Pbentiss, J.
pronounced the opinion of the court. — It appears to be a well established doctrine of the common law, that a highway may be created by dedication of it to the public by the owner of the soil, and the use of it by the public as such ; and in such case, the public acquire a right or easement, which the owner cannot lawfully interrupt, though the soil and freehold remain in him. (Lade vs. Shepard, 2 Stra. 1004.) The principle is, that if the way is of public convenience, and has been used by the public without interruption, a presumption arises of their right, and a dedication of it to them by the owner may be inferred. In Rex vs. Lloyd, 1 Camp. Cas. 260, Lord Ellenborough held, that a private individual who builds a street, or otherwise opens a thoroughfare to the public, without any visible marks of exclusion >or prohibition to persons using it, will, after a great number of [486]*486years> considered as having dedicated it to the public, and it becomes a highway, to obstruct which is an indictable offencel 1° the case of the Rugby Charity vs. Merryweather, 11 East, 375, n., was held by lord Kenyon, that permitting the public at large to have the free use of a way, or street, for six years, was quite a sufficient time for presuming a dedication of the way to the public, and after that length of time it was too late for the owners of the soil to assert their right. The principle, that the public may acquire an easement in this manner, was fully recognized in the case of Woodyer vs. Hadden, 5 Taunt. 126, though the case was decided against the right of the public, upon the ground, that there was no evidence from which a dedication to the public could be inferred. It was observed by Chambre, J., that a dedication is not, like a grant, presumed from length of time only, but may, if the act of dedication be unequivocal, take place immediately ; as if a man builds a double row of houses, opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway. Hammond considers the doctrine as resting upon the principle of general utility, and very justly remarks, that the owner, after permitting the public to have the free and unmolested use of a way, ought not to be allowed to contest the right of the public, who may have embarked in projects, and formed expectations, upon the strength of the appearances he held out to them, which it would be ruinous to disappoint. (Ham. N. P. 194.) Without deciding what length of time is necessary to create a right in the public, we think we may safely say, that where the public have had the use and enjoyment of a- way for fifteen years, or more, they have acquired a right, which cannot be disturbed. It is a rule established in analogy to our statute of limitations, that an exclusive use, for fifteen years, affords a conclusive presumption, in favour of an individual, of a right of way over the soil of another, of a right to the enjoyment of water, or to possess lights unobstructed, and of various other incorporeal rights ; and it seems quite consistent to say, that the use and enjoyment of a common way for the same length of time, should, at least, be sufficient to give an easement to the public. We are not required in the present case to extend the doctrine further than this ; and we do not mean to decide, that a shorter period would not, under circumstances, afford sufficient ground on which to found a presumption of right in favour of the public.
It was a point much discussed in the argument, whether away, thus created, imposed upon the town, in which it was situate, the charge of keeping it in repair. In the case of the King vs. the [487]*487inhabitants of St. Benedict, 4 Barn. and Ald. 447, Bailey, J. said, that be did not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, that the parish is,therefore,bound to repair ; but he thought, as the parish had no power to prevent the opening of a road, or to obstruct the public use of it, there ought to be, in addition, evidence of an acquiescence by the parish in the dedication. If a way is of public convenience, and has been used as a common! highway a sufficient length of time to create a right in the public, and an acquiescence by the town may be inferred from repairs actually made by them,or otherwise, we do not see why they are not legally bound to repair it, as far as the convenience of passing and the accommodation of the public may require. But if it should be held, that the obligation of the town to repair, extends only to such ways as are laid out and established according to the provisions of the statutes, it would only follow, that a public way may exist without any such obligation on the town. A highway, according to the common law, is a place in which all the people have' a right to pass. A common street and public highway are the same, and any way, which is common to all the people, may be called a highway. A navigable river may be termed a common highway, and any obstruction to the passage upon it may be redressed by indictment. (Hawk. b. l.c. 76. s. 1.—2 Chit. C. L. 233.) In Shaw vs. Crawford, 10 John. Rep. 237, it was held, that a stream, though the fee of it belonged to the owners of the adjoining banks and it was private property, having been used by the public, for the purpose of rafting down boards and timber, for a great length of time, had become a public highway, and any obstruction of it was a public nuisance. The court said, that such a usage would, of itself, grow into a public right, and especially, where the public interest, or public convenience, was essentially promoted. If a way is used for passing and repassing, and is common to all the people, it is a highway, whether it is called a road, street, or public square. In the case before us, the locus in quo is alleged to be a certain public square and common highway, according to the precedent in 2 Chit. C. L. 389 i and the evidence was, that it was laid out and opened atan early period, and has been’used by the public as a common highway for more than thirty years. It is situate in the centre of a populous and flourishing village, and forms a large and commodious street, communicating with roads leading in various directions into different parts of the county. Expensive buildings are erected around it, some of which are for public use, sueh as an academy, several churches, and a court house for the [488]*488county j and having been open for so long a space óf time (o' ili& public, they have acquired a right in it which cannot be interrupted. It is understood that in many villages in the state, and particularly in some of the county towns, where it is usual for large assemblages of people to collect at Court, there are spacious streets, for the use and accommodation of the public,- thrown out in the same manner, and enjoyed under the same right, as this 3 ánd to establish a different doctrine from that already laid down, would not only be prejudicial to the public, but produce disappointment and ruin to individuals.
If the locus in quo is a highway, it is a fi ght or franchise belonging to all the people, and ail indictment will lie for any obstruction of it. It is a clear principle of the common law, that every unauthorized obstruction of a highway is an indictable offence. In the case of The King vs.
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Pbentiss, J.
pronounced the opinion of the court. — It appears to be a well established doctrine of the common law, that a highway may be created by dedication of it to the public by the owner of the soil, and the use of it by the public as such ; and in such case, the public acquire a right or easement, which the owner cannot lawfully interrupt, though the soil and freehold remain in him. (Lade vs. Shepard, 2 Stra. 1004.) The principle is, that if the way is of public convenience, and has been used by the public without interruption, a presumption arises of their right, and a dedication of it to them by the owner may be inferred. In Rex vs. Lloyd, 1 Camp. Cas. 260, Lord Ellenborough held, that a private individual who builds a street, or otherwise opens a thoroughfare to the public, without any visible marks of exclusion >or prohibition to persons using it, will, after a great number of [486]*486years> considered as having dedicated it to the public, and it becomes a highway, to obstruct which is an indictable offencel 1° the case of the Rugby Charity vs. Merryweather, 11 East, 375, n., was held by lord Kenyon, that permitting the public at large to have the free use of a way, or street, for six years, was quite a sufficient time for presuming a dedication of the way to the public, and after that length of time it was too late for the owners of the soil to assert their right. The principle, that the public may acquire an easement in this manner, was fully recognized in the case of Woodyer vs. Hadden, 5 Taunt. 126, though the case was decided against the right of the public, upon the ground, that there was no evidence from which a dedication to the public could be inferred. It was observed by Chambre, J., that a dedication is not, like a grant, presumed from length of time only, but may, if the act of dedication be unequivocal, take place immediately ; as if a man builds a double row of houses, opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway. Hammond considers the doctrine as resting upon the principle of general utility, and very justly remarks, that the owner, after permitting the public to have the free and unmolested use of a way, ought not to be allowed to contest the right of the public, who may have embarked in projects, and formed expectations, upon the strength of the appearances he held out to them, which it would be ruinous to disappoint. (Ham. N. P. 194.) Without deciding what length of time is necessary to create a right in the public, we think we may safely say, that where the public have had the use and enjoyment of a- way for fifteen years, or more, they have acquired a right, which cannot be disturbed. It is a rule established in analogy to our statute of limitations, that an exclusive use, for fifteen years, affords a conclusive presumption, in favour of an individual, of a right of way over the soil of another, of a right to the enjoyment of water, or to possess lights unobstructed, and of various other incorporeal rights ; and it seems quite consistent to say, that the use and enjoyment of a common way for the same length of time, should, at least, be sufficient to give an easement to the public. We are not required in the present case to extend the doctrine further than this ; and we do not mean to decide, that a shorter period would not, under circumstances, afford sufficient ground on which to found a presumption of right in favour of the public.
It was a point much discussed in the argument, whether away, thus created, imposed upon the town, in which it was situate, the charge of keeping it in repair. In the case of the King vs. the [487]*487inhabitants of St. Benedict, 4 Barn. and Ald. 447, Bailey, J. said, that be did not accede to the doctrine, that because there is a dedication of the road by the owner of the soil, and the public use it, that the parish is,therefore,bound to repair ; but he thought, as the parish had no power to prevent the opening of a road, or to obstruct the public use of it, there ought to be, in addition, evidence of an acquiescence by the parish in the dedication. If a way is of public convenience, and has been used as a common! highway a sufficient length of time to create a right in the public, and an acquiescence by the town may be inferred from repairs actually made by them,or otherwise, we do not see why they are not legally bound to repair it, as far as the convenience of passing and the accommodation of the public may require. But if it should be held, that the obligation of the town to repair, extends only to such ways as are laid out and established according to the provisions of the statutes, it would only follow, that a public way may exist without any such obligation on the town. A highway, according to the common law, is a place in which all the people have' a right to pass. A common street and public highway are the same, and any way, which is common to all the people, may be called a highway. A navigable river may be termed a common highway, and any obstruction to the passage upon it may be redressed by indictment. (Hawk. b. l.c. 76. s. 1.—2 Chit. C. L. 233.) In Shaw vs. Crawford, 10 John. Rep. 237, it was held, that a stream, though the fee of it belonged to the owners of the adjoining banks and it was private property, having been used by the public, for the purpose of rafting down boards and timber, for a great length of time, had become a public highway, and any obstruction of it was a public nuisance. The court said, that such a usage would, of itself, grow into a public right, and especially, where the public interest, or public convenience, was essentially promoted. If a way is used for passing and repassing, and is common to all the people, it is a highway, whether it is called a road, street, or public square. In the case before us, the locus in quo is alleged to be a certain public square and common highway, according to the precedent in 2 Chit. C. L. 389 i and the evidence was, that it was laid out and opened atan early period, and has been’used by the public as a common highway for more than thirty years. It is situate in the centre of a populous and flourishing village, and forms a large and commodious street, communicating with roads leading in various directions into different parts of the county. Expensive buildings are erected around it, some of which are for public use, sueh as an academy, several churches, and a court house for the [488]*488county j and having been open for so long a space óf time (o' ili& public, they have acquired a right in it which cannot be interrupted. It is understood that in many villages in the state, and particularly in some of the county towns, where it is usual for large assemblages of people to collect at Court, there are spacious streets, for the use and accommodation of the public,- thrown out in the same manner, and enjoyed under the same right, as this 3 ánd to establish a different doctrine from that already laid down, would not only be prejudicial to the public, but produce disappointment and ruin to individuals.
If the locus in quo is a highway, it is a fi ght or franchise belonging to all the people, and ail indictment will lie for any obstruction of it. It is a clear principle of the common law, that every unauthorized obstruction of a highway is an indictable offence. In the case of The King vs. Russell, 6 East, 427, which was an indictment for a nuisance in a public street and highway, by obstructing the same, the court said, that the primary object of the street was for the free passage of the public, and any thing which impeded that free passage, without necessity, was a nuisance. The provision in the statute which imposes a fine not exceeding seven dollars, for placing any obstruction in the highway, to be recovered by complaint made to a justice of the peace, if applicable to this case, is merely cumulative, and does not take away the remedy by indictment at common law. It is true, as was resolved in Castle’s case, Cro. Jac. 644, that when a statute appoints a penalty for the doing of any thing, which was no of-fence before,and appoints how it shall be recovered,it shall be' punished by that means,and not by indictment; but it is otherwise,if ths doing of the thing was an offence at common law, and punishable before the making of the statute. The rule of distinction is very fully and clearly stated in the case of Rex vs. Robinson, 2 Burr, 799. It is there laid down by lord Mansfield, that where a statute creates a new offence, by prohibiting and making unlawful any thing which was lawful before, and appoints a specific remedy against such new offence, by a particular sanction and particular method of proceeding, that particular method of proceeding must be pursued, and no other ; but where the offence was an-tecedently punishable by a common law proceeding, there either method may be pursued, and the prosecutor is at liberty to proceed either by indictment at common law, or in the method prescribed by the statute, because there the sanction is cumulative, and does not exclude the common law punishment.
There is no doubt, that in criminal cases, the jury are the judges of the law as well as the fact. This is the true principle of the [489]*489eOmmón law, and it is peculiarly appropriate to a free govern-tnent, where it is unquestionably both wise and fit, that the people should retain in their own hands as much of the administration of justice as is consistent with the regular and orderly dispensation of it, and the security of person and property. This power the people exercise in criminal cases, in the persons of jurors, selected from among themselves from time to time, as occasion may require $ and while the power, thus retained by them, furnishes the most effectual security against the possible exertion of arbitrary au? thority by the judges, it affords the best protection to innocence. The direction given to the jury, in relation to their right to decide the law as well as the fact, as stated in the exceptions, carries upon the face of it a seeming inconsistency; but taking the whole direction together, we think the meaning of the court below must have been, and such is probably the fair construction, $iat the jury were to decide on the evidence and the law arising upon the facts proved, but not upon the validity or sufficiency of the indictment.
Smith and Brown, for the state.
Allen, Smalley & Adams and Hunt, for the defendant.
Exceptions and motion in arrest overruled, and judgment against the respondent.