
    The Inhabitants of Worcester versus William E Green.
    The proprietors of a township voted, “ that 100 acres of the poorest land &c. be left coiymon for the use of the town for building stones.” Held, that the land itself did not pass.
    
      Held, that a judgment in an action between a grantor and grantee, through whom the present defendant derived his title from such proprietors, by which it was determined that the land did pass, was not an estoppel upon the defendant in an action brought against him by the town.
    Trespass quart clausum fregit. The supposed trespass consisted in cutting wood on the locus in quo. A trial was had at the April term, before Putnam J., upon the general issue.
    The plaintiffs claimed a title to the locus in quo, by virtue of the following vote of the proprietors of the township of Worcester, passed in 1733, viz. “ Voted, that 100 acres of the poorest land on Mill Stone hill be left common for the use of the town for building stones.” It was testified that the land was an immense quarry of stone ; that formerly there was but little wood on it, but that now there is a considerable quantity.
    The defendant claimed a title by virtue of a subsequent grant from the same proprietors to one Hayward. In 1761, John Flagg and Asa Chadwick, the grantees of Hayward, conveyed to Bezaleel Gleason, who in 1779 conveyed to David Chadwick.
    The plaintiffs produced the record of the case of Gleason v. Flagg et al., decided by the Superior Court of Judicature in 1763, from which they contended it appeared that Gleason was disseised, and so nothing passed by his deed to Chadwick.
    Each party also produced evidence to show a title by possession.
    A verdict was taken for the plaintiffs, subject to the opinion of the whole Court.
    
      Shepley for the defendant.
    The vote of ±733 was not .. grant to the town, but merely a regulation as between the t-roprietors themselves. The vote itself shows that it was only a license ; for if the land passed, it was needless to saj '*• should be left common. And the license was revocable, and was in fact revoked by the grant to Hayward. Cook v. Stearns, 11 Mass. R. 533. If it was a grant, then it was void for uncertainty ; for it cannot be determined, whether the “ 100 acres of the poorest land ” are to be taken all in one parcel, or in different spots. Worthington v. Hylyer, 4 Mass. R. 205. But if any thing passed, it was a limited right to the town to take building stones for their use ; and if they are disturbed in the exercise of that right, their rem edy is case, and not trespass. The words of the vote are not technical, and they are to be taken according to their common meaning. They are not sufficient to pass a fee in the land. Churchill v. Evans, 1 Taunt. 529 ; Chetham v. Williamson, 4 East, 469 ; Lord Mountjoy's case, Co. Lit 164 b ; Co. Lit. 4 b, and note 19, where the remarks in 1 Ventr. 393, about vestura terree, are denied to be law; Hunt v. Rehoboth, 1 Pick. 224.
    
      Lincoln and Bangs for the plaintiffs.
    The Court will give a liberal construction to ancient grants of this kind'. The proprietors who passed the vote in question were probably unlearned men. The situation of the land at the time of the grant, when it was a mass of rocks, without much wood, is to be taken into consideration. It was important that all the inhabitants of the town should know the purpose of the grant, and it was therefore declared in the vote ; but this declaration was not intended as a limitation of the grant. If the land was left common for the purpose of taking stone, there can be no other enjoyment of it. No one can cultivate the land, for the inhabitants of the town may subvert the soil in one place as well as another, and destroy the crop ; they may strip off all the soil and the trees. This is inconsistent with the grant of a mere easement. Suppose the expression had been, £< for the purpose of enabling the town to procure building stone, voted that, the land be left common for the use of the town.” This would have meant the same thing as the expression actually used, and would undoubtedly have arried the fee. Brown v. Porter, 10 Mass. R. 93 ; First Parish in Brunswick v. Dunning, 7 Mass. R. 445. The land passes by a grant of vestura term; 1 Ventr. 393 ; of a boilery of salt, boscus, &c., Bac. Abr. Grant, I, 3 ; Com Dig. Grant, E, 5 ; Co. Lit. 4 b.
    
    The judgment in Gleason v. Flagg et al. is binding upon the defendant, who derives his title from Gleason. That was an action of covenant, in which the plaintiff averred that his grantors were not seised of the land, and the jury found a special verdict, referring it to the Court to determine, whether by the vote of 1733 such a right passed to the town of Worcester as that the proprietors could not afterwards pass the same land ; and the Court gave judgment on the verdict for the full value of the land ; which they could not have done, if they had considered the grant as an incumbrance only. [Parker C. J. There can be no doubt but that the Court decided the fee to be in the town.]
    
      New ton, in reply. The word use shows that it was the intention of the proprietors to give individuals a right to take stones for building their own houses, and not to vest a corporate right in the town. The town had no right to sell the stone.
    In the case of Gleason v. Flagg et al. the town was not a party nor privy, and can take no advantage from the judgment. As between himself and his grantors, Gleason had a right to consider himself disseised or not, for the purpose of trying his right, without having his rights as against other persons affected. And if he were disseised in 1763, the time of that action, it does not follow that he was in 1779, when be made his deed to Chadwick.
   Wilde J.

delivered the opinion of the Court. The plaintiffs’ title is derived from a grant of the proprietors of the common and undivided lands in the town of Worcester, made n the year 1733; and the case depends on the construction to be given to that grant.

In the construction of ancient grants the most liberal and benignant rules have been0 adopted, more effectually to fulfil the intention of the parties, which in early times was not always very plainly expressed. When that intention can be ascertained it is to have full effect, unless it should be found opposed to some rule or principle of law.

The words of the grant of 1733, are, Voted, that 100 acres of the poorest land on Mill Stone hill be left common for the use of the town for building stones.” It was no doubt the intention of the proprietors to secure to the town or its inhabitants a valuable and perpetual interest in the land described in the grant, but the question is, whether the land itself passed. It is certain that the land is not granted in express terms, and if it passed at all it must be by implication ; and no such implication can be allowed, unless the intention of the parties to that effect can be collected from the terms of the grant. These however seem only to indicate a limited use for a particular purpose. The land is to remain for the use of the town for building stone ; and the words, “ left in common,” seem to imply that the fee should remain in the proprietors, and not be divided with their other lands. They may possibly refer to a right in common intended to he conveyed to the inhabitants in their individual capacities, cut such a construction would lead to great difficulties, if we suppose the fee passed ; for in such case it would have passed to the then inhabitants of the town, and could not have enured to the use of their successors, unless they took in their corporate capacity. So that if such had been the intention of tne proprietors, it could not have taken effect according to the rules of law. But there is no reason to suppose that the proprietors intended to part with the fee, nor can we give such a construction to the grant, without disregarding the natural signification of the words of conveyance.

By a grant of mines the grantee has the power to .dig and carry away only ; the land itself does not pass, unless it be by feoffment and livery of seisin, and this exception is founded on principles peculiar to this ancient and obsolete mode of conveyance. Co. Lit. 4. So a grant to dig turf, or a grant" of vesturam terra, or herbagium terra, will not carry the land. The grantee may maintain trespass quare clausum fregit for any wrong done him, but he has not a fee in the land. These rules of construction are directly in point añd are decisive.

Some stress has been laid on the judgment of the Superiour Court of Judicature in the case of Gleason v. Flagg et ah But the plaintiffs were not parties in that suit. They were clearly not bound by the judgment, nor can they claim under it. Estoppels must be mutual, and a judgment will not enure by way of estoppel except between parties and privies. But if the defendant, as assignee of Gleason, were bound by the estoppel, it would only defeat his title, and would not supply any defect in the title of the plaintiffs. Whatever respect, therefore, we may have for the opinion of the provincial judges, we are bound to say that the construction they gave to the grant in question was erroneous.

As to the title by possession, it is clear that there has been no such exclusive and continued possession as will establish the right in either party.

According to the construction we give to the plaintiffs’ grant, they had good right to enter for the purpose mentioned in their grant, and if they at any time exceeded their legal rights, it could not enlarge their title, unless they could show an expulsion of the owner of the fee and an uninterrupted possession after for twenty years.

According to the agreement of the parties, the verdit t is t0 be altered, and to be entered for the defendants, and the judgment must be accordingly. 
      
       See Putnam v. Smith, 4 Vermont R. 622 ; Clapp v. Draper, 4 Mass. R 266 ; Hasty v. Johnson, 3 Greenl. 289.
     
      
       See 2 Roll. Abr. 549, H. pl. 1 ; Dyer, 285 ; Burt v. Moore, 5 T. R. 333 Foote v. Colvin, 3 Johns. R. 216 ; Stewart v. Doughty, 9 Johns. R. 113 
        Stammers v. Dixon, 7 East, 200 ; Clap v. Draper, 4 Mass. R. 266 ; Stultz v. Dickey, 5 Binn. 285 ; Van Doren v. Everitt, 2 Southard, 460. But in such case the plaintiff must have an interest to the exclusion of others, else he can not support the action. Stocks v. Booth, 1 T. R. 430 ; Mainwearing v. Giles, 5 Barn. & Ald. 361 ; Bryan v. Whistler, 8 Barn. & Cress. 294 ; Tompkinson v. Russell, 9 Price, 827 ; Welden v. Bridgewater, Cro. Eliz. 421 ; Bro. Trespass, pl. 174 ; Wilson v. Mackreth, 3 Burr. 1827.
     
      
       See 1 Stark. Ev. (4 Amer. ed.) 191, and note 1 ; Killingsworth v. Bradford, 2 Overton’s R. 204 ; Paynes v. Coales, 1 Munf. 373 ; Turpin v. Thomas, 2 Hen. &. Munf. 139 ; Burrill v. West, 2 N. Hamp. R. 190 ; Wood v. Davis, 7 Cranch, 271 ; Estep v. Hatchman, 14 Serg. & Rawle, 435 ; Stevelie v. Read, 3 Wash. C. C. R. 274. As to the conclusiveness of judgments, &c., see ante, 22, notes 3, 2, 3.
     
      
       It is a general rule, that a tenant shall not be allowed to dispute his landlord’s title during the term; Sayer, 13; Carpenter v. Thompson, 3 N. Hamp. R. 204 ; unless there has been fraud or force to induce the tenant to take a lease* Hammond v. Marsden, 6 Binn. 45. See also on this subject, Doe v. Brightwen, 10 East, 583; Brandt v. Ogden, 1 Johns. R. 156; Johnson v. Howard, 1 Har. & M'Hen. 281; Archer v. Saddler, 2 Hen. & Munf. 370, 
        Borretts v. Turner, 1 Taylor, 112 ; Porter v. Hammond, 3 Greenl. 188 Jackson v. Spear, 7 Wendell, 401 ; Doe v. Mills, 1 Moody & Robinson, 385 But see Willison v. Watkins, 3 Peters, 43 ; Camp v Camp, 5 Connect. R 291
     