
    Job Hill versus Josiah Crosby.
    A grant of a right of way may be presumed from an uninterrupted adverse possession for more than twenty years, unexplained.
    This was an action on the case for a disturbance of a right of way over Concord river, at Billerica, by throwing down the abutment of a bridge which the plaintiff had rebuilt. A verdict was taken for the plaintiff at October term 1821, subject to the opinion of the Court upon the facts which were to be reported by the judge who tried the cause. Several of these facts had a tendency to prove an adverse user of the way for more than twenty years by the plaintiff, hut the question whether they would warrant the presumption of a grant, was not referred to the consideration of the jury-
    
      W. Prescott and Stearns, for the defendant,
    admitted that in England a grant might be presumed from an adverse enjoy men t for twenty years, unexplained, but they contended that that principle was inapplicable here, in consequence of the statute of 1783, c. 37, which requires a conveyance of any interest in land to be by deed, and to be recorded, and the statute of 1786, c. 67, which provides for laying out private ways and making them matters of record. This last statute negatives the principle that twenty years’ enjoyment shall afford a presumption of a grant, in providing (§ 7) that where the boundaries of a private way &c. cannot be determined, fences or buildings fronting on it, which have been upheld for more than forty years, shall be taken to be the boundaries. If an enjoyment for twenty years will give a right of way, then an occupation of the land for twenty years ought to destroy such right ; but in the section just referred to it is provided, that no length of time under sixty years shall justify the continuance of a fence or building on any private way &c. In Gayetty v. Bethune, 14 Mass. R. 55, the Court say that adverse possession for any period short of twenty years will not give a right ; but there a possession for six years only was proved. In Strout v. Berry, 7 Mass. R. 387, the decision turned on another point.
    
      Hoar for the plaintiff.
    The opinion of the Court was read at the sittings after October term 1823, as drawn up by
   Parker C. J.

[After remarking that in point of law the facts did not show a title to the way in the plaintiff] The continued use of the way and the bridge by the plaintiff’s father and himself for more than twenty years, the keeping up and repairing of the bridge, and the passing of the river in the same place in a boat when the bridge was down, show a continuity of possession sufficient to warrant a presumption of a grant ; and we have no doubt a right to an easement may be so proved in this country, as well as in England. But here, as well as there, the possession, to be attended with this consequence, must be adverse, and whether it were or not, is always a fact to be ascertained by the jury. The difficulty we find in supporting the verdict as it new stands is, that this question does not appear to have been referred to the jury, and it is not competent to the Court to settle it On this ground a new trial was granted. 
      
       See Sherwood v. Burr, 4 Day, 244 ; Chalker v. Dickenson, 1 Connect. R. 382 ; Ingraham v. Hutchinson, 2 Connect. R. 584 ; Richard v. Williams, 7 Wheat. 59 ; Campbell v. Wilson, 3 East, 294 ; Gray v. Bond, 2 Brod. & Bingh. 667 ; Keymer v. Summers, Bull. N. P. 74 ; Melvin v. Whiting, 10 Pick. 295 ; Turnbull v. Rivers, 3 M'Cord, 131 ; Cuthbert v. Lawton, id. 194 ; Commonwealth v. Low, 3 Pick. 408 ; Lawton v. Rivers, 2 M'Cord, 451; Coucier v. 
        Graham, 1 Ohio R. 349. From a user of thirty-five .years a jury may presume a ferry had a legal origin. Trotter v. Harris, 2 Young & Jerv. 285.
      The non-user of a way for twenty years, unaccounted for, affords a pre sumption of a release or surrender of the right. See per Abbott C. J. in Dot v. Hilder, 2 Barn. & Ald. 791 ; per Littledale J. in Littleton v. Cross, 3 Barn & Cressw. 339 ; Wright v. Freeman, 5 Harr. & Johns. 477 ; Hoffman v. Savage, 15 Mass. R. 130 ; Emerson v. Wiley, 10 Pick. 310 ; Jenk. 12 ; 2 Inst 653 ; Yelv. (by Metcalf,) 142, n. 1 ; Thomas v. Sorrell, Vaugh. 341 ; Beards lee v. French, 7 Connect. R. 125. But see White v. Crawford, 10 Mass. R 183 ; Comstock v. Van Deusen, 5 Pick 163.
     