
    The Inhabitants of Millbury, Petitioners, &c. versus The Blackstone Canal Company.
    A town which is obliged to maintain a highway, through which a canal has been constructed, not being the owner of the soil, is not entitled to damages under a statute providing for the assessment of damages to the owners of the land through which the canal passes.
    Petition for a writ of certiorari to the County Commissioners. The petition stated, that the Blackstone Canal Company have located and constructed a canal through and over six public highways within the limits of Millbury ; that the petitioners, being injured by reason of the premises and aggrieved by the doings of the commissioners appointed for the purpose of estimating all damages which any person or corporation might sustain by reason of the construction and location of the canal, presented a petition that a jury might be empannelled to ■ assess their damages, and that the county commissioners adjudicated that the prayer of their petition ought not to be granted.
    The St. 1822, c. 27, incorporating the Blackstone Canal Company, provides in § 8, that when the corporation shall have located the canal, they shall make a report to the Court of Sessions, containing “ the names of the owners of the land,” and that commissioners shall estimate all such damages as they shall think any person or corporation shall sustain by the opening of the canal “ through his or their land.”
    
      Oct. 3d.
    
    Merrick, in support of the petition,
    contended that so far as respects this statute, the soil in the highway must be considered as owned by the town, though in respect to the original proprietor they have only an easement. The soil taken away by the respondents belonged to the petitioners ; they had a right to it for the purpose of amending the highway. They became liable to maintain six bridges over the canal, and they think themselves entitled to remuneration.
    
      J. Davis and Mien, contra.
    
    The town have no land in the highway ; the claim for damages should have been made by the owner of the soil.
    The inhabitants of the town have not the easement; it belongs to the Commonwealth; and the remedy for an injury to a highway is an indictment at the suit of the Commonwealth. Bac. Abr. Highways, B; 2 Bl. Com. 35; Spear v. Bicknell, 5 Mass. R. 125; Strout v. Berry, 7 Mass. R. 385.
    
      Oct. 6th
    
   Per Curiam.

The town not being owners of the land under the highway, and.through which the canal passes, are not entitled to any damages.

Petition dismissed: costs for the respondents. 
      
       See Tyler v. Hammond, 11 Pick. 214; United States v. Harris, 1 Sumner, 37; 3 Kent, (3d ed.) 432, 433; Mams v. Emerson, 6 Pick. 57.
     