OPINION by

If there was an express grant of the right of way in question when the land was sold by James, Rowan to Mrs. Vandivort, it is a matter of little or no consequence whether there was a way of necessity or-not. There was evidence, of the most express, direct, and positive character, that there was such a grant. Freeman Vandivort, the plaintiff’s husband, conducted the negotiations for the purchase of the 18-acre tract, on behalf of his wife. He testified that he negotiated for the purchase and that there was a sawmill on the tract and that was what he bought it for.

He added: “He (James Rowan) promised to give me the road; said I should have the right of way. I couldn’t get to the sawmill without a road and I should have a right of way. Q. Now, where was this right of way ? A. It was alongside of his farm. He promised me a road all the way down but about four rods that he couldn’t give me, that Mrs. Dunbar owned; but he said it' could be easily got, and I did get it”

The road was fully identified by the witness, who said it had been in use to get to the mill before he bought it, and also that he continued to use it constantly, and to work it and keep it in repair from 1862 when the land was purchased until it was obstructed by the defendant. There was not a particle of contradiction of this testimony in the case. On the contrary, it was; confirmed by other evidence. Kennedy Marshall was called, upon by Mr. Rowan to survey a small lot of 3 acres which he was. about to sell for a church, in 1871, off of his remaining landi bordering on this road; and when the surveyor wanted to fix the corner of the church lot Mr. Rowan told him “to move back *463from that corner — where I had fixed the comer was between Mr. Rowan and Mr. Allen — to move back and start far enough south, to leave a road. So I did move back; I don’t recollect the distance, 12 or 15 feet, or something like that; and I started there' and ran around the church lot until we came around to the-northeast corner and then ran along parallel with the line between the two, by Mr. Rowan’s location, to leave a road there- . . . Mr. Rowan was at the time the owner of this land and. what I was going to say was, there was some person there, I think it was Mr. Vandivort. I wasn’t acquainted with him at' the time, and they spoke about the road to the mill. I didn’t, know what mill it was; he must have a road to the mill. They were in conversation about leaving this road.”

Q. Mr. Rowan said that was the road to the mill ?

A. Yes, sir; I didn’t know what mill it was. I didn’t know there was a mill in there.

Q. And that had to be reserved in this conveyance to the church ?

A. Yes, sir.

The deposition of James Rowan, the grantor of the land to-Mrs. Vandivort, was taken, and he testified to the sale and to-the existence of the road there, and its use by all persons who-desired to travel over it, for forty or fifty years. He said he-did not recollect about anything being said about that right of way at the time of the sale to Mrs. Vandivort, but there might, have been something said about it. But he also testified: “After I sold to Mrs. Vandivort I moved the fence back along by northern boundary in order to give Mrs. Vandivort a road out. After I came back from the West, in 1866, I moved my fences-back in order to give one half the road from this property out to the road; I threw out enough of the ground for a team to pass-along; I would, say from 8 to 12 feet I threw out. Mrs. Vandivort worked on this road and built a bridge on it and kept it in. very good order.”

The learned court below left to the jury the question whether-there had been an express grant of the road, and the jury found for the plaintiff. There was ample testimony to sustain the verdict on the theory of an express grant; and it seems to us the-question of a way by necessity was entirely superfluous, and that: its discussion now is unnecessary.

Judgment affirmed.