Holman, J.
We learn from the record in this case, that the president and trustees of jYeus-Albany commenced an action of trespass in the Circuit Court against Conner; in which issue was joined on the plea of not guilty, and a verdict and judgment were rendered for the plaintiffs. • The only evidence of trespass was that of digging up the soil, so as to form a road across one of the streets in said town. On this evidence the Circuit Court instructed the jury, that the president and trustees of the town of New-Albany, bad a right to maintain the action by virtue of the qualified possession which, bylaw, they had in the streets of the town. To which opinion of the Court Conner excepted; and. [89] which opinion is the only error complained of in the case. A slight attention to the nature of a public street, and an examination of the powers of a town corporate, will enable us to determine this question. A street in a town is a public highway. It is a subject of common use, and nót of exclusive possession; an incorporeal hereditament, in which all persons possess equal right, the right of passing over it; and is, in its nature, incapable of being reduced into possession. But it is a subject of government ; and the government of it is, by the act regulating the incorporation of.towns, placed in the hands ofthe corporation (1). They have the power to keep it in repair, to remove nuisances, &c.; hut this power is no more than a supervisor possesses over a common highway, and is certainly of a very different nature from a possession either absolute or qualified. Consequently, no possessory right exists in the corporation by which the action can he supported. See Conner v. The President and Trustees of New-Albany. Nov. term, 1819 (2). Works of use orornament, erected in the streets by the corporation, are of a (UPerent nature, and depend on different principles; and, consequently, present.no argumeñt which can affect this case. It follows, of course, that the opinion of the Circuit Court is incorrect.
Melson, Hurst, and Moore, for the plaintiff.
Dewey and Howk, for the defendants.
Per Curiam.
The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.
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Holman, J.
We learn from the record in this case, that the president and trustees of jYeus-Albany commenced an action of trespass in the Circuit Court against Conner; in which issue was joined on the plea of not guilty, and a verdict and judgment were rendered for the plaintiffs. • The only evidence of trespass was that of digging up the soil, so as to form a road across one of the streets in said town. On this evidence the Circuit Court instructed the jury, that the president and trustees of the town of New-Albany, bad a right to maintain the action by virtue of the qualified possession which, bylaw, they had in the streets of the town. To which opinion of the Court Conner excepted; and. [89] which opinion is the only error complained of in the case. A slight attention to the nature of a public street, and an examination of the powers of a town corporate, will enable us to determine this question. A street in a town is a public highway. It is a subject of common use, and nót of exclusive possession; an incorporeal hereditament, in which all persons possess equal right, the right of passing over it; and is, in its nature, incapable of being reduced into possession. But it is a subject of government ; and the government of it is, by the act regulating the incorporation of.towns, placed in the hands ofthe corporation (1). They have the power to keep it in repair, to remove nuisances, &c.; hut this power is no more than a supervisor possesses over a common highway, and is certainly of a very different nature from a possession either absolute or qualified. Consequently, no possessory right exists in the corporation by which the action can he supported. See Conner v. The President and Trustees of New-Albany. Nov. term, 1819 (2). Works of use orornament, erected in the streets by the corporation, are of a (UPerent nature, and depend on different principles; and, consequently, present.no argumeñt which can affect this case. It follows, of course, that the opinion of the Circuit Court is incorrect.
Melson, Hurst, and Moore, for the plaintiff.
Dewey and Howk, for the defendants.
Per Curiam.
The judgment is reversed, and the verdict set aside, with costs. Cause remanded, &c.
In the case in the text, the president and trustees of the town, had neither the general property,, nor the actual possession, of the locus in quo. The fee [91] of the land, over which a highway is dedicated to the public, or established by law, continues in the original proprietor. The public acquire no more than a right of way, with the privileges incident to that right. The enjoyment of the land, subject to this easement, belongs exclusively to the former owner. He has the right to all mines, quarries, fee., not incompatible with the public right of way. Jackson v. Hathaway, 15 Johns. R. 447. He may maintain trespass q. c. f. for any exclusive possession of the soil by another. Lade v. Shepherd, 2 Strange, 1004. — Cortelyou v. Van Brundt, 2 Johns. R. 357, 363. — 3 Stark. Ev. 1437. He may support ejectment; but the recovery of the land, and the possession given by the sheriff, will be subject to the public easement. Goodtitle v. Alker, 1 Burr. 133, 145. — Jackson v. Hathaway, supra. — Adams on Ejectment, 18. It is held, however, in a late nisi piius case, that the owner of the soil cannot recover in ejectment against a person for setting up a stall in a street, the remedy being trespass for disturbing the soil. Doe v. Cowley, 1 Carr, and Payne, 123. For setting up a stall in a market, trespass q. c. f. lies by the owner of the soil. The Mayor, &c. of Northampton v. Ward, 2 Str. 1238. S. C. 1 Wils. 107. Vide also The Mayor, See of Norwich v. Swan, 2 Bl. B. 1116.