
    The Inhabitants of Rehoboth and Seekonk versus Hunt.
    Towns claiming as tenants in common cannot join in a writ of entry. But if one of them has a right to maintain such action alone, the Court may grant leave to strike out the name of the other.
    A grant of the herbage or feeding of land does not convey the soil, and the grantee cannot maintain a writ of entry against the grantor or those claiming under him.
    The proprietors of common land voted, that the income of it should be devoted to the support of a school in the town where it lay, and that it should be leased, from time to time, for ever, by the selectmen. Held, that this was a grant, and that the proprietors could not rescind their vote.
    This was a writ of entry, in which the demandants claimed as tenants in common. It appeared from records produced ai the trial, that in the year 1641, the General Court of Plymouth colony granted to the inhabitants of Seekonk (afterwards Rehoboth) liberty to take up a tract of land for their comfortable subsistence, eight miles square. A tract of land was accordingly taken up, and, in 1643, an agreement was made by the inhabitants of Seekonk, that the land granted “be divided according to person and estate as is expressed in the following list.” In 1689, the General Court approved of the boundaries of tne town, and confirmed the lands within the boundaries unto the several proprietors, according to each one’s just right, title and interest, and unto their heirs and assigns for ever. There were at first no separate meetings of the town and of the proprieto":, and no separate records. In 1697, at a town meeting, w=3 voted that three acres for clay, (the premises demand-;d m the writ,) should be left common perpetually. In 1712, the proprietors met, and chose as proprietors’ clerk the same person that was the town clerk, and the records of the town and of the proprietors were kept in one book until 1730; at which time the town passed a vote, that the proprietors might copy from the town records all votes and acts of the town as a proprietary, and also the votes of the proprietary as distinct from the town, into a book to be kept for the use of tbe proprietors. In 1731, the proprietors completed this work, and afterwards no business relating to the lands was transacted in town meeting. In 1735, at a meeting of the proprietors of the common and undivided land in Rehoboth, a committee was chosen to devise a mode of dividing the land. This committee reported, among other things, that about three acres, commonly called the clay pits, (the premises demanded,) should not be divided, “ but lay in common for every proprietor to use for the digging of clay for their own use only, and the herbage or feeding thereof, viz. the income that should thereafter arise from such land, be devoted by said proprietors towards the upholding of a school in said town, and be let or leased out by the selectmen of the said town, from time to time, for ever thereafter.” The proprietors accepted this part of the report. It appeared by the testimony of witnesses, that the demanded premises had been, by the authority of the town, leased or let annually, from the year 1785 until 1801, and divers years after that time; but that for some of the years they were not leased, because the rent was so low, that the selectmen concluded that it would be more for the interest ol me town to suffei the young trees to grow up, than to cultivate the land. But no one ever questioned the right and title of the demandants until 1817, when certain proprietors claimed a title, and reconsidered the vote of 1735, and afterwards conveyed th® land to the tenant.
    The present town of Seekonk was incorporated m 1812. having been before a part of Rehoboth. The act of in corporation contains no provision respecting the land in dis pute. *
    
    A verdict was taken by consent, subject to the opinion of the whole Court.
    
      W. Baylies and Morton, for the tenant.
    If the land belongs to the plaintiffs, they cannot recover in this suit, for tenants in common cannot join in a real action. Daniels v. Daniels, 7 Mass. Rep. 135; Bac. Abr. Jointenants, &c. K; Stone v. Bromwich, Yelv. 161; Co. Lit. 45 a, Hargr. note 7, 195 b, 196 a; Chit. Pl. 54; Harrison v. Barnby, 5 D. & E 248.
    But the plaintiffs have no title. As the original inhabitants of Rehoboth owned all the land in the township, the business relating to the land was transacted in town meetings; but in 1730, after other persons had become inhabitants, and some of the old inhabitants had removed from the town, it was thought best that the proprietors should manage their concerns separately; and this arrangement was recognized by the town. The whole claim of the plaintiffs is founded on the vote of the proprieters in 1735. This vote was only a declaration, that the income from the herbage and feeding should be devoted to a particular purpose. It was only an appropriation by the proprietors of their own funds, which they might revoke at their pleasure. They go on to say, that each proprietor shall have a right to dig clay for his own use. The soil and freehold remained in the proprietors, and the plaintiffs, if they have any right, claim too much. A man may have a grant of the herbage, without acquiring a right to the soil. Clap v. Draper, 4 Mass. Rep. 268. The possession of the plaintiffs since the vote of 1735 was according to their right, and was consistent with the rights of the proprietors under whom the tenant derives his title.
    
      T. Burgess and A. Cushman, for the plaintiffs.
    The inhabitants of Rehoboth were the true proprietors of the land in question. In 1697, the town voted that it should be left com» mon perpetually. Any one, who became an inhabitant after-wards, had a right in the common. Where a man divides his .and into lots, and sets out part of it as a common, every purchaser of a lot has a right in the part so set out. In 1735, some persons, pretending to act as proprietors, undertook to rescind this vote, but they had no power to alter the tenure of the land thirty-eight} ears after it was created. The plaintiffs have had an occupancy of more than a hundred years.
    If the inhabitants of Rehoboth were formerly owners and tenants in common, they have not ceased to be so by being divided into two towns. They were a corporation under St. 4 W. fy M. c. 13, and St. 12 Jlnne, c. 2, enabling proprietors of common lands to manage and dispose of them. The words, “ inhabitants of Rehoboth and Seekonk,” are the name by which they sue, and are merely a description of the citizens of the old territory. If the inhabitants of both towns are tenants in common, the action is rightly brought, because they claim under one title. This is the principle on which joint tenants are required to join. It is held in one case, that, where a part of a town is incorporated into a new town, the public property continues to belong to the old town ; but the decision does not go so far as to say, that where a burden is imposed on the new town, as in the act incorporating Seekonk, the new town shall have none of the property.
    In reply to this last point, the counsel for the tenant referred to Windham v. Portland, 4 Mass. Rep. 389; Richards v. Dagget, ibid. 539; Minot v. Curtis, 7 Mass. Rep. 441; First Parish in Brunswick v. Dunning, ibid. 445; Brown v. Porter, 10 Mass. Rep. 97.
   The opinion of the Court was delivered at April term 1823, at Taunton, by

Parker C. J.

It is very clear, that these two towns cannot join in this action ; they claim as tenants in common, and ought to sue severally for their undivided right. But this difficulty might be avoided by striking out one of the plaintiff towns ; which the Court would authorize, if the action could be maintained by either of the towns alone. We have, therefore, looked into the case, to see if the inhabitants of Re hoboth could maintain the action, if they were the sole plaintiffs, and are satisfied they could not. The title to the township was, by the ancient conveyances, in sundry persons, not as a corporation, but as individuals, being tenants in common ; for although they are mentioned in some of the ancient conveyances as townsmen, or as inhabitants of Rehoboth, this is only by way of description, and not as designating the capacity in which they are to take.

The first attempt to make a disposition of this land is in 1697, when the town voted, that it should be left common for ever. This did not give title to the town, and would not au thorize them to claim seisin and possession of it. Those who should be interrupted in the use of it as a common, would have their action on the case. There is no evidence of any actual use or possession of this land under this vote.

In 1735, the proprietors, who had then begun to act sep arately from the town, appropriated it to the use of all the proprietors for digging clay, and the herbage or income of it was devoted to the support of a school in the town, and the selectmen were authorized to lease or let it for ever.

Considering the proprietors, at this time, as the owners of this tract of land, we are to inquire, what is the legal effect of the above vote respecting it.

It certainly did not vest a fee in the inhabitants of the town, for the land is expressly appropriated to the common use of the proprietors for digging clay ; nor are there any words of grant or conveyance of any kind to the town. The income only is given to the support of a school, and the selectmen are made agents for leasing the land. There is no legal estate in the town or selectmen. But, considering the inhabitants as beneficially interested in this appropriation, they may be considered as entitled to the herbage or income, to appropriate it according to the terms of the vote. But this gives them no seisin of the land, so that they can maintain a writ of entry.

Perhaps trespass quart clausum would lie, if their herbage was injured ; and they must have a right to enter, to take care of the land, and fit it for the production of grass or other vegetable ; or, if they lease it, their lessee may maintain trespass.

In Co. Lit 4 6, it is said ; “ If a man have twenty acres of land, and by deed grant to another and his heirs vesturam tei'rae, the land itself shall not pass, because he hath a particular right in the land, for thereby he shall not have the houses, timber-trees, &c. parcel of the inheritance, but he shall have the vesture, that is, the corn, grass, underwood, &c. And he shall have an action of trespass quare clausum fregit. The same law, if a man grant herbagium terrae, the grantee hath a particular right in the land, and shall have an action quare clausum fregit; but, by grant thereof and liverie made, the soile shall not pass.” It is true, that in the same book it is laid down, that if a man seised in fee of land, grant to another and his heirs the profits of the land, the land itself will pass; and the reason given is, that profits include herbage, vesture, trees, mines, and whatever is parcel of the land ; but the vote of the proprietors, under which the plaintiff towns claim, reserves the soil for the use of the proprietors, and gives only the herbage or income to the town.

In a note by the editors of Coke upon Littleton, (4 6, note 19,) it appears that this doctrine was anciently doubted, but it is stated, that the law as laid down by Coke was confirmed.

We think the fee in the land remained in the proprietors, notwithstanding their vote of 1735, by which the inhabitants of the town acquired a right to use and improve the land and take the profits thereof; and if the inhabitants are disturbed in the enjoyment of their right, they can recover damages in an action of trespass, but they cannot maintain a writ of entry ; because that is to recover possession of the land itself; and they have no right to that against the proprietors or those claiming under them.

The rescinding of the vote of 1735, in 1817, was void, for the proprietors could not avoid or destroy their own grant. It does not appear, that the town had discontinued the use of t.ie land long enough to forfeit their right, and the deed of the proprietors to the defendant in this action cannot prejudice the demandants. They may maintain an action for damages, il tney are prevented from taking the profits of the land, against one holding under the proprietors, as well as against any

stranger, and they have a right to enter and hold possession for the purpose of taking care of the land, and gathering the crops ; but not being seised in fee of the land, as they' have set forth in the writ, they cannot maintain this action.

Judgment for the tenant. 
      
       Jackson on Real Actions, 69.
     
      
       See Worcester v Green, 2 Pick. 425; Hasty v. Johnson, 3 Greenl. 289.
     
      
      
        Pike v Dyke, 2 Greenl 213.
     
      
       Under a prescriptive right to enter upon land and take herbage there, a party cannot justify the cutting and carrying away grass, the digging of pota toes, or the gathering of apples. Simpson v. Coe, 1 N Hamp. Rep. 301.
     