
    Cornelius G. Fenner vs. Lyman Sheldon.
    Land was conveyed to F* in 1843, by a deed bounding it, on one side, upon a town road laid out in 1734, over part of which road a turnpike was laid out in 1826, leaving that part of the road, which was next to F.’s land, still a town road: A stone wall had been erected between the town road and F.’s land, and had been kept up for more than fifty years: In 1829, the town road was discontinued: In 1843, S., without any title to the land between the turnpike and F.’s land, erected a building thereon, and F. brought an action against him for a disturbance. Held, that the action could not be maintained
    Trespass upon the case. The first count in the plain tiff's declaration alleged that he, before the committing of the grievances thereinafter set forth, was seized and possessed of a tract of land in Webster, bounded on the north by a highway ; and that he, “ and those under whom he claimed title, had, from time immemorial, had a right to pass -and repass over that part of the highway adjoining his land on the north, and a right to have the same remain free and unobstructed; ” and that it was necessary to the proper use, benefit and enjoyment of his said land, that said highway should remain open, free and unobstructed; yet that the defendant, on the 1st of August 1840, caused to be erected a building, used as a shop, upon that part of the highway adjoining the plaintiff’s said land, and there kept and continued the said building till the day of the purchase of the plaintiff’s writ; whereby the plaintiff was annoyed and incommoded in the use and enjoyment of his adjoining land, &c.
    The second count was similar to the first, except that it alleged that the plaintiff’s land was bounded, on the north, by an unenclosed piece of land lying between his land and the highway now or formerly known as the Central Turnpike.
    At the trial before Hubbard, J. the defendant admitted that the plaintiff was seized in fee of the land described as his, in his counts, and bounding north on the said highway, or on the said unenclosed piece of land ; and the plaintiff introduced numerous deeds, by which his said land had been many times conveyed, between the year 1734 and June 28th 1843, on which last day it was conveyed to him by Levi Salisbury Some of these deeds bounded the plaintiff’s land on the highway.
    The plaintiff then introduced evidence to show that, for more than fifty years before the year 1840, the land adjoining his land upon the north had remained open and unenclosed, and that his land had been separated therefrom hy a stone wall; that until the Central Turnpike was laid out, in 1826, the usual travelled road was over the said unenclosed land adjoining the plaintiff’s land on the north; that said turnpike was laid out, passing partly over the said travelled road and partly to the north of said road, leaving a narrow strip of the road between the said turnpike and the land of the plaintiff.
    It was admitted, that in August 1843, the defendant erected, or caused to be erected, a building on the aforesaid strip of land, and that said building remained there at the time of the commencement of this action.
    The plaintiff also introduced evidence to show that his land, next adjoining said old road, was very valuable for building lots, if said road could remain open and unobstructed, and that its value was greatly diminished by the erection of said building by the defendant.
    The defendant did not rely on any title besides that derived from his possession; and he offered no evidence of possession prior to the year 1843. He introduced the record of the laying out of said old highway on the 12th of March 1734, and of its discontinuance, by a vote of the town, on the 5th of September 1829. He also introduced evidence to show that, since the discontinuance of said highway, no part of it, which was not included in the Central Turnpike, had been used for travel, except a small portion at the north east corner, and east of the land on which his shop was erected ; and that, “for a number of years past, that part of the highway not included in said turnpike had been used for throwing on timber and other articles, by different individuals.”
    The plaintiff introduced no evidence that he had used said unenclosed strip of land, for travel or otherwise; there being no opening', through his stone wall, to the said strip.
    
      Upon the foregoing evidence, the judge ruled that the action could not be maintained, and a nonsuit was entered, subject to the opinion of the whole court.
    
      C. Allen & F. H. Dewey, for the plaintiff.
    1. The right to have the land in question remain open and unenclosed was appurtenant to the land now owned by the plaintiff, and that appurtenance passed to him without express words, Kent v. Waite, 10 Pick. 141. O'Linda v. Lothrop, 21 Pick. 292.
    2. Neither the original grantor, nor his heirs, have any right to enclose the land; having bounded the plaintiff’s grantor on the road. Parker v. Smith, 17 Mass. 415. Emerson v. Wiley, 10 Pick. 317. Parker v. Inhabitants of Framingham, 8 Met. 260. A fortiori, a stranger and trespasser, like the defendant, cannot enclose it.
    3. A dedication of the land, by the original owner, may be presumed; no claimant appearing. Coolidge v. Learned, 8 Pick. 504, 512. No particular time is necessary for evidence of dedication, nor any special and formal act. Woodyer v. Hadden, 5 Taunt. 137. Rugby Charity v. Merryweather, 11 East, 375, 376, note. Hobbs v. Inhabitants of Lowell, 19 Pick. 405. Inhabitants of Springfield v. County Commissioners, 10 Pick. 67. Pritchard v. Atkinson, 4 N. Hamp. 11. City of Cincinnati v. White, 6 Pet. 438. 2 Greenl. on Ev. § 662.
    4. Discontinuance of a way does not deprive a grantee :i the adjoining land, or of the use of it. Alden v. Murdock, 13 Mass. 256. A right is not lost by forty years’ non user. Arnold v. Stevens, 24 Pick. 106. See also Story v. Odin, 12 Mass. 159. Grant v. Chase, 17 Mass. 446.
    
      Bacon, for the defendant.
    The argument for the plaintiff assumes that this is a question of title; but it is only a question of easement, that is, his right to have the land remain open. His declaration does not aver that he ever enjoyed a right of way; and the evidence shows that there has always been a stone wall between his land and the land in question. When the vav was discontinued, the land over which it was laid reverted to the owner, discharged of the incumbrance. Perley v. Chandler, 6 Mass. 456. If so, how has the plaintiff any easement ? See Rev. Sts. c. 60, § 27.
    A right derived from dedication must be from a dedication to some public use.
    The case in 8 Met. 260 went upon the ground that the land over which the road was laid was owned hy the proprietor of the adjoining land. In the case at bar, there is no evidence that the plaintiff derives title from the owner of the land on which the defendant has erected a shop.
    It is to be presumed that the plaintiff or his grantors received or waived damages, when the road was discontinued.
    Even if the road were not discontinued, or were dedicated as a Avay since its discontinuance, this action for a disturbance could not be maintained. The plaintiff should have brought trespass or a writ of entry. Robbins v. Borman, 1 Pick. 122. 6 Mass. ubi sup.
    
   Shaw, C. J.

It appears to us that this nonsuit was right, The plaintiff must recover upon the strength of his own title and not upon the want of any title in the defendant.

1. The action is trespass upon the case, for a disturbance, In his first count, the plaintiff sets out a good title, to wit, OAvnership in fee of a tract of land de'scribed, bounding on a highway, and the erection of a building on the hightvay by the defendant, adjoining the plaintiff’s land, by which he receives a special and particular damage. But the evidence Avholly fails to support it. It was laid out as a town way, in 1734, and was discontinued by vote of the town, September 5th 1829. The town had authority to discontinue the way by Rev. Sts. c. 24, § 70, which follow, in this respect, St. 1785, c. 75, § 7, which was in force when this road was discontinued. If the plaintiff sustained damage in his land by the discontinuance, he, or his predecessor, then owner of the land, was entitled to damages. St. 1785, c. 75, § 7. The conclusion of law therefore is, that the plaintiff, or the former OAvner of this land, has received a full indemnity for its discontinuance, or that he sustained no damage thereby. This town way being discontinued, the plaintiff stands on the same footing as if it had never existed, and his main averment of the existence of such a way, and of the bounding of his land on it, is negatived. Had sufficient time elapsed to raise a presumption of a right of way by user, it would not aid the plaintiff, because the case finds that he has never used the strip of land in question as a way, and that his land has been separated from it by a stone wall.

2. ‘ The second count does not aver that the strip of land, on which the defendant has erected his building, was a highway or town way, but only that it was a narrow strip of land lying between the plaintiff’s land and the Central Turnpike This averment may be true; but it would be quite consistent with the fact, that it was private property; and then the erection by the defendant was not injurious to the plaintiff, unless he can establish a right to some easement in or over it. Even if such erection was a trespass upon the owner, it would not aid the plaintiff to maintain an action. If it was a nuisance to the plaintiff, he could maintain an action for the disturbance against the builder, whether he was the owner of the soil, or a trespasser upon the owner; but if it was not a disturbance of any easement of the plaintiff, then he could maintain no action against either the owner or a stranger. But the plaintiff shows no right to any such easement; not to a right of way; for he has never used it for passing or repassing to his land; nor for air and light; for he has no ancient or other house or building on his land, to enjoy them.

3. It was urged, that as some of the deeds under which the plaintiff claims, bounded the land on a way, it may be presumed that the grantor was the owner of the soil under the highway ; so that when it was discontinued, the plaintiff would have a right, as against such grantor and all claiming under him, still to use the land as a way, upon the discontinuance of the public easement. Parker v. Inhabitants of Framingham, 8 Met. 267. This argument would be well founded, if it were established by proof, as in the case cited, that such grantor was the owner of the soil of the Avay. Such a fact can no more be presumed without proof, than any other fact necessary to give effect to words of grant, estoppel, or warranty, express or" implied, contained in a deed.

4. If the plaintiff would contend, from the terms of his deeds, and on other proof, that the town way was laid over the land of his predecessor, in 1734, and that, by the terms of his deeds, he held adjilum vim, to the centre of the way, so that, when the way Avas discontinued, the land, to that extent, was his, discharged of the incumbrance, his remedy would not be an action upon the case for a disturbance of an easement, but a real action on his title in fee.

Nonsuit to stand  