The opinion was delivered at the October term 1852.
The effect of the vote of the proprietors of the town of Worcester, passed in the year 1733, that “ one hundred acres of the poorest land on Millstone hill be left common for the use of the town for building stones,” has already been partially considered by this court in the case referred to in the agreed statement of facts. Worcester v. Green, 2 Pick. 425. It was there held, that the land itself did not pass by the vote to the town; but that the fee remained in the proprietors and was conveyed by a subsequent grant from thém to one Hayward, from whom the plaintiff in this action, by mesne conveyances, derives his title. The object of the present suit is to ascertain and define the precise nature and extent of the grant under the vote, and thus to determine the relative rights of the owners of the fee, and of the town and its inhabitants, in the premises in question.
It is urged, on the part of the plaintiff, that the vote of the proprietors was a mere license, revocable in its nature, and that it was in fact revoked by the subsequent grant, or that, if it was a grant, yet, not having been put on record in the registry of deeds, it must yield to the recorded conveyance afterwards made to Hayward. But it is quite too late, at the present day, to impeach the validity of this grant on such grounds. It has long been the settled law of this common
In the early period of our colonial history, large tracts of land lying in a body of several miles in extent, in various parts of the province, were from time to time granted by the provincial government to individuals, constituting a proprietary, who organized themselves under the colonial laws, kept records of their proceedings, managed and divided their property, and disposed of it by votes of a majority duly recorded on their books of record. Anc. Chart. 402, 686. These books thus became the great sources of title, to which reference was had as being the highest and best evidence of it; and from votes, recorded only on such books of the proprietors, a large number of titles throughout the commonwealth is derived. Lands thus granted by vote were held in severalty by many persons, within the limits of the several proprietaries, long before any other place or mode of recording conveyances of real property than on such proprietors’ books, was in existence. Such was the case in the proprietary, which comprehended within its limits the territory of the present city of Worcester. Under the original grant to Gookin and others, many tracts of land had been granted by votes of the proprietors to actual settlers and others, (long prior to the establishment of the county of Worcester by the colonial legislature in JL731,) under which titles ever since have been and now are held. There can be no doubt, therefore, that this vote did operate as a grant of a qualified right to the premises in question, which was valid and effectual as against a subsequent purchaser, and subject to which the owner of the fee originally took his title from the proprietors.
In considering the nature and extent of the right thus granted, and the proper construction to be given to the vote by which it was created, it is to be borne in mind, that the
The words of the grant are, “ to be left common for the use of the town.” Applying to this language the liberal and benignant rules of interpretation which have always been adopted in construing ancient grants of this kind; Baker v. Fales, 16 Mass. 497; it is equivalent to a grant to the town in its corporate capacity, to be held in trust for the use and benefit of its inhabitants, or to use more nearly the words of the vote, it is granted to the town to be left common for the use of the inhabitants. The town was capable of taking the grant and of being seised to such a use. 1 Cruise, (Greenl.
Such being the proper construction of the grant, it only remains for us to define the extent of the right conferred by the use of the term “ for building.” Adopting the liberal interpretation already applied to the terms of the grant, it would seem to include the right to get stone for the use of the inhabitants, not merely for buildings, in the narrow and restricted sense of that word, but for all those structures and purposes,for which such material, in the progress of time and the arts, may be made useful. In this sense, it would not be a violation of the right, to appropriate the stone to the building of fences, bridges, arches, culverts, drains, curb-stones, monuments in cemeteries, and to the various ornamental uses to which it is usually applied. Livingston v. Tenbroeck, 16 Johns. 14.
The only limitation, as to the persons by whom the right is to be enjoyed, is that the stone shall be for the use of the inhabitants of Worcester. Therefore, whether it is quarried and prepared by the inhabitants themselves for their own use, or by persons, who, like the defendant, make it their business to procure it and get it ready for the use of others, it is equally within the terms of the grant, so long as the stone is applied to the use of the inhabitants of the town. The erection of public buildings by the town in its corporate capacity, or of houses and stores by persons not resident in Worcester, to be occupied and improved by the inhabitants, would be for the use of the inhabitants, and so within the fair intent of the
It may be proper to add, that the grant of the right to the stone carries with it, as a necessary incident, the right to enter and work the quarry, and to do all that is necessary and usual for the full enjoyment of the right, such as hewing the stone and preparing it for use. Bainb. on Mines, 49; Cardigan v. Armitage, 2 B. & C. 197.
Unless the parties can agree upon the judgment to be rendered, the case is to be sent to an assessor, to estimate the plaintiff’s damages, if any, upon the principles herein stated.