The opinion of the Cour.t was drawn up by
Weston C. J.The defendant is charged with having obstructed a ceftain town or private way, in the city of Portland, described in the indictment, over and through which, it is there alleged, all the'inhabitants of that city have a right to pass. The point taken at the trial, relative to the abatement of the nuisance, and its effect, is not insisted on by the counsel. The remaining question is, whether there was competent proof of the existence of the way set forth in the indictment. The mode of locating ways of this description, is provided by the statute of 1821, c. 118, § 9. The same mode existed in the statute laws of Massachusetts, prior to the separation. It having been proved at the trial, that the way had been used, as such, for more than twenty years, if located in pursuance of the statute, it must have been under the *69statute of Massachusetts. As, however, in this particular, the one is a transcript of the other, both must receive the same construction.
The existence of a public highway, may be proved by a user of twenty years : but it has been decided, in Massachusetts, that a town or private way cannot be thus proved. A strong intimation to this effect is given by Parker C. J., speaking for a majority of the Court, Putnam J. dissenting, in the Com. v. Newbury, 2 Pick. 51. But in the case of the Com. v. Low, 3 Pick. 408, the point was directly decided, without any dissenting opinion, although Putnam J. was present. It was there held, that a town may become seized of a way by grant, prescription, or reservation, or from long continued occupation, from which a grant may be presumed. Bui it was further held, that if such a way be obstructed, no indictment will lie for the obstruction, nor will the town be liable to punishment for neglecting to repair it. But the point directly decided was, that a town way could only be established in tlie statute mode, and was not proved by evidence of user. By which is to be understood, such a town way as tbe town is bound to repair, an obstruction to which is an indictable offence.
A dictum of Shaw C. J. in Stedman v. Southbridge, 17 Pick. 162, may seem to have a different bearing, but may be reconciled, by referring his intimation lo a right of way, which, according to the former opinion, a town might acquire, for neglecting or obstructing which, however, it was held no indictment would lie. In the case last cited, which was a civil action, the town was held liable, not upon tlie averment that it was a town way, but upon an averment in another'count, that it was a road, which was held to mean a public highway. We do not, therefore, regard that case as impairing the authority of the Com. v. Low. There is no reason, which could sustain that decision, which does not apply with equal force in this State. The laws of both States have a common source, and they have not been changed here by the legislative power. And upon the whole, we perceive no just reason why we should cosne to a different conclusion. The existence of the way alleged, not having been established by competent proof, the verdict is set aside and a new trial granted.