#### Reuben Emerson *versus*Benjamin C. Wiley.

lu trespass *qu* cl. fr.*the defendant pleaded that the *locus in quo*was a public high< way, and produced a vote of the town that all the common lands (including the locus) should remain unfenced for highways, a training field, burying place, &c. *Held,*that without proof that the *locus*was included in the part appropriated to highways, the plea was not supported.

Evidence of a usage for all persons to pass over a common, will not support a plea that the land is a public highway.

Trespass *quare clausum, fregit.*The defendant pleaded three pleas in justification, the first of which was that the *locus in quo*is part of a public highway. The alleged trespass consisted in the defendant’s passing from his own close across the close claimed by the plaintiff.

In support of the first plea, the defendant read at the trial a vote of the town of Reading in 1741, that all the common lands (including the *locus in quo) “*shall continue to be unfenced as they are, for the use of the old parish for highways, a training field, a burying place, and the more convenient coming at the pond with flax and creatures, and also to accommodate the neighbours that live bordering on the pond, for their more convenient coming at and improving their own lands and buildings, all of the aforesaid lands to remain unfenced as they now are, and to the use of the old parish and neighbourhood aforesaid forever, never to be disposed of for any other use whatsoever, without the consent of every freeholder in said parish.” The plaintiff’s counsel objected to the reading of this vote as irrelevant, and not tending to support the plea, but it was admitted. It appeared in evidence, that the plaintiff’s close had always been open and unfenced in front of the defendant’s close, till the spring of 1805. The parish schoolhouse had occupied a part of the westerly side of the lot. In 1805 the lot was enclosed, pursuant to a vote of the parish ; and it had been peaceably occupied by the plaintiff for more than nineteen, but less than twenty years, at the time when the alleged trespass was committed. The defendant’s witnesses testified that they had often known Mr. Prentiss (the former owner of the defendant’s close) or those employed by him, for more than thirty years, cross the land now the plaintiff’s close, *73then being unfenced, with cattle and horses, and several times with a cart, into his close, for the purpose of cultivating it. They also stated, that persons on foot coming to church, and children in going to school, and others who had occasion, crossed the plaintiff’s lot, then common land, whenever and wherever they thought proper ; that it was common land all round the school-house.

*March term*1828, *in Suffolk*

*April term*1828, *in Middlesex.*

The plaintiff’s witnesses testified, that no cart-path, in any direction over the plaintiff’s close, was visible, and that ther« was no appearance there of travelling with teams, horses, or on foot. It was proved that the travelled paths of the great road from Boston through South Reading to Andover, and other roads adjacent or near to the plaintiff’s and defendant’s closes respectively, were exactly the same as they had been for forty or fifty years, and were of sufficient and convenient width.

The defendant contended, that the plea of a public highway over the *locus in quo*was supported by the vote of 1741, and the other evidence in the case. The plaintiff contended that that vote was irrelevant, and that the evidence in the case did not support the plea.

A verdict was taken by consent for the defendant, on the issue joined on the first plea, with leave for the plaintiff to move for a new trial.

*T. Fuller,*for the plaintiff,

cited 3 Dane’s Abr. 252, § 16, 17 ; *Commonwealth*v. Newbury, 2 Pick. 57.

*Hoar,*for the defendant.

The opinion of the Court was drawn up by

Wilde J.

A verdict was taken in this case at the trial by consent of parties, for the purpose, as we understand it, of presenting for the consideration of the Court all the questions of law arising out of the pleadings and the evidence. But as the case now stands, only one question of law is involved in the motion for a new trial, and that only has been argued, namely, whether the verdict as to the plea, that the *locus in quo*is a public highway, is supported by the evidence.

As by the vote of 1741 a part only of the common lands was appropriated for highways, it is incumbent on the defendant to show that the *locus in quo*was included within the part thus appropriated. Of this there is no evidence, but the contrary *74must be inferred from the language of the report. Before the plaintiff’s lot (which includes the *locus)*was inclosed, it is uniformly referred to as common land ; indeed the defendant’s witnesses expressly state that it was common land. “ It was common land,” they say, “ all round the school-house.” So that it is clear that the *locus*was not included within that part of the common land which was laid out or set apart for high ways. Nor does it appear that it has ever been used as such. The passing over a training field or open common, is no uncommon usage, and however long it may continue, it will not convert a field or common into a public highway. In the present case the usage proved was in strict conformity with the uses for which the lands in common were originally appropriated. They were to remain unfenced, not only for the use of the old parish, but also for the accommodation of the neighbours bordering on the pond. So that the use made of these lands by the former occupants of the defendant’s lot and by other borderers on the pond, has no tendency to establish a public highway by prescription,1 since the use is not inconsistent with the privileges allowed by the vote. Besides, if the usage could be considered as establishing a right of way through the plaintiff’s lot, it could not be called a public highway, but it would be held to be a private and restricted right of way, which would be more in conformity both with the usage and the original appropriation of the lands. Whether the defendant has any such right of way, either by prescription, or under the vote of the town, or otherwise, and whether the parish had a right to inclose the plaintiff’s lot under the vote of 1805 or not, are questions not- now to be considered. At present we only decide that the first special plea cannot be sustained by the evidence reported. The verdict therefore must be set aside and a new trial granted.

1

 See *Sprague*v. Waite, 17 Pick. 309; *Watrous*v. *Southworth,*5 Connect R. 305; *Odiorne v. Wade,*5 Pick. (2nd ed.) 421, note 1.