Inhabitants of Vassalborough v. Somerset & Kennebec Rail Road Co. , 43 Me. 337 ( 1857 )

Tenney, C. J.

This being an action of trespass upon land, in order to be successful therein, the plaintiffs must show either title or possession.

No paper evidence of title was introduced, and none of the ordinary character is pretended to have existed. But it appears that at a special meeting of the inhabitants of Vassalboro’, holden on April 6, 1802, under an article in a warrant, to see if the town will relinquish their right to any part of the eight rod allowance, on lot No. 63, in the first range of lots, to Edward Sturgis, as a compensation for land had of said Sturgis on said lot No. 63, for a road or a landing, or act thereon, as they may think proper, it was voted to relinquish to Edward Sturgis two rods of the eight rod allowance, joining the north line of No. 63, from the county road to the east end of the lot. The case states that the piece of land supposed to have been obtained by the foregoing vote, from Edward Sturgis, was one acre, lying on the bank of the river, adjoining the south line of said eight rod allowance ; and that acre has been used as a landing place from 1802 to 1843.

No evidence was introduced to show the mode in which the town “ had the land of said Sturgis;” and such language used in the warrant for a town meeting of the plaintiffs, and the vote passed thereon, cannot be treated as sufficient proof of title in them.

It is very clear upon the authority of Bethun v. Turner, 1 Greenl., 111; Littlefield v. Maxfield, 31 Maine R., 134; and State v. Wilson, Maine R. (not yet published,) and the cases therein cited, that no title has been acquired by the plaintiffs under any possession, which the case finds, to have been in them.

Another question involved is, whether this action can be maintained for the obstruction by the defendants of the passage way from the county road to the river, upon the assumption that it was legally constituted a road in 1802, and afterwards in 1843.

The title to the land covered by the road is in the original owner, his heirs or assigns, subject to the public easement, which, according to the facts relied upon by the plaintiffs has been impaired, and perhaps for the present destroyed, by the defendants. In the case of Calais v. Dyer, 7 Greenl., 155, Mellen, C. J., in delivering the opinion of the court, says, in relation to a town road, “ The town certainly owns no more than an easement; and as a town road is as much a public road as a county road is, for all the purposes of traveling and use, the consequence is, that the easement is a public one; and it cannot be considered in a legal point of view as the town’s easement or property.” In harmony with the principle just stated, is the case of Andover v. Sutton and als., 12 Met., 182, and also that of Freedom v. Weed, 40 Maine R., 383.

The foundation of the suit having failed, it is unnecessary to consider other questions presented in the argument.

Plaintiffs nonsuit.