#### TAYLOR *v.*BAILEY.

Lease — defective good after enjoyment or as a contract — private and public ways.

A writing without seal, though invalid as a lease if nothing has been done, may be held good as between the parties, if the lessee has entered and enjoyed, or as a mere contract.

A mere lease confers no right of private way, because it describes the land a9 lying near where the road runs.

A county road is a public not a private way; no *private ways*are laid out by public officers except township roads.

Where a road has been laid out from point to point and opened and used for a long time upon, ground different from that on which the line of the road was actually run, the traveled road is the public highway.

A way may be established by prescription in Ohio.

Error to the Common Pleas. Taylor and Bailey agreed in writing that Bailey should have the use of thirty acres of land in the northeast corner of his farm, lying between where the road run and the creek, for five years. Under this agreement Bailey entered, and enjoyed. After some time Bailey sued Taylor in case and complained that by virtue of the *lease*he had a right *oí private way*from Taylor’s mills to'the road near one Morgan’s, which had been used as a private way for more than twenty-five years, and the defendant stopped it up to his injury. On trial of the issue not guilty —the writing being proven, was objected to, because it had no *seal,*but the court admitted it, and charged the jury, it was. a valid lease. The records of the county commissioners were then produced and showed the establishment of a public county road between the same points in 1812, which was opened and traveled, though not on the exact line surveyed for the county road, *though it had always been used as a public road.*The court was asked to charge the jury that the traveled road, though not on the exact line of the surveyed road, was a public road. This the court refused, but instructed them that the traveled road, for the purposes of the action was a private way. The plaintiff had judgment, and for error in law in these opinions, it is now sought to reverse the judgment.

*647Hamilton, for the plaintiff,

cited 2 O. *11.*215.

Bell, contra.

Wright, J.

The writing, though without seal and invalid as a lease, would, as to the parties, be construed good, if the lessee had entered and enjoyed, or be held good as a mere contract. But whether good *as a lease*or not, it confers no right of *private way;*nor does the record disclose any evidence from which a way of necessity could be maintained as is argued. The road laid out by the county authority was *apublic road,*though erroneously pronounced a *private*one by the court. There can be no *private way*laid out under our laws except by the township trustees. It is argued that there can be no way by prescription in this county, because of our recent settlement: we think otherwise, but the proof in this case •was, that *this road was always used as such.*The road opened and used, we think a public road, though not on the exact line of the survey, and the -eourt erred in charging otherwise. The judgment js reversed, and the cause remanded for further proceedings.