delivered the opinion of the court.
The road in question cannot be considered as a legal town way. It was laid out by only one of the selectmen, and was never duly accepted by the town, because there was no article in the «'arrant for calling the meeting that could justify its acceptance. It cannot be considered as a way by prescription, for it has not. yet been in existence for fourteen years ; and no presumption is admissible as to its origin, because we know it originated at the time it was laid out, and in virtue of the supposed legality of the *273town's proceedings respecting it. But it is contended that during the above period, it has been a road or way defacto; and that as the town has bestdwed some repairs upon it, arid placed a guide" post at one end of it, they are estopped to deny its existence and their liability to repair it. Unless they had a right to repair it we cannot consider them bound so to do. Todd v. Rome 2 Greenl. 55. No adverse appropriation and user of the land, over which the road passes, short of twenty years, could take away the own~ or's right of entry and give the town a right to dig up the soil or remove it, and do those things necessary in making or repairing the road. In Gayetty v. Bethune 14 Mass. 49, the plaintiff corn" plaiiied of the interruption of a private way. The court say " it is adverse possession only upon which a presumption of a grant can arise;" and that "no period short of twenty years has been allowed, sufficient for this purpose, in this country." And a similar principle seems to have been adopted by the court in the ease of First Parish in New Gloucester v. Beach, of which a report appears in a note to Commonwealth v. Newbury 2 Pick. 51. The same principle was recognized hi Hill v. Crosby ib. 466. It is true these are cases in which the right of way was claimed by an individual : but there scorns to bc no ground of distinction between such a claim asserted by an individual or by the public in neither case can the right be acquired, except by a continued adverse claim and user for at least twenty years. Besides, during the whole period of the road's existence, only one shilling was over laid out upon it, and that merely in removing some particular obstruction; and whether this was done under the town's authority is uncertain, because it does not appear that the road in question was ever assigned to any surveyor. We do not per" ceive any one act, performed under the legal authority of the town respecting this road, which can be considered as binding on them. The votes passed and reconsidered as to compensation, were only propositions for a compromise, but were never accepted. Our opinion is, that upon the facts before us, the action. cannot be maintained, And therefore the verdict must be set aside, and a
New trial granted.