William H. Copp vs. John Neal, 7 N.H. 275

Upham, J. delivered the opinion of the court. Where highways are laid out in pursuance of statutes, over the land of an individual, the public acquire only an easement, and the right of soil and freehold remains in the original owner. Perky vs. Chandler, 6 Mass. 454; Alden vs. Murdock, 13 Mass. 259; Stackpole & al. vs. Healey, 16 Mass. 33; Robbins vs. Borman & al., 1 Pick. 122; Makepeace vs. Worden & al., 1 N. H. R. 16.

There is nothing however to preclude a town from holding the title to land over which highways are laid, and they have frequently claimed the title in cases of ancient range-ways laid out by the original proprietors. By the statute of Feb. 8th, 1791, towns were authorised “ to discontinue any highways laid out by the order of the ‘ town, and to sell the land taken up in such highway, or ex- ‘ change the same for some other land where a highway may ‘ more conveniently be laid out and occupied,” N. H. Laws. ed. 1815, p. 336.

But where towns have no right of soil they can neither sell, or exchange land, over which highways are laid : and, in such cases, when highways are discon-' tinned, the title revests in the original owner. The possession of the owner of lands bordering on a highway may be considered a possession to the centre of the way, subject only to the easement belonging to the public, so that on a discontinuance by the town of the highway, and. a subsequent conveyance of said highway by the town, the owner of such lands would have a priority of possession over any grantee of the town.

The public can acquire no right of soil, by prescription, in a way, used as such merely, but only an easement; and their possession would be no evidence of title, or claim beyond an easement, unless their declarations or acts necessarily involved a claim to the soil. Styles vs. Curtis, 4 Day. 339; Peck vs. Smith, 1 Con. 103; Cortelyon vs. Van Brundt, 2 Johns. 357; 3 Kent's Com. 432; Grose vs. West, 7 Taun. 39; Chatham vs. Brainerd, 11 Con. 60; 1 Swift's Digest 108.

On these principles, the burthen of proof in this case would have rested upon the town, after a discontinuance of the road, to show their claim of title to the soil as against the original owner. But the original owner here, by his deed of 17th of July, 1822, conveyed his title to the defendant, and in his conveyance bounded the defendant on land voted by the town to the plaintiff. The grantor of the defendant, then, on the date of said deed, claimed neither title nor possession in the land now in question, but limited his conveyance by said land.

The defendant, therefore, holds nothing by deed ; and the question is, under such circumstances, whose claim of possession is best, — that of the plaintiff claiming under the town, or the possession of the defendant. The plaintiff claims by vote of the town, passed on the 16th of September, 1816, conveying the premises to him in exchange for other land granted to the town by the plaintiff for the purposes of a highway, and this disposition of the land was made in pursuance of an

article in the warrant for the town meeting. Immediately after this vote, the plaintiff removed the fence betwixt his land and the highway, and enclosed within his field that portion of the highway adjacent to his land, but did not enter on the portion of the highway adjoining Furnald’s land.

It seems to be well settled, that the votes of proprietors of common and undivided land in townships, are sufficient to make partition of land and to convey the same : and the same rule has in some instances been extended to towns ; and conveyances in this manner by them have been holden competent to pass the title, at least where possession has been taken in conformity to the vote. Springfield vs. Miller, 12 Mass. 415; Adams vs. Frothingham, 3 Mass. 353; Codman & al. vs. Winslow, 10 Mass. 147; Coburn vs. Ellenwood, 4 N. H. R. 99. There can be no doubt but such a vote constitutes color of title.

The entry of the plaintiff upon the premises was by virtue of the vote of the town : but his actual occupation extended only to a portion of the highway. There was no occupation of the highway adjoining Furnald’s land. But Furnald claimed no right to it, and conveyed none to the defendant. The defendant’s claim of possession is, therefore, a mere naked claim, without color of title, and is subsequent to the plaintiff’s entry under the vote of the town. The plaintiff having entered upon the land must be presumed as entering claiming according to his title. Proprietors of the Kennebeck Purchase vs.

Springer, A Mass. 416; Jackson vs. Wheat, 18 Johns. 40; Riley vs. Jameson, 3 N. H. R. 27. The circumstance that it was not consistent with his convenience at the time actually to occupy but a portion of the premises would not debar him from the legal presumption attending his entry, which would be coextensive with his title. The plaintiff’s possession, then, with color of title, extends to the whole highway, and is prior to the merely naked possession of the defendant. He is, therefore, entitled to recover, and there should be Judgment on the verdict for the plaintiff.