It is well known that there exist, and have existed for many years, in this State and in Massachusetts, certain grounds designated as public landing places. Many of them it may be presumed have been used as such, at and from an early period in the settlement of our country. There does not appear to have been provided by law any mode of laying out and setting apart lands for this purpose. Nor has any such authority been exercised for many years, if it ever was, by any court, town or other corporation, over the lands of others. If landing places have been established at any recent period, it must have been by a dedication of them to public use by proprietors or individuals, who were owners of the land. The lauding places now in existence had their origin, probably, from the vote and appointment of proprietors of townships or considerable tracts of land, who found it for their interest to establish privileges of this kind for the common benefit. If towns have ever done this in their municipal capacity, it must have beea with the assent or acquiescence of the owner of the soil. But whatever may have been their origin, which it might now be difficult in many instances, from the loss or destruction of records or other documents, to ascertain, they have been recognized and protected by law. By the statute of 1785, ch. 1, sec. 4, it was provided, that all fences or buildings set up and erected on lands then used and improved as public landing places, or such as might thereafter be laid out and appropriated to that use, without lawful permission therefor, should he esteemed nuisances, and be abated as such. The same'provision was re-enacted in this State, by Stat. 1821, ch. 24, sec. 5.
From the facts reported, it is very clear'that the space-between the wharf formerly owned by John Sevey and that of Timothy Parsons, has been known by the name of the town landing for more than sixty years; and as such has been recognized by the declarations and acts of those, under whom one of the respondents .claims, and by himself in his mortgage deed of January, 1824. The ancient extent and continued use. of the landing place, was proved also by *122several witnesses. There is reason to believe that this landing place, which has not been claimed until very recently as private property, was designated as such by the proprietors of the Wiscasset company. As these proprietors have long since ceased to exist as a company, and as their records, after diligent search, cannot be found, the regular evidence of this dedication cannot be adduced. But it appears that a plan existed forty years ago, taken by order of the proprietors, in which the premises were delineated and described as a town landing. This evidence, together with the fact that it was before and since known and used as such, may well bring it within the protection of the Massachusetts statute of 1785, and of our own of 1821, unless the respondents have made out a title to the premises, or other justification. They rely upon a deed of release from one Samuel Barstow, dated October IS, 1792 to John Sevey, grandfather of one of the respondents; and a claim and possession of the land under it. It does not appear that Barstow ever had possession of the land. One witness testified that John Sevey, the grandfather, extended an angle of his wharf across the premises, using and claiming them as his- property. Other witnesses testified that the angle of the wharf did not extend so far ; arid that there was a path or passage way to and from the street across the premises to the wharf, which was used by the public. If, however, Sevey, the grandfather did extend an angle from his wharf to facilitate access thereto, which, if erected, appears to have been used by the public, it would not be such an exclusive appropriation, as would give him the seisin and property against the public right. He was entitled to use it in common with others, and what was done by him might be for the benefit, rather than the annoyance of the public. But it is in proof from the testimony of a witness, who occupied for several years after 1792 a part of a store on the wharf, that Sevey, the grandfather, repeatedly pointed out to him the bounds of his land ; admitting that it was bounded southerly by the town landing, and that it extended no farther south than the capsill of his wharf. And in conformity with this claim the estate was inventoried, and conveyances made by those who derived title from the grandfather, bounding this part of his estate southerly on the town landing. The release oí Barstow therefore, was a mere *123nullity ; neither paity being in possession, and the grantee disclaiming any right or interest under it. The existence of the public landing having been made out, by the best evidence the nature of the case admits; and the respondents failing to make out any title, or to establish any justification, for the erection complained of, the case is brought within the statute of Maine before cited, which declares such erection a nuisance, for which the party erecting or continuing it may be indicted. An indictment for erecting a fence upon a public lauding place was sustained in Massachusetts, under a statute of the Commonwealth, of which ours is an exact transcript.. Commonwealth v. Tucker, 2 Pick. 44.
If the premises had not been shown to be a public landing, there is in the case, evidence that a town way was duly laid out over them. And any building, erected or continued on any town or private way, is a nuisance. Stat. 1821, ch. 118, sec. 25 and 26. By the thirteenth section of the same statute, it is made the duty of towns to keep in repair town ways, as well as highways, properly so called, ana for any failure in this duty, they are liable to an information in behalf of the State. 2 Pick. 51. However, as the respondents are clearly liable under the second count; and both counts being for the same offence in different forms; it becomes unnecessary to determine their liability, regarding the premises as a town way.