This was an action on the case fora disturoance of the plaintiff’s right of way in and over a certain street in the city of Lowell, called Race street. Upon the facts and evidence reported, the presiding judge at the tidal was of opinion, that the plaintiff was entitled to maintain his action ; and a verdict was thereupon taken in his favor for nominal damages, subject to the opinion of the whole court. The truth of the facts stated by the witnesses was not disputed at the trial, and they are to be taken as true.
Upon these facts, we think it very clear, that the plaintiff, by a grant from the proprietors of the land over which Race street had been laid out by them, did acquire a good title to the right of way claimed, for the disturbance of which the defendants are liable, unless they can maintain the ground taken in the defence.
The defendants maintain that Race street was a public way by dedication by the proprietors of the land; and if so, that a nuisance therein is indictable as for the violation of the public right, but that no private action can be maintained except for special damages; and that no such damages were proved or claimed in the present case. This ground of defence, we are of opinion, may be well maintained, if in fact Race street was a public way. This fact it is incumbent on the defendants to prove, and the question is, whether it does clearly and distinctly appear by the facts and evidence reported.
It has been argued, that all which was necessary to make such a way by dedication is, that the intention of the owner of the land to dedicate it to public use should distinctly ap. pear from his acts and declarations; and that the public should, pursuant to that intention, actually enjoy the use of the way.
*339But if such be the law, we are nevertheless of the opinion, that the defence cannot be maintained. The facts proved and reported fail to indicate an intention of the proprietors of the land to dedicate the street in question to public use. It is true, that it was laid out by them as a street; that they in 1830 or 1831 built a carriage way over it in such manner as is usual in working and building public streets; and that from the time this carriage way was made until the spring of 1847, the way was used by the public without obstruction or objection. If these had been all the facts proved, we do not doubt, that the intention of the proprietors to dedicate the way to public use might be reasonably inferred. But other facts were proved at the trial, which appear to the court to be inconsistent with such an intention. In the first place, it appears by the conveyance of a lot of land, over which Race street had been laid out, from the proprietors to the defendants, that the streets described in the conveyance (including Race street) were to be forever maintained as roads for the common use of the parties thereto, their successors and assigns, each keeping in repair those parts which passed over their respective estates. And it appears also, that afterwards the proprietors sold at public auction all their land on Race street, and that one of the printed conditions of sale was as follows, namely: “ The streets mentioned on the catalogue and laid out on the plans (which included Race street) are all to be reserved and kept open for the benefit of the abut-tors, but they are not all graded. Any street reserved and not graded may be altered or discontinued with the consent of the abuttors thereon.”
These facts certainly indicate no intention of dedicating these streets to public use, but quite the contrary. The proprietors knew, doubtless, that while the streets remained open, the public would use them as occasion might require, and to such use they had no objection, for they made none; yet such use was incidental; the streets were not laid out for that purpose, but for the use and accommodation of the abuttors thereon, and a right was reserved to them to alter or discon*340tinue any street which had been reserved but not graded These facts are entirely inconsistent with an intention of dedicating these streets to public use, and are decisive of the case.
But if the evidence were otherwise, and the intention of the proprietors of the land to dedicate these ways to the use of the public had been distinctly and clearly proved, we are by no means of opinion, that this defence could be maintained On the contrary, we are strongly inclined to the opinion, that whatever may be the law in England, in this commonwealth, no public way can be established by dedication merely, and without the assent, express or implied, of the city or town bound by law to keep it in repair. If such were not the law, any land owner, as Morton, J., justly remarks in Hobbs v. Lowell, 19 Pick. 405, 411, might for his own interest, and without regard to public convenience or necessity, establish a highway and subject the town within which it lies to the burden of supporting it. The question, however, was not decided in that case ; as it was proved that the dedication of the road was acquiesced in by the surveyors of highways, the selectmen of the town, and the town itself in which the road was laid out. And it seems to be clearly intimated, that if it had been necessary to decide the question, it would have been decided, that without such acquiescence the way would not have been considered as a public way. The chief justice, in delivering the opinion of the majority of the court, refers to the case of The King v. Leake, 5 B. & Ad. 469, in which it was held, that to constitute a highway by dedication, the assent of the parish was not necessary ; and after speaking of such a doctrine, he adds: “ It is manifest, however, that there is very little analogy between the character, powers and duties of parishes in England, and those of towns in this commonwealth.” And certainly there seems to be no good reason, why such a hardship should be imposed on cities and towns, without their assent, and without any opportunity to make their objections; when, as Morton, J., remarks in Hobbs v. Lowell, “ proper tribunals are empowered to inquire when *341and where new roads are needed, and to proceed to lay out such as the public exigencies may require, having due regard to private rights and public burdens.”
But if there were any doubts on this point previous to the St. of 1846, c. 203, it seems to me they must be removed by that statute. The statute provides, that no way heretofore opened and dedicated to the public use, and not already become a public way, shall become chargeable upon any city or town of this commonwealth, unless such way shall be laid out and established by the city or town, in the manner prescribed by the statutes of this commonwealth. It .has been argued, for the defendants, that this way is not within the descriptive words of the statute, because it' had become a public way long before the statute was passed. But it appears to me, that it is a much more reasonable construction of the statute, to hold that the ways referred to, as having been dedicated and become public ways, were such as the way in Lowell which had been adjudged a public way, and as to which the dedication had been assented to or acquiesced in by the town, and not to ways like that in this case, where no such assent or acquiescence had been proved; but as to which, on the contrary, it was proved, that in 1846, the city of Lowell laid out a portion of said Race street as a public street. If the way became a public way as soon as used, without the assent of the city of Lowell, it might become a public way immediately after it was laid out and dedicated and prepared for use, for it might then be used by the public; and so is the law in England, as it was laid down in the case of Woodyer v. Hadden, 5 Taunt. 125, 137: “ No particular time,” it is said, “ is necessary for evidence of a dedication ; it is not, like a grant, presumed from length of time ; for if the act of dedication be unequivocal, it may take place immediately; for instance, if a man builds a double row of houses opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway.”
It cannot, we think, be inferred from the language of the statute that it was intended to sanction such a doctrine, as *342the law of Massachusetts ; for if such were the law, no one could suppose that there was a way in the commonwealth, which had been dedicated to public use, which had not also become a public way.
It has been also argued for the defendants, that the exemption of the city from the charge of maintaining the way in question is not inconsistent with the right of the public to use the way, and the duty of the land owner to refrain from obstructing it. This is only true in part. The land owner, in such case, may not be entitled to maintain trespass against any one who might pass over it while it remained open, but he might shut up the way, and the right of passing over it would thereby be terminated; the opening of the street amounting to a license, and not to a grant or dedication. And it is very clear, that no indictment for a nuisance on such a way could be maintained. By the second section of the statute above referred to, the mayor and aldermen of each city, and the selectmen of each town in the commonwealth, are required, whenever the public safety may demand it, to cause the entrances of all such ways to be closed up, in order to caution the public against entering thereupon.
Such ways, therefore, cannot be considered as public ways; for if they had been so considered, cities or towns would have been bound to keep them in repair, instead of closing up the entrances, as required by the statute.
For these, reasons, we are strongly inclined to the opinion, as before remarked, that the defence in this case could not be sustained, although it were admitted, that the proprietors of the land did lay out and open the way in question with the intention to dedicate it to the public use, there being no evidence of the' assent of the city of Lowell to such dedication; but, on the contrary, a portion of the said way was laid out by the city as a public street in 1846, long after I lie supposed dedication. Judgment on the verdict.