Chapman, J.
The defendants admit, that the acts complained of, by the plaintiff, were done by them ; and justify, on the ground, that there was a public highway over the locus in quo. The question, then, is, whether the evidence offered by the defendants, was admissible to prove the existence of such highway.
1. Was the survey, or laying-out, of the committee of the •town in 1762, offered and admitted in evidence, admissible 2
It was inadmissible on two grounds :
First, it was not accompanied with any evidence, that any •-such committee was ever appointed. An execution is not admissible, without being accompanied with the judgment on •which it issued ; nor is the laying-out of a highway, by a committee appointed by the county court, without producing the -decree of the court, appointing them, as well as their acceptance of it.
This is a rule founded on the best good sense, for the judgment, if produced, might be a void one. The committee may [96] have exceeded their powers. The court may not have accepted their report. Every reason which could be urged in favour of the rule, as applicable to those cases, can, with equal force, he urged here. No such committee may ever have been appointed ; Or if they were, their powers may have been particularly limited, and they may have exceeded them ; or, lastly, the town may have refused to accept of such laying-out ; and the non-production of the record of their appointment, and the acceptance by the town, creates a strong presumption, that were it produced, it would operate against the defendants.
Secondly, had the record of their appointment and the acceptance of the laying-out been produced, it would not have varied the case. The town, in 1762, had no such power. It was given them by statute, in 1773.
But it is said, we ought to presume they then had such power. This would be to carry the doctrine of presumption to an unheard of length. Suppose the survey in question had been signed by as many constables or grand-jurors, nay, by as many individuals, acting in their private capacities ; upon the principle of presumption, as claimed in this case, we ought to presume, that there was a law in existence, at that time, which authorised their proceedings.
If I am thus far right, it would seem to be unnecessary to discuss the other points in the case ; since there must be a new trial, if the court erred in admitting the survey to be given in evidence.
It may not, however, be improper to observe, that verdicts and judgments, between other parties, may, in some cases, be given in evidence. In cases where they operate in rem—create a title, &c., they are admissible, on the same principle that conveyances, which transfer a title from one to another. Where a title to land is acquired, by the levy of an execution against A., the judgment is admissible in a trial in ejectment against B. ; and so would be a deed from A. to the plaintiff; and for the same reason. The plaintiff, in the one case, derives his title from the levy, and, in the other, by his deed. On this principle, the decisions of courts of admiralty are admissible : they transfer property. It is also true, they are sometimes admissible to prove the existence of a public highway ; but never, except where the party claims, by prescription ; and then, merely to corroborate the presumption of [97] there having been a grant. A user of sufficient length to create a presumption, must first be proved; and then, in aid of that user, the judgment &c. is admissible.
But when the grant itself is produced, (or, as in this case, the survey itself,) such evidence is wholly irrelevant. It is not admissible to give a construction to the grant; nor to make valid, that which, on the face of it, is invalid.
In this case, there has been a user of but six years, which creates no presumption in favour of the defendants. The user of what is called the equivalent highway, is wholly foreign to the subject. It conduces only to prove, that a highway was once laid out, in that place ; but certainly not that one has been laid out in a different one. As to the reservation by the proprietors ; I need only remark, that such a reservation gave no authority to the town.
I purposely avoid giving any opinion as to what length of time will be required to deprive the public of a right to a public highway, which has been shut up. It is a question of great importance, and attended with much difficulty. A user of twenty years, which, in England raises a presumption of a grant, is essentially different from a prescription. The latter is created by a user, of such length, that “ the memory of man runneth not to the contrary.” Persons acting for themselves, are presumed to be vigilant, in preventing encroachments being made on their property ; and it is therefore reasonable, that they should lose their rights by their own laches ; but it may be questionable, whether the public, who necessarily act by agents, who may be unfaithful, should be subject to the same penalties. I am not aware, that this question has ever been made before the Supreme Court.
Brainard and Bristol, Js. were of the same opinion.
Peters, J.
In trespass quare clausum fregit, the defendants justified under a public right of way, and the authority of the select men of Middletown ; and in support of their defence, offered in evidence, 1. A survey of a highway j laid out in 1762, over the locus in quo, by persons styling themselves a committee. 2. A verdict and judgment of the superior court, in 1813, in a similar action, for a similar trespass, in the same place, between this plaintiff and Calvin Kelsey, who justified under the same right, and the same authority. The court below ad[98] mitted this evidence; and the plaintiff now claims a new trial, because, 1. The survey is void. 2. The verdict was between other parties.
I concurred in the admission of this evidence on the circuit, and have not changed my opinion.
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Chapman, J.
The defendants admit, that the acts complained of, by the plaintiff, were done by them ; and justify, on the ground, that there was a public highway over the locus in quo. The question, then, is, whether the evidence offered by the defendants, was admissible to prove the existence of such highway.
1. Was the survey, or laying-out, of the committee of the •town in 1762, offered and admitted in evidence, admissible 2
It was inadmissible on two grounds :
First, it was not accompanied with any evidence, that any •-such committee was ever appointed. An execution is not admissible, without being accompanied with the judgment on •which it issued ; nor is the laying-out of a highway, by a committee appointed by the county court, without producing the -decree of the court, appointing them, as well as their acceptance of it.
This is a rule founded on the best good sense, for the judgment, if produced, might be a void one. The committee may [96] have exceeded their powers. The court may not have accepted their report. Every reason which could be urged in favour of the rule, as applicable to those cases, can, with equal force, he urged here. No such committee may ever have been appointed ; Or if they were, their powers may have been particularly limited, and they may have exceeded them ; or, lastly, the town may have refused to accept of such laying-out ; and the non-production of the record of their appointment, and the acceptance by the town, creates a strong presumption, that were it produced, it would operate against the defendants.
Secondly, had the record of their appointment and the acceptance of the laying-out been produced, it would not have varied the case. The town, in 1762, had no such power. It was given them by statute, in 1773.
But it is said, we ought to presume they then had such power. This would be to carry the doctrine of presumption to an unheard of length. Suppose the survey in question had been signed by as many constables or grand-jurors, nay, by as many individuals, acting in their private capacities ; upon the principle of presumption, as claimed in this case, we ought to presume, that there was a law in existence, at that time, which authorised their proceedings.
If I am thus far right, it would seem to be unnecessary to discuss the other points in the case ; since there must be a new trial, if the court erred in admitting the survey to be given in evidence.
It may not, however, be improper to observe, that verdicts and judgments, between other parties, may, in some cases, be given in evidence. In cases where they operate in rem—create a title, &c., they are admissible, on the same principle that conveyances, which transfer a title from one to another. Where a title to land is acquired, by the levy of an execution against A., the judgment is admissible in a trial in ejectment against B. ; and so would be a deed from A. to the plaintiff; and for the same reason. The plaintiff, in the one case, derives his title from the levy, and, in the other, by his deed. On this principle, the decisions of courts of admiralty are admissible : they transfer property. It is also true, they are sometimes admissible to prove the existence of a public highway ; but never, except where the party claims, by prescription ; and then, merely to corroborate the presumption of [97] there having been a grant. A user of sufficient length to create a presumption, must first be proved; and then, in aid of that user, the judgment &c. is admissible.
But when the grant itself is produced, (or, as in this case, the survey itself,) such evidence is wholly irrelevant. It is not admissible to give a construction to the grant; nor to make valid, that which, on the face of it, is invalid.
In this case, there has been a user of but six years, which creates no presumption in favour of the defendants. The user of what is called the equivalent highway, is wholly foreign to the subject. It conduces only to prove, that a highway was once laid out, in that place ; but certainly not that one has been laid out in a different one. As to the reservation by the proprietors ; I need only remark, that such a reservation gave no authority to the town.
I purposely avoid giving any opinion as to what length of time will be required to deprive the public of a right to a public highway, which has been shut up. It is a question of great importance, and attended with much difficulty. A user of twenty years, which, in England raises a presumption of a grant, is essentially different from a prescription. The latter is created by a user, of such length, that “ the memory of man runneth not to the contrary.” Persons acting for themselves, are presumed to be vigilant, in preventing encroachments being made on their property ; and it is therefore reasonable, that they should lose their rights by their own laches ; but it may be questionable, whether the public, who necessarily act by agents, who may be unfaithful, should be subject to the same penalties. I am not aware, that this question has ever been made before the Supreme Court.
Brainard and Bristol, Js. were of the same opinion.
Peters, J.
In trespass quare clausum fregit, the defendants justified under a public right of way, and the authority of the select men of Middletown ; and in support of their defence, offered in evidence, 1. A survey of a highway j laid out in 1762, over the locus in quo, by persons styling themselves a committee. 2. A verdict and judgment of the superior court, in 1813, in a similar action, for a similar trespass, in the same place, between this plaintiff and Calvin Kelsey, who justified under the same right, and the same authority. The court below ad[98] mitted this evidence; and the plaintiff now claims a new trial, because, 1. The survey is void. 2. The verdict was between other parties.
I concurred in the admission of this evidence on the circuit, and have not changed my opinion.
This survey is an ancient transaction, and has been acquiesced in, by the proprietor of the land, and those claiming under him, from its date to the plaintiff’s entry in 1806. This acquiescence appears by their furnishing an “ equivalent passage,” under an express and continued recognition of the public right, which is tantamount to possession, accompanying and following the deed. White v. Crawford, 10 Mass. Rep. 183. But the survey is said to he void for uncertainty. This I cf nnot discern ; as it locates the highway by metes and bounds, by courses and distances, in length and in breadth. “ Id certum est quod certum reddi potest.” It does not indeed appear by whom the committee were appointed ; but their act is recorded among the acts of the town and proprietors; and considering the manner in which our ancient highways were reserved, or left by the proprietors, or laid out by their committees, or by select men, or their committees, we are bound to say, “ that all shall be presumed, which would make this ancient impro-priation good,” according to the maxim, “ Omni a presumuntur solemniter esse acta :” for “ Ternpus est edax rerum ;” and “ God forbid, that ancient grants and acts should be drawn in question, although they cannot be shewn, which was at first necessary to the perfection of the thing.” 12 Rep. 5. Upon this principle, in Massachusetts, whence many of our laws and usages are derived, it has been decided, that records of proprietors are not admissible evidence of their recent transactions, without producing the warrant calling the meeting ; but in a transaction “ seventy years agone,” it is not required. Mass. Dig. 264. Monumoi v. Rogers, 1 Mass. Rep. 159. And copies of ancient proprietary grants are admissible, without shewing the meeting lawfully holden. Pitts v. Temple, 2 Mass. Rep. 538. To the suggestion that this survey was not admissible, unless proved to have been accepted by the town, it is a sufficient answer, that towns were first authorised to do this, in May, 1773.