The record of the laying out of the highway in 1760 was evidence of the facts recited in it — 1 Greenl. Ev., ss. 484, 493; Seavey v. Seavey,37 N.H. 125, 132 — and evidence of the legal laying out of a highway. State v. Richmond, 26 N.H. 232, 246; Wiley v. Portsmouth, 35 N.H. 303, 309, 310; Hayward v. Bath, 38 N.H. 179, 187.
The highway was laid out by the selectmen of Londonderry, and being in that part of the town which, by division, became Derry, stood on the same ground, after the division, as if laid out by the selectmen of Derry. The lawful acts of the selectmen of Londonderry upon and affecting the territory which became Derry, for all legal purposes, were the same as if done by the selectmen of the new town. The highway was in Derry, was laid out by the selectmen, and might be discontinued by a vote of the town. Gent. St., c. 65, ss. 1, 2.
The vote of the town was a discontinuance of the highway. Damages to land-owners, resulting from a discontinuance of a highway by vote of the town, are adjusted by the court on petition for that purpose, and the town has no power to act in the premises. Gen. St., c. 65, s. 4. The failure of the town to award damages did not operate to prevent a discontinuance.
An abandonment of the use of a highway by the public does not alone result in a loss of the public right to use it, nor in a discontinuance of the highway. An adverse user for twenty years, originating without right, will not bar the rights of the public. The public can lose no rights in its establishments by non-user, and individuals can acquire no title in them by prescription. Nullum tempus occurrit regi. State v. Franklin Falls Co.,49 N.H. 240. The highway was not discontinued by abandonment, but by vote of Derry in 1865, and no private way could have been acquired by prescription.
The evidence that a surveyor, employed by former owners of the parties' lands, ran the division line in the middle of the lane, and that a former possessor of the defendant's title pointed out to him a stake in the middle of the north end of the lane as a bound in the division line, was admissible on the question of where the dividing line was. Sawyer v. Fellows, 6 N.H. 107; Eaton v. Rice, 8 N.H. 378; Dudley v. Elkins,39 N.H. 78. *Page 245
The description, in the plaintiff's title deeds, of a line running by the highway and by land of another, indicates an intention to make the line of the adjoining owner's land the boundary line in that direction, and where that line was was submitted to the jury. The deeds were evidence on the question, and there was no error in refusing to instruct the jury that the plaintiff acquired by his deeds no title to the east half of the close.
Exceptions overruled.
DOE, C. J., did not sit.