The only question before us is whether the precise instructions asked for should have been given. The first was objectionable in asking for an abstract ruling, that the use of the way by the plaintiff had been a permissive use, thus seeking to take the case entirely from the consideration of the jury, instead of submitting the case to them under proper instructions as to the nature of adverse possession, and how far the same would exist when the use was that of a passage way over land attached to a public building, or one used for public purposes. The presiding judge submitted the case to the jury, but under instructions to which no exceptions are taken, if any other instructions than those asked for could be properly given. It must, therefore, be assumed that the principles of law applicable to the use of a passage-way over land attached to a meeting-house or academy, as they had been held by this court in the case of Kilburn v. Adams, 7 Met. 39, and what would be required to constitute adverse posses- ’ *546sion, were fully stated in the charge to the jury. The cases are not entirely alike. The use of a passage through the yard of a tavern to the lot of an adjoining owner may present a different case from that of the use of public grounds, attached to an academy building. The cases differ however in a more material point, as the adverse use in the case at bar, as was alleged on the part of the defendant, commenced before there was any tavern or tavern yard. The case was one for the jury, under proper instructions, and not to be decided by the court as a permissive occupation by a conclusive presumption of law.
The further prayer for instructions that the erection of a building in 1831, obstructing a part of the way that had been used by the plaintiff, would defeat the entire right of way, although a way of reduced width remained, and that therefore the plaintiff must show a new right of way acquired since 1831, and that this was a question of law and not of fact, was also properly refused.
Judgment on the verdict