Walter Folger versus Benjamin Worth et al., 19 Pick. 108

Shaw C. J. delivered the opinion of the Court. The .statute which was in force at the time of the alleged trespass, was St. 1834, c. 184, § 4 ; to which the Revised Statutes, c. 19, § 22, substantially conform.. It provides, that the field drivers are severally authorized and required to take up, at any time, any swine, sheep, horses, &c. going at large in the public highways or town-ways, or on any common and unimproved lands, and not under the care of a keeper, and restrain them in the town pound ; and the only question is, whether there are or can be any highways in Nantucket.

Indeed we do not perceive that it would aid the plaintiff mvch to show, that the soil of streets and highways remains in the proprietors of the common and undivided lands, inasmuch as by the statute cited, sheep are equally liable to be taken up and impounded which are found going at large on “ common and unimproved lands ” ; though it would not be the precise form of justification relied upon in this case. But we cannot perceive in any of the documents relied on, that the lands in Nantucket are held upon any different tenure, than those of other lands in the Commonwealth.

The early settlers, in order the better and more effectually to secure their title, took deeds of the Indians, and of various other persons and authorities, who had any color of title. The island seems to have been purchased by the Mayhews of James Forrest, agent of the Earl of Sterling, afterwards confirmed by a deed of Francis Lovelace, Governor of New York under His Highness, James, Duke of York, in March 1671, and again by deed of Thomas Dongan, Governor of New York, in June 1684.

There is nothing peculiar in these documents ; they are in form confirmations of the property to the proprietors, with the privileges and immunities of a town. By the Province charter of 1692, the island was included in the jurisdiction of Massachusetts. But in whatever view these early deeds and patents can be considered, they could do nothing more in the way of property, than to vest in the proprietors a title in fee simple, in common or in severalty.

But whether held in one form or the other, there is nothing to prevent the public from having highways over them, either by grant, or laying out according to statute. It appears by the facts that there is no record of the laying out of highways, yet that the streets of the town have been used as highways, from time immemorial. It is now, we think, too late to contend, that the existence of a highway cannot be proved by immemorial usage. Commonwealth v. Low, 3 Pick. 408; Reed v. Northfield, 13 Pick. 94; Stedman v. Southbridge, 17 Pick. 162.

Indeed, but for this principle, there would be no highways in Nantucket, and a citizen of the Commonwealth or any other State in the Union, passing through the streets of Nantucket, upon his most important avocations, would be a trespasser ; it being found that no highways have been formally laid out conformably to the statute. It is not easy to perceive how the judge, who tried the plaintiff’s cause, or the counsel who appeared for him, if not an owner of one or more sheeps-commons on the island, could lawfully go from the landing place to the court house.

Unless highways can be shown and proved by long use and enjoyment, the inhabitants of the island and the public at large, would be deprived of their most valuable privileges. But we are satisfied a right by prescription, or by use and enjoyment, may be as well established, as by record proof of laying out. There is in this view no conflict between the rights of the proprietors and those of the public ; the proprietors will still be deemed owners of the fee, subject to a perpetual easement for the public.

There may indeed a difficult question of fact arise, as to which and how many of the various tracks, which traverse the island, have been so much, so long and so uninterruptedly used, as to show them to be highways ; but no doubt can exist, as to the streets of the town, upon which houses have been long standing, and which are necessary to afford access to such houses.

And probably no real practical difficulty will arise as to other roads through the island ; and if there should, the laws of the Commonwealth are as open to them, as to all other citizens, conformably to which, all highways of common convenience and necessity, may be duly laid out. Plaintiff nonsuit