
    Robbins versus Borman et al.
    
    The public have only an easement in a turnpike road, and the owners of the soil may maintain trespass against any individual for ploughing up the land.
    The plaintiff declared in trespass, in three distinct counts ; to all of which the defendants pleaded severally the general issue. On two of the counts, a verdict was found in favor of the defendants, and on the other, in favor of the plaintiff.
    All the evidence tending to show any trespass committed by Charles Borman, one of the defendants, was, that he had ploughed up a piece of land within the exterior lines of a turnpike road legally established, which land so ploughed was part of a lot described in one of the counts as belonging to the plaintiff. If this evidence was sufficient, in point of law, to maintain the issue on the part of the plaintiff, judgment was to be rendered on the verdict, otherwise the verdict against Charles Borman was to be set aside, and a verdict of not guilty as to him to be entered.
    The cause was argued and determined at an adjourned term, in November.
    
      C. Willard, for the defendants.
    The plaintiff must have an exclusive right in order to maintain an action of trespass. 1 Chit. Pl. 175, 176, 178, 179; 3 Bl. Comm. 210; Wilson v. Mackreth, 3 Burr. 1824; Clap v. Draper, 4 Mass. Rep. 268. He cannot have the exclusive right of ploughing this land- By St. 1804, c. 125, §2, a turnpike corporation may acquire land through the instrumentality of a committee appointed by the Court of Sessions, or by purchasing it of the owner; and by § 15, when the road is discontinued, the land revests in the original owner. So long as this road continues, the corporation have the exclusive right to this land, and the plaintiff cannot maintain trespass until his title revests.
    ■ Lincoln, for the plaintiff.
    When land is appropriated to be used as a highway, the right of soil remains precisely as it was before. The public have an easement only. Commonwealth v. Peters, 2 Mass. Rep. 125; Fairfield v. Williams, 4 Mass. Rep. 427; Perley v. Chandler, 6 Mass. Rep. 454 There is no difference between a highway and a turnpike road in this respect. Upon the discontinuance of a turnpike road, the exclusive possession reverts to the owner of the soil. Indeed, turnpike roads are laid out very much upon the same principles as county roads.
   Per Curiam.

The public have only an easement in this land. The owner of the land retains his right in the soil, and may maintain trespass. If the ploughing had been for the purpose of mending the road, by direction of the turnpike corporation, that would have been a good defence. The plaintiff is entitled to a verdict against Charles Borman, although the damages may be nominal.

Judgment according to the verdict. 
      
      
        Hart v. Chalker, 5 Conn. R. 311; Stackpole v. Healy, 16 Mass. R. 33; Alden v. Murdock, 13 Mass. R. 256; Jackson v. Hathaway, 15 Johns. R. 447, Makepeace v. Worden, 1 N. Hamp. R. 16; Babcock v. Lamb, 1 Cowen, 238; Bolling v. Mayor, &c. of Petersburg, 3 Randolph, 563. The owner of the soil over which a turnpike road is laid out, may maintain trespass against the servant of the turnpike corporation for taking the herbage. Adams v. Emerson, 6 Pick. 57; Chambers v. Furry, 1 Yeates, 169. But a turnpike corporation may make any use of the land over which the road is located, which is necessary for the enjoyment of its franchise. It may, therefore, cause a dwellinghouse to be erected for the toll-gatherer, and trees to be cut down, and a cellar and well to be dug for the accommodation of the house on such land. Tucker v. Tower, 9 Pick. 109. Where a canal is constructed through a highway, the town in which the highway lies, although it is obliged to maintain it, is not entitled to any damages under a statute providing for the assessment of damages to the owners of land through which the canal passes. Inhabitants of Milbury v. Blackstone Canal Co. 8 Pick. 473. See Sibley v. Holden, 10 Pick. 249; Whitbeck v. Cook, 15 Johns. R. 483; Pritchard v. Atkinson, 3 N. Hamp. R. 335; Peck v. Smith, 1 Conn. R. 103. Watrous v. Southworth, 5 Conn. R. 308; Woolrych on Ways, 5. In Louisiana, the soil of a highway belongs to the public. Renthorpe v. Bourg, 4 Martin’s Louisiana R. 97.
     