Two questions are raised for the consideration of the Court.
1. Were the defendants entitled to give in evidence, that the locus in quo was an highway, under the plea of the general issue ?
2. If so, were the proceedings of the commissioners regular, they having never, all of them, had a previous meeting, deliberation and decision on the subject ?
In trespass on land, the plea of not guilty puts in issue the facts necessary to constitute the trespass; and under it the defendant may shew title or possession in himself, or those under whom he claims. But when the act appears to be, prima facie, a trespass, any matter of justification, by virtue of any authority, or any easement must be pleaded, or notice given of it. (Co. Litt. 283. a. 1 Ch. Pl. 492. 2 Saund. 402, n. 11 John. 132. 7 Mass. Rep. 387.)
*240The Justice was right in deciding that possession of the premises might be shewn to be out of the plaintiff; but he erred in admitting testimony to prove an highway. An highway is a mere easement, The publiclc acquire a right of way ; but the proprietor retains all his rights, not incompatible with the publick right, and may maintain trespass for cutting timber, &c. (15 John. 452-3, and 491. 1 Con. Rep. 103.)
On the second point, there is no doubt the proceedings of the commissioners were irregular. They must all be present, but a majority may decide.
Judgment reversed, (a)
Vid. The People v. The Commissioners of Salem, ante, 23. Also, ante, 79, n. (a)