
    David Hinckley et al. versus Reuben Hastings.
    Whrre tne precise direction of a street in Boston, as laid out and recorded, was uncertain, the laying out was held to be void.
    The principle of dedication of a way has not, it seems, been adopted in this State And in trespass quart clausum, a plea that the public have used and enjoyed a common way over the close for six years, and that the defendant, to remove an obstruction, dug up the soil, was held bad on demurrer.
    Trespass for entering into the plaintiffs’ close, situate m Boston, and digging up the soil and filling the plaintiffs’ ditch.
    The defendant pleaded, first, the general issue ; secondly, that there was a common and public highway over the close, and that because the ditch obstructed the same, the defendant filled the ditch. The plaintiffs replied, traversing the fact of there being any such common and public way ; and thereupon issue was joined.
    Under this issue the defendant produced in evidence, at the trial, the books of the selectmen of Boston relating to the supposed street, the deed from the heirs of Job Prince to the Massachusetts General Hospital therein in part recited, and a plan taken by Stephen P. Fuller, a surveyor. Fuller, being examined, stated that he had been employed, under an order of court in a former suit respecting the same street, to make the plan referred to, but that he was unable, from the description of the street as laid out in the record of the selectmen, to ascertain precisely its course and boundaries. The record recited that the trustees of the Massachusetts General Hospital, in a communication of the 29th of October, inform the selectmen, “ that they have stipulated with the heirs of Mr. J. Prince, that a street at least forty feet wide shall be opened on the east side of the land purchased by them, which will be in a straight line with Blossom street,” and also recited that a deed was signed by the heirs of Prince, by which they conveyed to the trustees of the ' hospital a piece of land, bounded “ easterly, beginning at a stone post on the southerly side of North Allen street &c. and from said stone post &c. it measures 333 feet, 6 inches, on a straight line running nearly south from said stone post until it comes to a post marked M. G. H. at the corner of a wooden fence. It being understood that this line bounds in its whole length on a forty feet street, to be laid out ” &c. The record then proceeds, “ now be it known that the selectmen, being of opinion that it is necessary for the convenience of the inhabitants to have a street to lead from Cambridge street to North Allen street, do hereby, in conformity with the powers vested in them by law, lay out and record the street described in the deed to the trustees of the General Hospital, and referred to in their communication of the 29th October, as a public street or highway, to begin at the stone post above described standing on North Allen street, and extending southerly to Cambridge street, being forty feet wide in its whole extent, and to be called and known by the name of Blossom street.”
    The question reserved on this part of the case was, whether on a view of the records, deed and plans referred to, and the testimony of Fuller, the locus in quo was lawfully laid out as a way or street. If it was, the plaintiffs were to become nonsuit; if otherwise, the defendant was to be defaulted.
    The defendant pleaded, thirdly, “ that long- before &c., to wit, for the space of six years, and at the time when the said supposed trespasses are alleged to have been committed, the citizens of this commonwealth have had, used and enjoyed, and have been accustomed to have, use and enjoy, a certain common way, into, through, over and along the said close &c., and that the defendant, being a citizen &c., had good right into &c., to go &c., and because the said ditch had been wrongfully dug &c. across the said highway and obstructed the same &c., the defendant &c., to remove the obstruction, dug up the soil and filled the ditch ” &c. To this plea there was a general demurrer.
    
      Hubbard and Hooper, for the defendant,
    referred to St, 1799, c. 31, § 3, and St. 1804, c. 73, giving power to the selectmen of Boston to lay out or widen streets, and contended that here was a plain description of a street laid out in conformity to the deed mentioned in the record, and the i eference to the communication from the trustees of the hospital should be rejected as surplusage. Boston v. Brazer, 11 Mass. R. 447 ; Worthington v. Hylyer, 4 Mass. R. 196 To the point, that here had been a dedication of a way, they cited Lade v. Shepherd, 2 Str. 1004 ; Rugby Charity v. Merryweather, 11 East, 376 ; Woodyer v. Hadden, 5 Taunt 125.
    
      W. Sullivan and F. Dexter for the plaintiffs.
   Lincoln J.,

in giving the opinion of the Court, said in substance, that the laying out of the street was void for uncertainty as to the direction of it ; for it appeared from the evidence in the case, that if it were laid out according to the deed referred to in the record, the line of the westerly side would run several feet ' to the westward of old Blossom street; if, on the other hand, it were laid out in a straight line with old Blossom street, according to the communication from the trustees of the hospital, which also is referred to in the record, then it would run several feet to the eastward of the land of the hospital. The court cannot ascertain the intention of the selectmen. A street ought to be laid out with certainty, so that a surveyor may be able to make a plan of it, and so that a jury may ascertain the line of it, when called upon, pursuant to the statutes, to estimate the damages suffered by a party aggrieved by the laying out of the street.

In the defendant’s third plea it is alleged, that the locus in quo has been used as a common way for the space of six years before the trespass is alleged to have been committed, A user for six years does not give a right of way here. In England there may be a dedication of a way, that is, by throwing open a piece of land and permitting the public to use it as a way, without putting up a bar or the like to denote that the owner retains his rights over it. But it is not known that in this commonwealth a way has ever been made by dedication. The third plea is adjudged bad.

According to the agreement of the parties the defendant must be defaulted.

Anonymous

Parker C. J.

A question was made before me respecting an interrogatory filed under a commission to take a deposition. I have consulte'd my brethren upon, "t, and we have come to the conclusion, that the Court have nothing to do with interrogatories before the commission is returned ; but they must be objected to, if at all, before they go, and the objections noted. , 
      
      
        Hicks v. Fisk, 4 Mason, 310; Beardslee v. French, 7 Conn. R. 125; Arnold v. Flattery, 5 Hammond, 273. See Herrick v. Stover, 5 Wendell, 580.
     
      
       The principle of dedication of a way has been regarded as well settled in the common law, by the following English authorities. Lade v. Shepherd, 
        2 Str. 1004; Rugby Charity v. Merryweather, 11 East, 376, n.; Woodyer v. Hadden, 5 Taunt. 125; Wood v. Veal, 5 Barn. & Ald. 454; Jarvis v. Dean, 3 Bingh. 447; King v. Wright, 3 Barn. & Adol. 681; British Museum v. Finnis, 5 Carr. & Payne, 460; Rex v. Leake, 2 Neville & Manning, 583; S. C. 5 Barn. & Adol. 469.
      The same has been fully recognised in New Hampshire. Pritchard v. Atkinson, 4 N. Hamp. R. 1. So in Vermont. State v. Catlin, 3 Vermont R. 530; State v. Wilkinson, 2 id. 480; Pomeroy v. Mills, 3 id. 279; Abbott v. Mills, 3 id. 521. The principle of dedication of lands for highways, and for other public purposes, has frequently come under consideration in the Supreme Court of the United States, and it has received the full approbation and sanction of that court. City of Cincinnati v. White, 6 Peters, 431; M'Connell v. Lexington, 12 Wheat. 582, (6 Pet. Cond. R. 654;) Beatty v. Kurtz, 2 Peters, 566. See also Ward v. Folly, 2 Southard, 482; Galatian v. Gardner, 7 Johns. R. 106; Todd v. Rome, 2 Greenl. 55; Alden v. Murdock, 13 Mass. R. 258; Clark v. Mayo, 4 Call, 374; Conner v. New Albany, 1 Blackford’s (Ind.) R. 43.
      It would be well to inquire, whether cases may not arise, in which it will not only be convenient, but even necessary, to adopt the principle of dedication of a way as a part of the law of this State. It seems to have been adopted by our Court in the case of a bridge on the public highway. Springfield v. County Commissioners of Hampden, 10 Pick. 76. See also Commonwealth v. Charlestown, 1 Pick. 188. The dedication of a bridge appears to be but little removed in principle from the dedication of a way. A public bridge is a common highway. Woolrych on Ways, 195, (No. 11 Law Libr. 155.) See also Pritchard v. Atkinson, 4 N. Hamp. R. 13; State v. Campton, 2 N. Hamp. R. 513; Rex v. Devon, Ryan & Moody, 144. In Commonwealth v. Low, 3 Pick. 413, the Court appears to treat the question as still doubtful, whether or not we have adopted the principle of dedication of a highway. See Ex parte Miller, 4 Mass. R. 565; Commonwealth v. Sessions of Norfolk, 5 Mass. R. 435; Alden v. Murdock, 13 Mass. R. 258; Commonwealth v. Charlestown, 1 Pick. 188; Odiorne v. Wade, 5 Pick. 421; Emerson v. Wiley, 7 Pick. 68 and 10 Pick. 310.
      It is held in this State, that a town way cannot be acquired by dedication. Commonwealth v. Low, 3 Pick. 413. See also Jones v Andover, 9 Pick. 146; Todd v. Rome, 2 Greenl. 55; Rowell v. Montville, 4 Greenl. 270.
      On the subject of dedication of a bridge to the public, see Rex v. West Riding of Yorkshire, 5 Burr. 2570; S. C. 2 W. Bl. 685; Rex v. Northamptonshire, 2 Maule & Sel. 262; Rex v. Kent, id. 513, Rex v. West Riding, 2 East, 342; Rex v. Oxfordshire, 4 Barn. & Cressw. 194; Woolrych on Ways, 195 et seq. (No 11 Law Libr. 155.)
      In Stafford v. Coyney, 7 Barn. & Cressw 257, (14 Serg. & Lowber, 39,) it was thought by Bayley and Holroyd, Justices, that there might be a limited dedication of a way to the public. Littledale J. doubted the possibility of it. See also Rex v. Lloyd, 1 Campb. 260; Roberts v. Carr, ibid. 262, n. (b.) ; Rex v. Northamptonshire, 2 Maule & Sel. 262.
     
      
       See Potter v. Leeds & al., 1 Pick. 309. Reporter.
      
     
      
       A leading interrogatory, in a deposition taken when both parties are present, must be objected to at the time it is put to the witness, if at all. Sheeler v. Sheer, 3 Binney, 130; Strickler v. Todd, 10 Serg. & Rawle, 63; Woodman v. Coolbroth, 7 Greenl. 181. See Craddock v. Craddock, 3 Littell, 77; Mechanics' Bank of Alexandria v. Seton, 1 Peters, 307; Boardman v. Wood, 3 Vermont R. 570. Objections to the competency of a witness should be mack at the time of taking the deposition, if the party attends, and the objections are known to him. If the facts constituting the objection be not known at the time of taking the deposition, the objection may be made at the reading of it. United States v. One Case of Hair Pencils, 1 Paine’s C. C. R. 400 See Graves v. Walter, 5 Moore & Scott, 310.
     