
    AMASA MAKEPEACE versus HENRY WORDEN ET AL.
    The public have only a rio-ht of passage in highways : the soil and freehold belong to the owners of the lands through which they are made.
    )f surveyors of highways, in making or repairing roads, cut and convert to their own use wood growing there, they are trespassers.
    THIS was an action of trespass. The declaration contained two counts. 1. For breaking and entering the plaintiff’s close, cutting his trees, and subverting the soil. 2. For taking, carrying away, and converting Jo the defendants’ own use, six cords of wood belonging to the plaintiff. By the statement of facts upon which the cause was submitted to the decision of court, it appeared that the locus in quo was a public highway in the town of Chesterfield, laid out through the plaintiff’s land in 1801 ; that the defendants were employed by the town to make the highway, and that in making the road they necessarily cut sundry trees, which they afterwards carried away and converted to their ovjn private use.
    
      Handerson, for the plaintiff.
    
      Up ham, for tlqe defendants.
   Per curiam.

In highways laid out through the lands of individuals in pursuance of statutes, the public has only an easement, a right of passage ; the soil and freehold remain in the individual whose lands have been taken for that purpose. Towns, whose duty it is to make roads and keep them in repair, have a right to cut trees growing in highways, so far as is necessary to the performance of that duty. It is, therefore, clear, that the defendants are entitled to Judgment on the first count in this case. Whether towns have a right to use trees thus cut in the construction of the road, is a question not necessary to be settled in this case. The plaintiff complains, not that his trees have been thus used, but that they have been converted to the private use of.the defendants. This complaint in our opinion is well founded, and the plaintiff is entitled to judgment on his second count, for the value of the wood.:

Judgment for the plaintiff. 
      
       6 Mass. Rep. 454, Perley vs. Chandler.
     