
    Reuben Emerson versus Benjamin B. Wiley.
    In trespass quare clausum fregit, the defendant may plead that he is the owner of an adjoining close, and has, as appurtenant, a right to pass in all directions over the plaintiff’s close.
    Land was given “ for the use of a parish for highways, 8cc. and also to accommodate the neighbours that live bordering on said land for their more convenient coming at and improving their own lands and buildings ; to remain unfenced forever j never to be disposed of to any other use, without the consent of every freeholder in the parish ; ” and the parish granted land “ bounded all round by the land given to the parish for particular uses,” as above mentioned. It was held, that this was not mere description, but an implied covenant that the common land should remain open, unless it should be enclosed with the consent of every freeholder in the parish.
    In trespass against such grantee for passing over the common land, the burden of proof is on the plaintiff to show that it was enclosed with the assent of every freeholder in the parish.
    A right of way is not lost by a non-user for any period less than twenty years.
    Trespass quare clausum fregit. The defendant pleaded, 2dly, a private way by prescription ; — and 4thly, that he was seised of an adjoining close, and as appurtenant to it he had a right at all seasons, and in all directions, to pass over the plaintiff’s close.
    The plaintiff, in his replication, denied the right of way as set forth in the pleas ; and as to the second plea he now assigned extra viarii, fyc. The defendant joined the issues tendered.
    At the trial, before Morton J., the defendant gave in evidence, in support of the second and fourth pleas, 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 said lands for their more convenient coming at and improving their own lands and buildings; all the aforesaid lands to remain unfenced as they now are, and to tn« use of the old parish and neighbourhood aforesaid, for ever, never to be disposed of for any other use whatsoever, without the consent of every freeholder in the parish.”
    The defendant also gave in evidence a deed from the parish to their minister, the Rev. Caleb Prentiss, dated May 9th, 1777, conveying the defendant’s close, “bounded all round by the land given by the town to the first parish in Reading for particular uses as may appear by the records of said town, as the fence now stands — with all the privileges thereunto belonging ; ” and he proved that Prentiss occupied this close from 1770 until his death in February 1804. Prentiss devised his land to his wife during her life. The plaintiff was settled as minister of the parish in October 1804, and he occupied the defendant’s close most of the time under lease from Mrs. Prentiss, until her death in 1823. After her death, the heirs of Prentiss came into possession of the close and sold it to the defendant in 1824, with the appurtenances.
    The defendant called witnesses, some of whom were very old, who testified that so long as any of them could remember, the locus in quo had been a part of the common near the meetinghouse, which had been used by all the inhabitants of the town, and all others, to pass over at pleasure at all seasons and in all directions, and that the same had so remained till the summer or fall of 1805, when the locus was inclosed and the parsonage-house erected by the parish. The same witnesses testified, that during the same period there had been bars in the fence between the locus and the defendant’s close, which the occupants of his close had used whenever they had had occasion to pass to and from the same in that place, at all seasons of the year, and that in thus using the bars they had passed over the locus in whatever direction was most convenient for them. But it further appeared, that these bars had been removed sixteen or eighteen feet westward from their former position ; that where they now are, formerly stood a schoolhouse. It was also testified, that on the easterly side of the defendant’s close, there are other bars from Pond lane into his close, which sometimes had been used, and that they might at all times be used instead of the bars which led into the plaintiff’s close. The witnesses differed in opinion, as to which bars, if exclusively used, would be most convenient.
    The plaintiff contended, that the vote of 1741 and the foregoing evidence, did not support, but negatived the defendant’s pleas ; and that the vote transferred to the first parish the whole estate of the town in the premises, for the purposes find with the limitations and restrictions therein mentioned. He also offered in evidence several votes of the parish, by which they inclosed the burying-ground and conveyed several lots of land comprehended in the vote of 1741. These votes were objected to and rejected. The plaintiff also gave in evidence a vote of the parish passed September 1804, to sell the locus in quo, which was objected to by several freeholders and never carried into effect. Also a vote, passed January 1st, 1805, to inclose the locus and to erect a parsonage house upon it. The third article in the warrant for calling the meeting on January 1st, 1805, was “ to see if the parish will alter the model of the parsonage house, and build it near the meetinghouse, if matters can be accommodated, or what they will do in that affair.” There was no evidence that any freeholder objected to the vote. The plaintiff contended that this was a disposition of the locus, with the virtual consent of all the freeholders of the parish, as required in the vote of 1741. But the defendant contended that the fee was not in the parish, and that the parish had no right to dispose of it; that, at any rate, there was no article in the warrant which would authorize the parish to make a grant of it ; and that no grant would be valid, unless the assent of all the freeholders was expressed or appeared. The plaintiff also proved, that his close was staked out in the fall of 1804, pursuant to the vote of the parish, and some wood carried upon it by the parish for the minister, to be used by him after the house should be erected. The locus was inclosed in 1805. It appeared that the defendant had used the way in November 1824, and that it had also been used withirf twenty years before that time. The plaintiff contended, that if the defendant ever had a right of way, he had lost it by nonuser. The plaintiff also offered several votes of the town of Reading, passed March 4th, 1771, — May 4tb, 1777, —September 25th, 1770, — 1788, and 1807, which were objected to and rejected. By the vote of March 4th, 1771, the town accepted a report of a committee, “that the first parish, in addition to what they have already received of the town, and further to enable them to maintain the gospel among them,” have two parcels of land specified in the reporr, on certain con ditions. In 1788 the town voted, “ to confirm to the first parish, the lands granted to them conditionally by the town on March 4th, 1771.” The vote of 1807 confirmed to each parish the common land in such parish-, with an exception as to gravel for mending roads, and another exception in regard to a training-field.
    Upon the whole evidence the judge instructed the jury, that the vote of 1741 did not pass to the parish the fee of the plaintiff’s close, or a right to appropriate, fence or in any other way incumber it; that the vote of the parish in 1805 was unauthorized and invalid, and that if the defendant or his predecessors had acquired a right of way by prescription or otherwise, a non-user of it for any period short of twenty years would not destroy the right.
    The jury returned a verdict for the defendant. If upon the evidence above stated which was admitted or was admissible, the instruction and the verdict were right, judgment was to be rendered on the verdict.
    
      T. Fuller, for the plaintiff.
    The right of way set forth in the plea, over the whole of the plaintiff’s close and in all directions, is unreasonable and void. Jones v. Percival, 5 Pick. 485.
    
      Oct. 15th, 1829.
    The way claimed is over the whole close, but the evidence is, that a schoolhouse stood on a part of it so long as to destroy the right of way in that part; so that there is a variance. The witnesses were uncertain at what time the schoolhouse was actually built, but the town records show an appropriation made for that purpose in 1761.
    The evidence is, not that the locus in quo is a way, but part of a common ; which is another variance. The nature of the way and the termini must be described. 3 Stark. Ev. 1679.
    The conveyance under which the defendant claims is void, because the deed to Prentiss was made by the parish alone, and not by the minister with the assent of the parish. Austin v. Thomas, 14 Mass. R. 333 ; Prov. St. 27 Geo. 2, c. 9. [See the next case.]
    The plaintiff’s close having been fenced ever since 1805, the defendant’s grantors were disseised of the right of way, so that it did not pass by their deed to the defendant.
    
      The vote of the town in 1741 gave to the parish the use of the plaintiff’s close, without limiting the time, and therefore the fee passed by virtue of the statute of uses. The estate was defeasible on the non-performance of certain conditions, but the grantors only, and not the defendant, who is a stranger, can take advantage of the non-performance Gray v. Blanchard, 8 Pick. 284. Two votes of the town having a bearing on this point, ought to have been admitted in evidence ; one passed in 1788, the other in 1807, confirming to the parish the common lands which had been granted to them by, former votes.
    The inclosure of the plaintiff’s land was acquiesced in for more than nineteen years, which is a ground for presuming that the right of way was lost. Goodtitle v. Chandos, 2 Burr. 1073. The provision, that the land should remain unfenced, was intended to give to owners of certain lands a way to the pond ; but this was secured to the defendant by Pond lane, a public way which the town is bound to keep in repair. This is a sufficient compliance with the vote ; which must receive a reasonable construction.
    The plaintiff’s close was fenced in by the assent of every member in the parish, it being done in pursuance of the vote of the parish in 1805, at a meeting duly notified, and there being no evidence of dissent.
    Hoar, for the defendant,
    to show that the words in the deed to Prentiss were an implied covenant that the locus in quo should always be open as a way, cited Parker v. Smith, 17 Mass. R. 415. In regard to the schoolhouse, he said a nonuser does not destroy a right of way. White v. Crawford, 10 Mass. R. 183. As to the locus in quo being a common, he said the vote of 1741 explicitly makes it a way. The supposed acquiescence for nineteen years, had it been proved, would be unimportant. There was no disseisin of the right of way at the time of the conveyance to the defendant ; it does not appear that any person had been obstructed in using the way.
    
      Webster, in replying, said that the words in the deed to Prentiss, “ bounded all round by the land given for particular uses,” was mere description. If a grantor bounds land on a 
      troy, he is estopped to say there was not a way, but he does not covenant that the way shall always continue.
    
      My 1831.
   Putnam J.

afterward drew up the opinion of the Court. If the right of the defendant to pass and repass in all directions over the locus in quo be supported according to the allegations in the fourth plea in bar, it will not be necessary to take into consideration the right claimed by prescription. The jury have found that there is such a way appurtenant to the close of the defendant; and we do not see how they could have found otherwise, without disregarding the vote of the town passed in 1741, and the other evidence in the case.

The locus in quo, &c. was a part of the common, which was appropriated “ 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 said lands for their more convenient coming at and improving their own lands and buildings : all the aforesaid lands to remain unfenced as they then (viz. 1741) were, 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 the parish.”

Now it appears that the parish have undertaken to dispose of the land to the plaintiff, and the land of the defendant is deprived of the privilege of bounding and fronting upon the common ; and there is no evidence produced, that every freeholder consented to the sale to the plaintiff. Such consent is not to be presumed to have been given by the owner of - the defendant’s lot, because it would greatly lessen its value. The parish granted the land now claimed by the defendant, to the Rev. Mr. Prentiss, and bounded it upon the common.

The case falls within the principles settled in Parker et al. v. Smith, 17 Mass. R. 415. In that case the grantor conveyed land bounding southwardly and westwardly upon a way or street; ” and the Court held that not to be matter of description merely, but an implied covenant that there were such streets bounding the premises. The reasoning of the chief justice applies to the case at bar. c‘ It probably entered much into the consideration of the purchase, that the lot fronted upon two ways which would be always kept open.” So in the case at bar, the value of the lot conveyed to Mr. Prentiss was greatly increased by its fronting upon the common, which was forever to be kept open.

We are clearly of opinion, that the parish could not, nor can the plaintiff claiming under the parish, legally inclose the land which the inhabitants had appropriated, as is before stated, without the consent of the owners of the lands abutting thereon.

The case finds, that the way has been used within twenty years ; and it is very clear, that the right of way could not be lost by mere non-user for any period short of that time. Co. Lit. 114 6.

We are of opinion that the instruction of the presiding judge was right, and that judgment should be rendered upon the verdict for the defendant. 
      
      
        Shaw C. J. did not sit in the case.
     
      
       See Livingston v. Mayor &c. of N. York, 8 Wendell, 85 ; Clap v. M‘Neil, 4 Mass. R. 589.
     
      
       See 3 Kent’s Comm. (3d ed.) 447, 448; Wright v. Freeman, 5 Harr. & Johns. 477; Comstock v. Van Deusen, 5 Pick. (2d. ed.) 166, note 1, and cases cited; Beardslee v. French, 7 Connect. R. 125; Yeakle v. Nace, 2 Whart. 123; Lawton v. Rivers, 2 M'Cord, 445.
     