that it belonged to Mr. Scott, and that he had probably gambled it off. This, in connection. with the bad reputation of the respondent, led to the prosecution.

From the evidence shown by the bill of exceptions I cannot see anything to justify the conclusion that the conduct of the appellant in the matter indicated malice. He was a peace officer, and these facts and rumors coming to him that the respondent had received this money, that it belonged to Mr. Scott, that the respondent was around gambling, and the questionable reputation he evidently bore in the community, were well calculated to excite suspicion. The appellant was doubtless hasty and imprudent in not having conferred with Scott upon the subject before instituting the proceedings; but that circumstance is a long way from establishing malice. There may have been no probable cause, in fact, for the arrest of the respondent, but it does not necessarily follow that the proceeding was instituted through malice. The plain, straightforward, and candid statement of the appellant in his testimony, as set out in the bill of exceptions, refutes the charge that he was actuated by any such motive, and if the case had been fairly submitted to the jury they would not have been likely