
    Commonwealth versus The Inhabitants of Newbury.
    In an indictment for not repairing a highway it is not necessary to set out the termini.
    
    A user of a way for 27 years by the inhabitants of the town where it lies, and of the adjacent towns, was held not sufficient to establish it as a town way on the presumption of an ancient laying out or grant.
    
    Where the user is by the inhabitants of other towns, as well as of the one where the way lies, the way should be described as a public way, and not as a private town way. d
    Whether a town way, as such, can be established, except in the mode prescribed by the statutes, quaere.
    
    The principle of dedication seems to be inapplicable to such a way.
    This was an indictment for a nuisance, in which it was alleged, that there was a certain private way for the use of the town of Newhury, leading from Low street, near Tappan’s lane, through the Fourth General pasture in Newbury, to Turkey hill in Newbury, and that this way was in want of repairs and encumbered with a gate and fence at each end of it, so that the inhabitants of the town with their horses, cans and carriages could not pass &c. without great danger &c.
    The cause was tried upon the general issue, before Putnam J., at the sittings after October term, 1822.
    On the part of the commonwealth, Enoch Tappan testified that he remembered the way for fifty years ; that it was called “ The town way in the Fourth General pasture ” ; that it had been repaired by the town 45 years ago, and since, until 1821 ; that it was fenced on the south side the whole distance, nearly on the line, but in one place the fence was a little off from the line ; and that at the westerly part the way wanted repairing. On cross examination, he said that 27 years ago the entrance from Low street was altered from its former place ; that it passed over his land and he stopped it up, supposing he had a right to do so ; that the overseers of the common pasture put up the gate at the entrance where it now is; that the gate used to be kept up about four months in the year; that 23 years ago the way was altered by the proprietors of the pasture, so as to run straight; that it was fenced on the south side 27 years ago; that both sides are fenced out at the westerly end, and that it leads to Turkey hill lane; that there had been a great deal of travelling on this way by the inhabitants of Newbury and Newburyport, especially with carts ; that there had been a gate at the west end as long as he could remember ; that the travelled path on the easterly part of the way had been for 23 years according to certain straight lines on a plan which was produced ; that there was, and is, a drift way to the pasture, 1o the eastward of this way, and that there are several other drift ways leading into this common pasture.
    Nathan Rogers testified that he was 74 years old ; that he had An own this way as long as he could remember; that ha had worked on it himself under a surveyor, and had heard his father say that he had worked on it also ; that he used this way to go to market, from the time that he was 21 until he was 40 years of age ; that in summer he used to shut the gates when they were up, and follow the path, and in winter he went where the snow would permit.
    Stephen Tappan testified that he had known this way for 60 years, and that his father used to say the town owned it ; that he worked on it under a surveyor 50 years ago ; and that there are a number of bridges on it.
    Jacob Merrill testified that his father was a surveyor in 1760 and worked on this way; and that it had been used 27 years according to the straight lines, as far as the upper bridge.
    The records of the “ Proprietors of the Common Pasture ” allotting lands to individuals and bounding the lots by this way, were produced. Under the date of 1725 one lot was described as bounded northerly by “ a four rod highway,” and another lot as bounded southerly by ££ a highway.”
    On the part of the defendants, Josiah Little testified that the gate on this way to Turkey hill had been there more than 40 years ; that there were various other paths across the pasture ; that the proprietors never made any objection against people’s traveling where they pleased in the pasture ; that he was a surveyor of highways in 1770, and had been a surveyor for 10 or 15 years, and did not remember having any direction to work on this way, and he never did any work upon it; that t was called, as were the other ways, ££ a way through the pasture ” ; and that it was of use to a few individuals, and not of general use to the town.
    Joshua Little testified that he had been a surveyor for 15 years from 1773 ; that he was never directed to work on this way; that the common talk was, that it was a drift way ; that he always passed from Turkey hill to Newburyport over this way and through gates.
    The jury xvere directed to find a verdict for the commonwealth, which xvas to be subject to the opinion of the Court.
    
      Gerrish, for the defendants.
    A town way can be laid out only in the mode prescribed by St. 1786, c. 67, and can be proveo by record only, and not by usage. The town cannot take notice of a way xvhich is not recorded. They cannot discontinue it, if they should think it ought to be discontinued. If this way had been open 60 years, it might have been a highxvay, but not a town way. But this is not even a highway. The public, to acquire a right by prescription, should show an adverse uninterrupted usage for a length of time, certainly not less than 40 years ; for an individual is not allowed to claim against the public by reason of a.usage for a shorter period. But here the proprietors of the pasture have kept up gates in summer from the earliest times. They had no objection to people’s going over the pasture in winter. A dedication cannot be presumed, for the gates have been notice to the public, that between April and October the public should not pass over the land. Rugby Charity v. Merryweather, 11 East, 376, note ; Woodyer v. Hadden, 5 Taunt. 126 ; Roberts v. Karr, 1 Campb. 262, note b; Lethbridge v. Winter, ibid. Whenever the proprietors have thought proper, they have changed the place of the gates. The way is not set forth in the indictment with sufficient certainty. A surveyor would not be able by the description to find the road intended. The drift way, which we suppose is the way intended, is called a drift way in the old records of the proprietors, and it was a way for the use of tne proprietors.
    
      Pickering and Mosely for the commonwealth.
    The statute provides, that when a town shall lay out a town way, they shall do it in a particular manner, whereby it will become a matter of record, but the statute does not prohibit them from acquiring a right of way in any other manner ; and this way existed too before the passage of the statute. A town may acquire a way by a grant, as well as an individual, and if they can take by a grant, they may by a user, from which a grant may be presumed. It was said that the town cannot discontinue this way, because it is not recorded. That must depend on the question, whether it is a town way or not. The distinction made between a highway and a town way is rather a distinction in words than in reality, for in either case the town would be bound to keep the way in repair. It is said that an uninterrupted adverse possession for a certain period ought to be shown ; but the question here is not between the owner of land and the grantee of a way, but between the commonwealth and the town. This is an answer to most of the cases cited. The parol evidence however shows that this way has been used as a town way for 60 years, and the same way is referred to in the records of the proprietors nearly a century ago. It is said 'however that 27 years ago one of the termini was changed. But the town, by using the way and by sending their surveyors to repair it since that time, have adopted the alteration. We suppose it to be sufficient for the government, to show that the way, in its present direction, has been used by the town of New-bury and the adjacent towns for 20 years. Rugby Charity v. Merryweather, 11 East, 375, note ; Rex v. Lloyd, 1 Campb. 260 ; Rex v. Barr, 4 Campb. 16 ; Lade v. Shepherd, 2 Str. 1004. Here there has been a user for 27 years. If this is insufficient, then the non-user of the ancient part for that time is insufficient to release the town from their obligation to repair the way in its ancient course ; they are therefore in a dilemma. It is not necessary in an indictment to set out the termini of a public way. Rouse v. Bardin, 1 H. Bl. 351. This way is described with sufficient certainty to enable a jury or a surveyor to find it. The circumstance of there being gates at each end of the way is no ground of presumption against the right of the town, for by St. 1786, c. 81, § 5, gates may be allowed.
    Cummins, in reply. It is said on behalf of the government, that it is immaterial what may be the rights of the proprietors of the land, because here the question is between the commonwealth and the town. But it is very material ; for if the town have not a right, as against the proprietors, a surveyor may be liable as a trespasser for repairing the way. A town cannot take a private way by grant, so as that the corporation can bind all its members to contribute to keep the way in repair. But if it could, there is no evidence of a grant in this case. The town have done nothing adverse to the proprietors. Any repairs made by the town were beneficial to the proprietors. And if any user could make this a town way, it should have been by the innabitants of Newbury exclusively.
    
      At the following term in April, Putnam J. read the opinjQn a major;ty 0f tf,e Court (in which he did not concur) as drawn up by
    
      
      
         Rex v. Edmonton 2 Moody & Malk. 24.
    
    
      
       But there were previous statutes containing similar provisions ; if, however, the parol evidence, taken in connexion with the proprietors’ records, showed a town way existing for a century, as was contended on the part oí the commonwealth, then this argument would apply, for the statute (1 Geo. 2, c. 2) which first required town ways laid out by the selectmen to be recorded was passed in 1727. Reporter.
    
    
      
       See Winkoop v. Burger, 12 Johns. R. 222.
    
   Parker C. J.

It seems not to be necessary, in an indictment for not repairing a highway, to set out the termini a quo and ad quern of the way, though it is certainly better to be thus particular, and is more consistent with the general course of criminal proceedings, which require certainty whenever it is attainable ; that it is not necessary, however, is laid down in 3 Chitty’s Cr. L. 570 ; Rouse v. Bardin, 1 H. Bl. 351. [See also Alban v. Brounsall, Yelv. (Metcalf’s ed.) note 1.] There is therefore no sufficient objection to the indictment.

But we think it has not been proved by the government, that there is such a way in legal existence, as is described in the indictment, viz. leading from Low street, near Tap-pan’s lane, to Turkey hill. It is described as a private way . for the use of the inhabitants of the town of Newbury. If there is any way at all there, it is rather a public than a private way, and should have been described as such. But no way is proved by record, nor is there any proof that the way has existed, or been used, as it now is, for any term of time which will establish it on the presumption of an ancient laying out or grant by the proprietors of the land. Paths across the pasture have undoubtedly been used for fifty or sixty years, probably much longer, but no fixed and determinate way is proved ; the witnesses on the part of the government testifying that, less than thirty years ago, the entrance from Low street has been changed by the proprietors of the land adjoining. There is nothing in the case from which it can be inferred that a town way was ever established here, except that it was sometimes called the town way in ancient times ; but by the records referred to it is called a highway, which, in common language, as well as in statutes, means a public way leading' from town to town or place to place, in contradistinction to private ways for the use of the inhabitants of a particular town. Nor does the fact that it has been from time to time put under the care of the surveyors of Newbury and repaired at the expense of the town, prove it to be such a way as is described, for the same duty would have fallen upon the town had it been a public highway. Neither has the use of this way been limited to the inhabitants of Newbury, for the inhabitants of other towns used it as they had r-' ed ; so that all inference from the actual use of it will toid to the establishment of it as a public, rather than as a private way. Indeed it is difficult to conceive how a town way, merely as such, can be established in any other manner than by laying out for that particular use by the selectmen of the town, by virtue of the statute respecting highways, (1786, c. 67,) unless it should appear that some particular way had been immemorially used by the inhabitants of the town exclusively ; a circumstance which can rarely occur. It seems to be intended by the legislature, that no such ways shall acquire the character of private town ways, except in the form therein provided, and especially by the express allowance of the inhabitants in regular meeting assembled. And we do not see how the principle of dedication to the public can be applied to a private way ; for the very evidence which would tend to show a dedication, would disprove it as a private way. Besides, in this case a dedication is negatived by the fact, that gates were established and kept up by the proprietors of the land ; which is a sufficient indication, that although they were willing people should pass over their pasture, they did not mean to give the land over which the way passed, or surrender their right of discontinuing the use. The English doctrine of dedication is very well settled- There must be a manifest intention to accommodate the public through a man’s land, before he shall be held by implication to have given it; so that even when at the first opening of such way a post only had been put up, which had been soon knocked down and remained down twelve years, and the passage had been uninterrupted all that time, it was determined that the owner might maintain trespass against those who used it as a way, and for that purpose pulled down a gate recently erected. 1 Campb. 262, note.

We are satisfied that there is no such way as is described in the indictment, and therefore that the defendants must be discharged. If the passage is wanted for the public, or by the inhabitants of Newbury as a private way, the respective authorities who have charge of the subject of ways will doubtless do what duty requires of them in this regard.

Putnam J.

dissenting. It was testified in this case by Enoch Tappan, that he remembered this way 50 years, and that it was called the town way ; that it is fenced nearly on the line, on the south side ; and that it is much used by inhabitants of Newbury. Stephen Tappan swears that he has known this way for 60 years, and that his father used to say that the town owned it. Jacob Merrill testified that it had been used for 27 years according to the straight lines as far as the upper bridge. It is literally true, that for a time beyond the memory of man there has been a way from Low street to Turkey hill, through gates at each end of it. The eastern part was varied in its course 27 years ago, and has been used ever since according to the variation. Bridges have been built over this way, and the town has repaired it, from time to time, for more than 60 years. It is true that it was sometimes called a drift way. It has also been used by persons who were not inhabitants of Newbury. This would have been the case if it had been laid out as a private way for the town according to the statute. It happens in all town ways ; and this circumstance is to be taken into consideration in weighing the evidence.

I am aware that the act of repairing does not prove conclusively whether it was a town way or a highway. It is however good evidence to prove that it was either one or the other ; and if it be either, the defendants are bound to repair it. The defence set up, that if any way is proved it is a highway, which it is not alleged, to be in the indictment, ought to be clearly made out, inasmuch as it is perfectly immaterial, in regard to repairs, whether it be one or the other. It is more favorable to the defendants to consider it as a town way, because then they can discontinue it.

But I cannot but think, that what the ancient witnesses testify that their fathers declared in their day upon this matter, is of the greatest weight. They called it the town way, when speaking concerning it. They said the town owned it. If it had been a public highway, that language would not have been used. That evidence is much stronger, than the fact so much relied upon in the argument, that a clerk of the proprietors should, in their records, have described an estate bounding upon this place, as bounding on a highway ; for in the latter case the way is but an incidental matter, in the former it is the principal subject. Those old people were speaking of the rights of the town in the way.

If, however, it be true, as is intimated by the learned Chief Justice, in giving the opinion of the Court, that towns cannot acquire a right of way except in the mode provided by the statute, then the judgment should be for the defendants ; because there is no record produced, that it was ever in fact laid out according to the statutes of the commonwealth. If it ever was, the record probably has been lost.

But I am of opinion, that the inhabitants of a town may prescribe for a way, as well as individuals, or as the inhabitants of the commonwealth may. The modes of laying out private ways and highways by the statute, were cumulative provisions ; leaving the common law touching ways by prescription unaltered.

In 17 Vin. Abr. 256, Prescription, A, in notis, it is laid down, that prescription may be, that the usage of the vill of D. has been time out of mind, that the inhabitants &c. have had a way over the land of the plaintiff to the church &c. ; and that inhabitants may prescribe for an easement; contra in profit apprender out of another’s land. And that distinction will ieconcile all the cases.

In Spear v. Bicknell, 5 Mass. R. 130, the allegation was, that the inhabitants of Quincy were seised of a close, which was part of a highway, and that they, “ and all those whose estate they have in the close, have immemorially, for themselves, their tenants and occupiers, kept up and maintained upon the same highway a gate, at all such seasons of the vear as the same should be found necessary for the preservation of the said close, and of the grass and emblements, to be shut by all persons who should open and pass through the same.” Parsons C. J. says, “ This prescription may he good in law, for it might have a lawful commencement.”

This Court, in the case of Hill v. Crosby, in Middlesex, [vide post 466] lately had occasion to consider and fully to adopt the modern doctrine, that a right of way may be acquired by usage for 20 years under a claim of right unexplained. That was in the case of an individual; but I do not perceive any difference, in principle, whether the claim is by an individual or by a town. It only requires more evidence in the latter case than in the former, or it may be more difficult for a town to establish the right, than it would be for an individual; but the right, when once established, is to be maintained and exercised alike by both.

Individuals are permitted to claim a right of way by prescription, over land belonging to the inhabitants of a town. That was decided in the case of The Inhabitants of the First Parish in Gloucester v. Beach, in Essex, not reported. It is true that the evidence which the defendant in that case produced, was held not sufficient to establish the right of way. In other words, the usage was explained by the plaintiffs to have been by their leave and license, revocable at their pleasure, and not under an adverse claim of right. I do not know any reason why we should not apply the same rules in favor of the inhabitants of a town, when they claim rights of way by usage, as we do when enforcing such claims against the inhabitants.

Now this usage or prescription is received as evidence of a grant, and if it be true that the inhabitants of a town could not take by grant, then it ought not to prevail. But I do not perceive the force of the objection. Suppose a grant made recently by the owner of the land to the inhabitants, of a right to pass as on a town way laid out by the selectmen, if they will accept it, and they should accept it by vote ; it would in my opinion become a town way immediately. .If the grant were lost or not produced, and the usage had been to pass over the land as over a town way, and the town had by their acts manifested an acceptance of the way, I see no reason why it should not be, to all intents and purposes, a private way for the inhabitants, just as if it had been laid out according to the statute.

This point being in this manner settled seems also to settle the other, respecting the gates which have been placed, for more than forty years certainly, upon this way. It only proves that the right obtained by usage was so limited and encumbered by the owner of the land, and so accepted by the town. By the St. 1786, c. 81, § 5, gates and bars on a highway are not removable as nuisances, if erected and continued by the Court of Sessions. The gate on the way leading from Northampton to Springfield, for example, is it abatable as a nuisance ? It has been there as long, and probably for a much greater length of time, than the gates on the way in Newbury. Suppose the record cannot be found, that the Court of Sessions authorized the erection and continuance of the gate at Northampton, would it follow that it is to be considered a nuisance ? I think not. It is to be presumed that the public took the right of way subject to that encumbrance. The same reasoning applies to- the gates leading through the Deerfield meadows.

By the statute last cited, any justice of the peace may remove gates and bars on any private way, unless erected by the leave of the town, or by the person for whose use and benefit the way was laid out. Now does it follow, because the record evidence cannot be produced that the town granted leave to the owners of the land to put up these gates, that therefore a justice of -the peace might remove them as nuisances ? I think not, and for the reason before suggested. The agreement which is to be presumed from the usage, was founded upon the right that the owners of the land might keep up gates. If that had not made a part of the contract, the owners would undoubtedly have had a claim to more damages for the grant of the right of way.

With the greatest respect for my learned brethren, I am obliged to give my opinion, that the defendants are not guilty in keeping up the gates in the manner they have done, but that they are guilty of the nuisance in not repairing the town way. But a majority of the Court having a different opinion, the judgment therefore is, that the defendants be discharged from this indictment, and that they go without day 
      
      
        Rex v. Weonards, 6 Car. & Payne, 582. But if the termini are stated they must be proved, ibid.
     
      
      
        Commonwealth v. Low. 3 Pick. 408. See also Todd v. Rome, 2 Greenl. 55, Estes v. Troy, 5 Greenl. 368; Rowell v. Montville, 4 Greenl. 470; Commonwealth v. Charlestown, 1 Pick. 188; Ward v. Folly, 2 Southard, 482; Galatian v. Gardner, 7 Johns. R. 106.
     
      
      
        Commonwealth v. Lote, 3 Pick. 408.
     
      
       See Wood v. Veal, 5 Barn. & Ald. 454; Jarvis v. Dean, 3 Bingh. 447
     
      
       See Pritchard v. Atkinson, 3 N. Hamp. R. 335.
     
      
       The following is a note of the case here referred to.
      The Inhabitants of the First Parish in Gloucester versus William Beach.
      This was an action of trespass quare clausum, &c. The defendant pleaded a right of way, first, by prescription, and secondly by a non-existing grant by the plaintiffs to one Penhallow, under whom the defendant justified, as servant; the plaintiffs traversed the prescription and the grant.
      The facts on the trial, before Putnam J., at the sittings after the October term 1821, in Essex, were in substance as follows: — The close over which the defendant claimed the right of way, had been occupied by the plaintiffs for more than sixty years as a site for their meetinghouse. It had never been fenced till within a year or two past; but those parts of it which were not actually covered by the meetinghouse, had remained open at each end of the meetinghouse, and also back of it, and the inhabitants of the parish, #s well as other persons, used to pass without any interruption over the open land, to and from the street and back of the meetinghouse, as they pleased. The defendant claimed a right to pass from the street across one end of the close to Penhallow’s lot, which adjoined the back part of the close, and on which the owner of that lot had built a barn in the year 1764, and a cordage house adjoining the same, more than thirty years before this suit; and no other passage had been used to the barn except over the plaintiffs’ close. The defendant relied upon the usage as evidence from which the jury might presume a grant of the way. There was no evidence of a usage for sixty years, but there was fbr more than twenty, namely, from the year 1764.
      The plaintiffs contended, that it was by the indulgence of the parish, and not under an adverse claim of right, that the defendant and those under whom he justified, had used to pass over the close; and that question was left to the jury, with a direction by the judge, that if the passing had been continued uninterruptedly for more than twenty years, adversely, they might presume a grant; but if such usage had been by indulgence and at the will of the plaintiffs, then the verdict must be against the defendant. The jury returned a verdict for the defendant, and the plaintiffs moved for a new trial on the ground of a misdirection; contending that no such presumption of the grant of a way ought to be made against the plaintiffs, or any corporation like theirs, under the facts in this case.
      At the October term 1822, J. Pickering and Nash, in support of the motion for a new trial, contended that the modern English rule of presuming a grant of an easement, after a user of twenty years, was not applicable to the case of a corporation like the plaintiffs; and that there had not been any adjudication, as it was believed, in which that rule had been expressly adopted by our courts to the extent which would be necessary for the defendant’s case. That in this State we have a public registry of deeds, which precluded the necessity of such a presumption; and that the defendant ought not to have the benefit of it, unless he should first show, that the public records have been destroyed, or that he has examined them. If, however, the English rule was adopted here, then it was necessary to. consider the principles on which it rested, in order to determine how far it was applicable to cases like the present. This rule, like many others, had various limitations; as for example, in the case of minors, feme-coverts and others, who from legal incapacity cannot make a grant, and against whom, of course, there can be no presumption of one; of trustees, in whom it would be a breach of trust to convey; Keene v. Deardon, 8 East, 264, per Lord Ellenborough ; of a tenant for life, generally, whose acts do not bind the reversioner: 2 Saund. 175 d, Williams’s notes; of a parson or rector, whose acts likewise are not binding upon his successor; Wall v. Nixon, 3 Smith’s Rep. 316, and Barker v. Richardson et al., 4 Barn. & Ald. 579; of a tenant for years, his landlord not having any knowledge of the user; Daniel v. North, 11 East, 372. There were other exceptions, arising from the nature of the property itself, as in the case of navigable rivers; Vooght v. Winch, 2 Barn. & Ald. 662; and rights of common; Dawson v. Duke of Norfolk, 1 Price, 246. Now the plaintiffs’ close adjacent to their meetinghouse is necessarily kept open, that it may be conveniently used for the horses and carriages and other accommodations of persons who attend religious worship there, as well as for the ordinary occasions of the parish; just as training fields, commons, landing places &c., are kept open. If the close had always been kept shut up, and the parish had notwithstanding suffered the defendant alone to use a passage way over it, his rights might have been different. Further; the user or possession in these cases must be such as to occasion an injury to the plaintiff; Cooper v. Barber, 3 Taunt. 99, and Daniel v. North, 11 East, 374. per Lord Ellenborough ; but from the nature of the property, and the public use to which it was appropriated, this could not take place in the present case. The plaintiffs also constitute a corporation, which was originally the town; they can act only by a corporate vote, and no record of any vote appears; they are merely trustees holding this property for a public use for the individuals who attend religious worship there. The defendant was himself an inhabitant of the town, and though not a member of the parish was a resident within it, and consequently was conusant of the rights of the parish in the property, and must be presumed to have had notice of the various uses made of it by the parish, and of the permission they had given for the erection of the town pound, the engine house, &c. It was also an objection to the defendant’s claim, that the way was wholly indefinite ; if the evidence proved any right, it showed a general right to pass over any part of the unenclosed land. Upon the whole evidence, the defendant had nothing more than a license, which the plaintiffs might revoke.
      
        Saltonstall and Cummins, for the defendant, contended that the presumption of a grant might arise from the user, as well against a corporation of this kind, as an individual; that the rule of law was general, and in all cases it was a question to the jury, whether the use of a way or other easement was uninterrupted and unexplained; Griffith v. Mathews, 5 T. R. 296; Campbell v. Wilson, 3 East, 294; Holcroft v. Heel, 1 Bos. & Pul. 400; Jackson v. Stephens, 13 Johns. R. 495. The rule of law is modern, but is well settled and fully recognised here, that a grant may be presumed after twenty years, if unexplained; Gayetty v. Bethune, 14 Mass. R. 49. The argument from the provision of our law as to the registry of deeds, is as strong against the grant of an individual, as of corporations, who it was said could only act by a vote; corporations have no more right than individuals, and may be prescribed against. The property here too is more like private than public property, and the parish have so treated it by recently enclosing it; but even if public, the roles of law are the same ; a public body may as well dedicate property to public uses, as an individual. It is not analogous to the case of trustees; they cannot grant, but a parish may. If the question arising in this case was properly submitted to the jury, then a new trial ought not to be granted, unless the verdict is against evidence. Here there were many circumstances to strengthen the presumption of a grant [which the counsel stated in detail] and the use was clearly adverse and equivalent to a claim as of right. The use made by the defendant of the passage was peculiar and unlike that made by any other persons; it was the only passage to a barn which had been on the lot more than forty years. The verdict must be supported, unless in the 'opinion of the Court the presumption of a grant can never arise against a local corporation leaving land unenclosed for any length of time. There was no misdirection; the question put to the jury was, whether the way was by indulgence or under a claim of right.
      
      At April term, 1823, a new trial was ordered.
     
      
      
        Emerson v. Wiley, 7 Pick. 68.
     