
    John M. Ferre vs. David Doty.
    Addison,
    
      January, 1829.
    The proprietors of a town, having set apart a piece of land as a commoh for public uses, made a division of lands consisting of one-acre lots, lying about the common, which were distributed among the proprietoi s, one to each right. It was held that án after purchaser of one of there lots liad no right to the fee of the common, and could not maintain trespass against one who had erected a building thereon, in front of, and near to, the said lot.
    This was an action of trespass. It was tried in the county court on the general issue, and was brought into this court by a bill of exceptions agreed to by the parties; from which it appeared, that on trial of the issue, the plaintiff proved the following facts viz : That the proprietors of the town of Bridport did, previous to making their fourth division, set apart by vote a certain tract of land as a common for certain public purposes as expressed by their vote, and then made a fourth division of lands consisting of one-acre lots, lying about the said common, as marked on the plan ; which lots were severed to the proprietors, one to each right ; That the plaintiff was the owner and occupier of lot no. 54 in the 4th division, fronting on said common ; and that the defendant, previously to the plaintiff’s purchase, had, in connexion with others, erected on said common, and immediately in front of the plaintiff’s said lot, a range of horse-sheds which were divided into different apartments, each of which apartments became the private property, and was appropriated to the. private use of one of the buildings, and that the defendant owned one in front of the plaintiff’s said lot, which he continued to use to the suing out of the writ. It appeared that said sheds were not more than six feet from the plaintiffs line. It also appeared that the description in the plaintiff’s declaration embraced not only said lot no. 54, but also extended so far west as to embrace the land in front of the same on which said shed stood. Upon this evidence the defendant insisted that the action could not be sustained. The court so decided, and directed a verdict for the defendant.
    The plaintiff excepted to the decision of the court, and removed the cause to the Supreme Court on a. motion for anew trial.
    
      Phelps, for the plaintiff. — The doctrine that the owner of land adjoining the highway, is the owner in fee of the highway, subject to the easement in the public, and may maintain trespass or ejectment with respect to it, is too well settled to require discussion. See Lade vs. Shepard, 2 Stra. 1014. — Mayor of Norwich vs. Wood, do, 1238.— Chester vs. Alpren, 1 Burr. 133.— Stevens vs. Whistler, 11 East, 51. — Harrison vs. Parker, 6 do. 154.— Commonwealth vs. Peters, 2 Mass. 127. — Pearle.y vs. Chandler, 6 do. 454.-— Cartilyon vs. Wan Brunt, 2 Johns. Rep. 357. — Peck vs. Smith, 1 Conn. Rep. 103.
    The circumstance that this was intended as a public common,and was appropriated as such by vote of the proprietors, is immaterial: for to all the purposes of this suit it may be treated as a highway. The right of the public might perhaps be more extensive in this case than the case of an ordinary highway. They might, under the vote of the proprietors, have the right to place their public buildings on the common, but, after all, their right in it amounts only to an easement, the fee of the land being elsewhere. The case is analogous to cases which arise in England respecting rights of common | and the uniform decision there has been that the party is liable to the owner of the soil in trespass, unless he can justify under the easement. See Cooper vs. Marshall, 1 Burr. 259.— Willson vs. McReath, 3 do. 1825. So here, certain rights were vested in the public by vote of the proprietors, and so long as the defendant exercised those rights merely, as one of the community, he might justify ; but the erection of a building for his private use, not being justifiable under the easement, renders him liable. Warren vs. Ple.nslia.io, 2 Aikens, 141. It may be objected, that the fee of the land is not in this instance in the plaintiff, but in the proprietors of the township. It was so undoubtedly when the common was laid out; but when they divided their lands, and allotted to individuals the village lots lying on the common in severalty, the fee passed to them. Smith vs. Peck, 1 Con. Rep. 
      103. To apply a different rule here would lead to all the mischief and injustice pointed out in that case. Indeed, the proprietors could not, after the division^ resume the land, nor apply it to any other purpose than that specified in the vote. But if the fee is considered in them, they might by a further division allot it in s&veralty to some other person, and thus by placing some other person between the plaintiff and the highway, destroy the value of bis lot. In short,this common is to the plaintiff a highway — it is the approach to his land — -it is in fact a highway for the public, and although the public may have some additional privileges in it, yet every reason exists in this case on which the settled rule as to highways is founded, and every reason for the application of it to this case which existed in any case where it has been applied. It may be objected further that t7-espass cannot be maintained in this case as the sheds were built before the plaintiff’s purchase. But the case in this respect is precisely the same with Peck vs. Smitht before cited.
    
      Mr. Bates, contra. — The plaintiff’puts his right to recover on the analogy of his case to that of an owner of land adjoining a highway. But in this case, it must be remembered, the fee of the land on which the trespass is alleged to have been committed is in the proprietors of the town of Bridport, of whom the plaintiff is not one. The right of common, or the easement, belongs to the Town of Bridport. The grounds on which the owner of land adjoining a highway has been allowed to maintain the action of trespass are, that he has the fee of the land, and the publick only an easement; and that he has also the possession, so far as is consistent with this easement. ^Neither of which is true in this case.
    The plaintiff purchased his own lot after the building was erected : jt is the continuance of it, of which he complains, and it cannot be pretended, that he has ever had possession of the land, on which th.e alleged injury was done — and it may be asked how he has acquired a title to it? Admitting his grantor to have had this title, the deed does not convey it to him. In Jackson vs.-Hathaway 15. Johnson, 447, it was expressly decided, that a conveyance of land lying on each side of a publick highway did not divest the grantor of his title to the lands covered by the highway, and that one parcel of land cannot pass as an incident to another parcel conveyed. And in Peck vs. Smith, 1, Conn. Rep. 103, Edmond and the other Judges in favour of the plaintiff, in order to avoid this objection, took the ground that the particular words in the deed on which that case depended, creating a reservation, must be construed to refer to the publick easement, and not the soil itself. But admitting the conveyance of land adjoining a highway carries the highway to its centre along with it, as an incident, the thing in that case is easily known and defined. But, what share of the common follows each particular deed of the various lots surrounding this common ? In this particular case, what part of this square common passed as an incident to this deed ? There is no resemblance between such a common belonging to a town and a highway. But it may be again remarked that the grantor had no title, and could convey none. Suppose the town should vote to discontinue or abandon the common, to whom would the land revert ? Assuredly to the proprietors of Bridport; and the plaintifi can no more maintain trespass than he could for an act done on a highway of which another had the right in fee and the publick an easement. He has neither possession nor title. If he has sustained an injury, he must bring an action on the case to recover damages apportioned to that injury. But he has no right to recover. The erection and use of the shed is in conformity to the intention of the ancient owners of all the land who had a right to appropriate it to such use as they deemed proper. The use is, in short, in accordance with the vote setting the land off to common.
    There is one more view of the case. — If the plaintiff can sustain the action, it is upon the ground that the fee of the land was included in his deed — ‘that it is his land of which the defendant is in possession. In this case it comes within the Statute of 28th October, 1807, page 171. For when the plaintifi took a deed, the defendant was in posseession claiming the right adversely to his grantor — a bright to possess in that way and manner forever.
   Turner, J.

pronounced the opinion of the Court. — This is an action of trespass brought for continuing and occupying a shed on the common, in front of the plaintiff’s land. The main question raised by the counsel is, whether the plaintiff has a right in the premises, sufficient to support the action. It is admitted that the common was laid out, and set apart, for certain public purpose s, by a vote of the proprietors, previous to making the 4th division, which consists of one-acre lots, laid out around the common : one of which the plaintiff owns, and claims, as appurtenant thereto, a share of the fee of the common, embracing the land on which the trespass is alleged to have been committed. The plaintiff compares the common to a highway, and insists that the fee of the land is in the adjoining proprietors. This we admit to bo true with certain exceptions $ to understand which, it will be necessary to enter into an investigation of the law concerning highways.

The term highway means nothing more than an easement, or .a right of way over the land of another, and cannot mean a right of passage over one’s own land. Whenever a highway is laid out over the land of another, the owner does not thereby lose the fee of the land, but retains it subject to the easement of the public. When a new highway becomes necessary, an easement or right of way is all the public have a right,in justice,to demand;and so much the oiwn-of the soil is bound to yield upon a fair equivalent. When the original proprietors of townships have laid out highways, they ¡have undoubtedly supposed that it implied only a right of passage common to all. And it is clear, that by the rule of the common law, the freehold of the soil was in the lord of the manor, or in th.e owner of the land on each side. As the fee of the land is not changed by laying out or granting a highway, it must necessarily fol-r low that it remains in the original proprietors, and will pass with their conveyances to subsequent purchasers, although covered by a highway. And the true rule to find where the fee of the land is, is to find the exact boundaries in the deed, as no one has the right of soil in more than is included within his boundaries. The common law presumes, that he who owns land adjoining owns the fee of the highway, on the ground, that it supposes it included within his boundaries,and¡that he who owns on one side owns to .the centre for the same reason. The exceptions to these presumptions are clearly and ably illustrated by Judge Edmond, in the case of Peck vs. Smith, 1 Con. R. 127, where he says, for example, “ A owns a piece of land ; a highway is laid across the mid-u die ofit: the fee remains in A. Again, A and B own lands adjoining ; a highway is laid wholly on A’s land, but bounding on “ the land of B. Here it is clear that the fee of the way re- “ mains in A, as much as in the first case; for laying a highway on the land of A, cannot transfer any part of the fee to B, although by the laying out of the road, B has become an <{ adjoining proprietor. Again, A owns land ; B owns land adjoining on each side of it; the whole of the land of A is laid u out for a road. Will it be said in such a case that the fee is “ transferred from A to B ?” And he goes on to remark, that “ proof of fuch a set of facts in respect to the laying out of the “ road, and the circumstances of ownership continuing the same as “ at the time of the laying out, rebuts and oversets entirely the “ presumption that the road was originally laid out on B’s land, “ or the land of those under whom he claims. The same proof i( equally excludes the supposition that when B purchased his land, “ the fee in the way accompanied and made part of his purchase, u because the fee was then in A exclusively ; no right of way ex- “ isted. The common law rule that the fee of the highway is in “ the owner of the adjoining land could not then apply.”

jPhelps, for plaintiff.

Bates, for defendant.

From a careful examination of the authorities cited by the counsel, and from all the more modern decisions which we have been able to find, we are satisfied that these principles must con-troul the present case ; and that the plaintiff has neither the fee nor the possession of the land, on which the trespass is alleged to have been committed, not being covered by or within the boundaries of his deed. It is clear the action cannot be sustained.

Judgement affirmed.  