
    Commonwealth versus Nathaniel Tucker.
    A parcel of land in the town of D was laid out by that town, in 1658, as a landing place, without being designated to be for the particular use of the town. A part of D, including the landing place, was afterwards set off as a new town 3 after wiich the new town exercised acts of ownership over the landing place, and held exclusive possession of part of it long enough to acquire a title 3 but the ether part was used as a landing place as far back as any witness could remember, oy &. persons who had occasion to use it. Held, that thzs was a public landing place, and that a fence erected by the new town on the part last mentioned was a nuisance.
    A public landing place is not a way, and a town has no power to discontinue it.
    A town has power to discontinue a town way.
    Indictment for a nuisance, in erecting a fence on a public landing place on Neponset river, in Milton.
    At the trial, before Jackson J., in February term 1823, it appeared that the place in question was laid out as a landing place in 1658, by the town of Dorchester, which then included Milton and two other adjoining towns. After the incorporation of Milton, the inhabitants of that town began to claim the landing place as their property ; and in the year 1731 and afterwards, they sold and leased different parts of it, and claimed a right of toll from all who should land goods there. In 1822 a road was laid out by that town from the. highway or Plymouth road to a space of two rods wide next above bighwater mark, which was left for landing lumber and other articles ; and all the residue of the .landing place, as it was described in the indictment, was included by the fence which was complained of as a nuisance.
    Divers witnesses were produced to prove the ancient extent and the free and continued use of the landing place, as far back as any witness could remember, by persons having occasion to use it; but it was admitted that it had been so used, with the exception of certain parts which had been sold or leased as above mentioned; and that no toll had ever been demanded or received by the town of Milton, or any person under them, for the use of it. It was also admitted, that the fence inclosed part of what had been so used as the landing place, and particularly a part which had been used as a passage for carts and other carriages passing from the Plymouth road to the water. The way laid out in 1822, which was on the other side of the landing place, had been used in like manner. The fence was erected by the order of the town of Milton.
    Upon' the evidence in the case, the judge was of opinion that the place in question was a public and common landing place ; and that it was not such a way as could be altered or discontinued by the town of Milton ; and that although the right of way might have been lost as to certain parts, of which that town, or their grantees or lessees, had been in the exclusive possession for many years, yet as the fence was erected on a part that had never been so used, the fence was a nuisance.
    A verdict against the defendant was taken by consent, subject to the opinion of the whole Court.
    
      Rowe and Chickering
    
    now contended that the verdict ought to be set aside. The defendant justifies under a vote of the town of Milton. This landing place is to be considered as a way ; and then the principles in relation to laying out or discontinuing roads will apply. The only case we have found on the subject of landing places, is Bethune v. Turner, 1 Greenl. 111. Milton succeeded to Dorchester, as to all the rights and duties respecting ways situated in the town of Milton. The distinction between a highway arid a town way is kept up in our laws, ever since the first settlement of the country. Colony Laws, 1639 and 1641, (Anc. Chart &c. 126, 127 ;) St. 5 W. & M., c. 8, § 2, 3 ; St. 1 Geo. 2, c. 2, § 1, 2; St. 10 Geo. 2, c. 2. A town way is laid out by the selectmen and approved by the town, and the town may discontinue such way. The argument that this landing place had been used by the public, and was therefore a highway, would prove too much. It is not the use which designates a road as a public way, but the mode of laying it out. The inhabitants of Dorchester, who are the prosecutors in this case, have mistaken their remedy ; they should have applied to the Court of Sessions. The question would then have come up, whether it was expedient to alter or discontinue this way. In strict law, the town of Milton is justified in passing the vote to discontinue, and the defendant, in carrying it into effect.
    
      The statute of 1785, c. 1, § 4, which provides that fences erected on public landing places, “ without lawful permission therefor,” shall be esteemed nuisances, was made to protect such places against the acts of a wrongdoer. Here there was lawful permission to erect the fence.
    
      Morton, Attorney-General,
    contended that the landing place was laid out for the use of all the citizens of the commonwealth ; that after it was laid out, the town of Dorchester had no control over it, and it was immaterial therefore whether Milton succeeded to the rights and duties of Dorchester in regard to it; and that even under the jurisdiction of Milton the part on which the fence was erected had been used from time immemorial as a public highway.
   Parker C. J.

gave the opinion of the Court in substance as follows. The place where the nuisance is alleged to be erected was laid out by the town of Dorchester in the year 1658 as a common landing place. It is not stated to have been laid out for the particular benefit of the town. If it were', however, upon the incorporation of Milton the inhabitants of the several towns composing Dorchester when it was thus appropriated, would retain their right to use it, and this would constitute it a public landing place. The inhabitants of Milton have exercised acts of ownership over it, but they have mistaken their rights ; for Dorchester having laid it out without designating it to be for the use of that town only, it is to be considered as laid out for the public convenience ; and the public had a right to úse it until it should be discontinued by proper authority. Common landing places are recognised by statute, and provision is made for abatement of nuisances on them. The statute contains, however, a provision in favor of persons who have encroached and have had possession for a certain number of years ; St. 1786, c. 67, § 7 ; and so much of this land as has been occupied by houses for the time mentioned in the statute, the public do not attempt to meddle with, but with the rest Milton has no particular right.

It is contended that this landing place is a town way, and that such way may be discontinued by the town where it is situated. But we think that this is something distinct from a way. There seems to be no express authority given to towns to discontinue town ways, but without doubt such authority exists by implication, towns having power to make new ways which would render old ones of no use. But a public landing place is not within their power. It may be that some public landing places have become of no use, but the authority to discontinue them is in the legislature.

Motion for a new trial overruled. 
      
       See Kean v. Stetson, 5 Pick. 492; Bethum v. Turner, 1 Greenl. 111; in which it was decided that selectmen have no authority to lay out a public .anding. In New Hampshire a town has a right to discontinue a way laid out by the town, under a statute. State v. Hampton, 2 N. Hamp. R. 24.
     