No principle is more familiar or better settled, than that the right to the soil of a highway resides in the proprietor of the land over which it has been laid; and that the citizen has no more' than a license to pass along it with carriages and cattle; an abuse of. which, like the abuse of any other license given, not by the party, but by the law, makes him a trespasser, against the proprietor, from the beginning. It is unnecessary to go to English decisions, or those in our neighbouring states, for an application of the principle to the misuse of a highway, for we have ourselves applied it to the landing of passengers on the shore of a river, itself a highway, at the junction of a public road, and making the spot a temporary harbour for the craft of a ferry. If a wagoner were at liberty to deposit fence rails on a highway, he would be equally at liberty to deposit ordure on it, or any thing else as offensive to a family dwelling at the wayside; or he might malee the spot a resting-place before their door for days or for months. The state has dedicated her highways to no such uses, and the citizen has a right to enjoy them only according to the intent. Whether the right of soil was actually in the plaintiffs, ought, if disputed, to have been submitted to the jury, for we have neither the means nor the capacity to decide it. The direction -was founded on an assumption of the fact, and the principle of it was wrong.
Judgment reversed, and venire de novo awarded.