
    Daniel M‘Mahon against Thomas C. Taylor.
    The original proprietor of the site of Pinkneyville, having sold the residue of the tract to the plaintiif, taking off the piece assigned for the village, tho* on the western boundary, there remained a slip of «and beyond the lots of the village, which might be regarded as a way or common, yet the plaintiff could have no right to it, though it was not of immediate use to the villagers; neither could the defendant, who owned the village lots adjacent, apply it to his own use.
    This was an action of trespass, to try title to a small portion of land in the village of Pinckneyville.
    McMahon, the plaintiff had purchased a tract of land, of 300 acres, which formerly belonged to James Bankhead, to whom it was originally granted, on which the village of Pinckneyville was situated.
    This site was selected by the commissioners for erectingthe court-house and public buildings, when the former District of Pinckney was laid off into a separate jurisdiction from the old districts of Ninety-six and Camden.
    After the situation had been fixed upon by the commissioners, on the part of the state, and Mr. Bankhead, the proprietor of the land, conjointly, they proceeded to run out the western boundary of the village. And Mr. Brown, an intelligent surveyor, swore upon the trial, that he, in the presence of the commissioners and Mr. Bankhead, jointly, and at their request, did proceed to run out this boundary line, which was to he the permanent limits to the west of the said village; in which line he marked a post oak as a station tree, which was still upon the said line, or the stump of it, which remains to this day. That some short time afterwards he was employed to lay off the town, which he did; and after funning out the squares for the public buildings, be proceeded to run out the streets in said town, which were all run parallel with the western of the village, or at right angles to or from it.
    He further proved that he afterwards ran out the lots of the village, many of which wore after-wards sold aud disposed of to private individuals. That in laying off these private lots, a space of 33i feet was left between the western boundary of all these lots situate on the west part of the village, and the orignal western boundary fixed by him in the presence of the commissioners and Bankhead, which he said would answer very well for a street or outlet, for villagers in that part of the town; and this vacant space, or street, is laid down on the plan of the town.
    ■ Mr. Taylor, it seems, had purchased a lot or lots adjoining this space thus left open j and has run his fence, or trespassed, upon this space, about halfway across it, say 16 or 17 feet, and it is for this trespass, or supposed trespass, that the present action was commenced by McMahon.
    
    
      ■ M-Mahon, the plaintiff claims under the executor of Bankhead, who sold the residue of the original tract of 300 acres to McMahon, with an express reservation of the town of Pinckneyville to the pv/tlic and private lot owners. So that the great question in the case was, whether JffMohorfs right to the land, under this conveyance, extended up to the rear line of those lots, or was confined to the western boundary line of the J town, as originally laid out. by Mr. Brown, the . ,, n . surveyor, in the presence oí the commissioners and old Bankhead.
    
    The J ury, after considering this case, were clearly of opinion that ML Mahon* s claim on that quarter of the village could not extend further than the original boundary line of the village, and therefore found for the defendant.
   The opinion of the pourt was delivered by

Mr. Justice Bay.

I was of opinion 'at the trial that the verdict was correct, and that McMahon had no right or title to any part of this space or street, and am still of that opinion; and however Taylor may be liable to be indicted for a nuisance, for stopping up a space left for a street, that gave no right or title to M’-Mahon.

I am therefore of opinion that the motion for a new trial should be refused, and my brethren concur with me in this opinion.

JVoif, Colcock, Cheves, and Gantt, J. concurred.

Johnson, J. having been concerned, gave nep. opinion.  