¶1The plaintiff is entitled to maintain his action unless it is made to appear either that “ Crossett Avenue ” had become a public highway; or that the defendant had acquired a private easement, or right to use the avenue as a way, either personal to himself,- or appurtenant to his land.
¶21. It had not become a public highway by dedication, because it had never been laid out and established in accordance with the requirements of St. 1846, c. 203; and previously to 1846 it had not the character of a thoroughfare, and there was no evi*303dence to show that it was intended as such, or was assented to by the town or adopted by the public generally as a street. Bowers v. Suffolk Manufacturing Co. 4 Cush. 332. Morse v. Stocker, 1 Allen, 150. Durgin v. Lowell, 3 Allen, 398. The case finds that, from October 1845, or soon after, the avenue, including the sidewalk built upon the land which is now the defendant’s, was used without obstruction as a public street 14 by the residents therein and by all others having occasion.” But the facts show a sufficient reason for its use in that manner, in the accommodation required for such residents, and in the apparent purpose for which the lots abutting on the avenue were held. There is nothing to show a purpose on the part of the owner of the soil to surrender its control to the public.
¶3Neither is there evidence to establish .a highway by prescription. There was no passage through to the east until 1850. The abutters were entitled, by the contracts under which they became abutters, to have the avenue kept open for their benefit and use. The license, which would result .therefrom by implication to “ others having occasion,” would exclude the supposition that the use was of an adverse character, such as would be requisite to establish a public way by prescription.
¶42. The deeds of land bounding on “ Crossett Avenue,” given by Crossett and by the plaintiff, clearly confer a private right of way upon all who can derive title under any of those conveyances. But neither the defendant nor his grantor ever acquired any right under those deeds. As against them, neither Crossett nor the plaintiff could be prevented from exercising exclusive control of the soil of the avenue, by reason of anything in the various deeds offered by the defendant in evidence.
¶5The defendant does not establish any legal claim to the use of the avenue by his own contribution thereto in allowing a narrow strip of his own land to remain as a part of it, and in filling and grading that part of the open space. He did it for his own convenience, and without any contract, express or implied, with the plaintiff. The previous use of that strip by Crossett was simply permissive, or by trespass, and not by virtue of any contract or arrangement which could work a mutual estoppel ira pais.
¶6*304The evidence utterly fails to show any private right by prescription in the defendant or his grantor. On the contrary, the case finds expressly that while the defendant occupied the land for twelve or thirteen years, under a lease, before he purchased it in 1863, “ he used to get on to the rear of his lot from Bush’s land adjoining it on the south,” that is, upon the opposite side from “ Crossett Avenue.” And there is no evidence of any use made of the avenue, by the defendant or his grantor, in connection with the defendant’s land or otherwise, distinct from the general use by the public.
¶7According to the terms of the reservation, the verdict must therefore be set aside, and
¶8Judgment rendered for the plaintiff for nominal damages.