
    Jedediah Jones versus James Percival et al.
    
    A right of way over the plaintiff’s land in all directions where most convenient to the defendant, and least prejudicial to the plaintiff, cannot be prescribed for, no can a non-existing grant of such a way be presumed. So held in the case of sal marsh.
    Trespass quare clausum fregit. Pleas, 1. a right of waj by prescription from the upland across the plaintiff’s sal marsh (the locus in quo), to the defendant’s salt marsh, in the fall and winter, where most convenient to the defendants anc. least prejudicial to the plaintiff, for the purposes of getting the produce of the defendant’s marsh and of improving and managing the same : — 2. a right of way of the same kind and extent by a non-existing grant. Replications, de suá injuria and issues thereon.
    
      At the trial, before Morton J., it appeared in evidence, that the defendants, at the times mentioned in the declaration, did, for the purpose of removing hay from their marsh, pass over the plaintiff’s marsh in different places and directions, not confining themselves to any particular course or cart path, but going wherever it was most convenient to them, taking care only to avoid places where their passing would be most injurious to the plaintiff.
    The defendants introduced several witnesses. The testimony of some of them tended to prove that the owners of the defendants’ marsh had for many years carted . their hay over the plaintiff’s marsh, going wherever they pleased, only endeavouring to keep upon the hardest part of the marsh ; the testimony of others tended to show that a particular route had generally been taken.
    The plaintiff contended that such a w'ay as the defendants described in their plea, was unreasonable and could not be prescribed for, nor could a grant of such a way be presumed ; but that the way must be confined to a particular route.
    The jury were instructed, that the defendants might show their title to such a way as they had described in their pleas, by prescription or grant, and that a grant might be presumed from an uninterrupted use for more than twenty years. They were also instructed, that proof that the defendants had used a way in a particular direction or route, -could not support either of their pleas, but that it was necessary for them to show a continued use of the right to pass in any direction most convenient to them and least prejudicial to the plaintiff.
    A verdict was returned for the defendants.
    The plaintiff excepted to the first instruction above stated ; and he moved for a new trial, because, the verdict was against the weight of the evidence upon the point of the last instruction.
    
      Williams and Marston, for the plaintiff.
    
      Reed,
    
    for the defendants, said that the parcels of marsh above mentioned, were part of an extensive tract of similar and, owned by divers persons, and that it was a matter of necessity for one to pass over the land of another, in removing his hay. From the nature of the soil, therefore, the way as claimed by the defendants was not unreasonable. He cited Com. Dig. Prescription, E 4, and Chimin, D 2, D 4 ; Campbell v. Wilson, 3 East, 294 ; Gayetty v. Bethune, 14 Mass. R. 49 ; Gateward's case, 6 Co. 60 ; Fitch v. Rawling, 2 H. Bl. 393 ; 2 Bac. Abr. 234, Customs, C ; 1 Bl. Com. 77.
   Morton J.

delivered the opinion of the Court. It is true, as was contended by the defendants’ counsel, that a custom for the owners of adjoining closes, not separated by partition fences, to turn their teams upon each other’s land in ploughing, is good. It enables the respective owners more conveniently and advantageously to improve their lands. It is also founded on reciprocity and is promotive of husbandry. But a custom for the inhabitants of a certain place, or the owners of a certain close, to pass over the soil of another wherever it is most convenient to themselves, and least prejudicial to the owner, would be unreasonable. In practice it would lead to contention and litigation. The rights of the respective parties under such a custom are so undefined and doubtful, that the custom would be void for uncertainty.

In the case at bar, the right of passing is claimed as a way, and not by force of a custom. A way ex vi termini imports a right of passing in a particular line.* The way must be kept in repair by the owner of the easement, and not by the owner of the land over which it passes. Taylor v. Whitehead, 2 Doug. 749 ; [3 Kent’s Comm. (3d ed.) 424.]

The practice of the defendants to pass over the plaintiff’s close in different directions several times a year, however long continued, can neither establish a general right thus to use the close, nor a right of way over it in a specific course. Each entry, unless by permission of the plaintiff, was a trespass, and no number of entries, however great, upon different parts of the close, can raise a presumption of a grant, or establish a right by prescription.

A grant in the words of the defendants’ pleas would give to the grantee an election, subject to the restriction mentioned, of the place and course in which the way should in the first instance be located ; but it would not authorize him after-wards from year tt year, or day to day, to change its course. Having been once established, any deviation from it would be a trespass.

Verdict set aside and a new trial granted. 
      
       See Wilkes v. Broadbent, 1 Wilson, 63 ; Mitchel v. Reynolds 10 Mod. 133 Paramore v. Verrall, 2 And. 152, 153; Cro. Jac. 80
     
      
       See 3 Kent's Comm. (3d ed.) 419.
     