Upon the evidence reported, it appears to the court very clear that this action cannot be maintained. The plaintiff neither produced nor offered any evidence sufficient to prove a title in him to the locus in quo, either by possession or otherwise. He proved, it is true, that a tract of land, including the locus, was conveyed to him by a deed from the first parish in Springfield ; but there was qo evidence to prove that the parish ever had any title to or possession of the premises. It was proved that the locus was a part of a tract of land bounding westerly on Connecticut River, formerly belonging to the town of Springfield, and that, at an early period, a portion of the said tract was set apart and appropriated by the town as a burying ground, and had been long occupied as such; but no evidence was offered by the plaintiff, tending to prove that the locus was included in the burying ground. It was proved that the burying ground had been long enclosed by a fence, and that the locus was not within the enclosure.
The plaintiff offered evidence to prove that the locus was known as part of the burying ground. But it is very clear that the limits of the burying yard could not be established by such evidence, unless it was first proved that the *31record of the laying out of the burying yard had been lost. The evidence of reputation, even as to ancient acts and doings, is inadmissible, unless it is first made to appear that no better evidence can be obtained. Nor can the bank or space between the river and the fence be considered as appurtenant to the burying ground, as the plaintiff’s counsel have argued. And in the second place, if the locus was included within the limits of the burying ground, we are of opinion that the plaintiff has failed to prove any title to the bank or space between the westerly fence and the river. It has been argued that the appropriation of the land by the town, for the purposes of a burying ground, must be considered as a donation or appropriation to the use of the parish. And the cases of First Parish in Shrewsbury v. Smith, 14 Pick. 297, and First Parish in Medford v. Inhabitants of Medford, 21 Pick. 199, were cited in support of the argument. But those cases differ from the present, in a material circumstance. In both of them, the burying grounds were included within the lots appropriated for the purpose of building thereon ; and it was held that such an appropriation might vest a title to the whole lot, or that the possession by the parish would be sufficient to enable them to maintain trespass against a stranger, as was decided in the former of those cases. In the latter case, it was decidi / ed, and we think correctly, that such an appropriation by the town of Medford of a lot, for the purpose of building a meeting-house thereon, was an appropriation of the land, by the corporation, to its own use as a parish; in other words, to a parochial use.
It is obvious, therefore, that neither of those cases is applicable to the plaintiff’s claim in the present case. In those cases, it was decided that the burying grounds were the property of the parishes, not because they were more appropriate to parochial than to municipal purposes and uses, but because they were laid out on lands appropriated or dedicated to the uses of the parishes. In the present case, there is no evidence of any such appropriation or dedication.
Then, as to possession, there is no evidence that the plaintiff *32or the parish had ever had any possession, actual or constructive, except within the burying yard enclosure ; and even of that the parish and the town had a mixed possession, which might entitle either to maintain trespass against a stranger. But certainly the parish had no title to support any action against the town, or against any one claiming under the town.
If the parish had entered under a title adverse to that of the town, they might, perhaps, have acquired a title by disseizin ; but of this it is not necessary to express any decided opinion. Upon the facts reported, they clearly have acquired no such title, nor indeed any title, as against the town, 01 against the defendant, if he entered by license from the town.
Exceptions overruled.