This is an action of tort to recover damages for an alleged obstruction of the plaintiff’s way over and across the land of the defendant. It appears from the statements in the aill of exceptions that there was no controversy at the trial in relation to the general question whether the plaintiff had a right of way over the land; but that the precise point in issue between the parties was, whether the way to which the plaintiff had become, as he alleged, entitled by prescription, was in a certain place and in a definite course and line of travel; or was a way by necessity, shifting and changeable in its course at the mere will of the defendant, who could, in the exercise of his power and right of control in this respect, confine and restrict the plaintiff to the use and enjoyment of any convenient and reasonable way which should thus from time to time be laid out for him.
To establish this last proposition, and to show that the plain tiff had not confined himself to any particular line of travel over the defendant’s land, he offered evidence to prove that other persons had gone over it in different directions, and that the place where they travelled was for the time being the way for such persons and for the plaintiff. This evidence was rejected by the court, and the ruling, we think, was perfectly correct. The acts of strangers could, upon no just principle, defeat or qualify his right. He claimed a definite and particular way, acquired by a course of uninterrupted use and enjoyment for a period of more than forty years by himself and those under whom he claimed; and any title thus acquired could not be affected by any use or forbearance on the part of those for whose acts and course of proceeding he was in no respect responsible.
This case differs very widely from that of Pope v. Devereux, 5 Gray, 409, cited at the argument. There one of the parties having first undertaken to show the existence of a beaten and visible track across certain lands, and then to deduce therefrom that he and those with whom his rights were connected had acquired a right of way there, the other was allowed to prove, for the purpose of refuting the correctness of this infer*479ence and of controlling the effect of the evidence produced against him, that many other people were in the habit of crossing the field, and generally, though not uniformly, in the same visible path. The defendant in this case had no such object in view. His purpose was to maintain that the plaintiff was not entitled to a way in a particular place. This certainly would not be done by the most decisive proof that other parties, entire strangers to him and his title, passed over the land when they had occasion to do so in other and different courses» and lines of travel. All evidence to this effect was therefore rightly excluded.
It appears further from the bill of exceptions, that in the year 1845 the defendant constructed a new way on the northerly part of his la.nd as a substitute for the old way by and along the shore, to which the plaintiff insisted that he and those under whom he claimed had acquired a right; and that this substituted way was assented ,to and agreed upon by both of the parties, and continued to be used without interruption by the plaintiff until the time of the alleged obstruction of which he complains. The defendant requested the court to instruct the jury that use of the new way by the plaintiff was not proof of its substitution for the old way claimed by him, but might be deemed proof that the plaintiff’s right was a way by necessity, and was a shifting way at the pleasure of the owner of the land. The defendant complains that this request was not complied with, and that the desired instruction was not given to the jury. But upon the facts reported there was no occasion for the application of a part of that proposition, if it was a correct statement of the law, and no propriety in prescribing the residue as a rule for the guidance of the jury. It does not appear that the plaintiff proposed that the jury should, or suggested that they could, infer or deduce from his use of the new way the conclusion that it was a substitute for the old one ; and therefore there was no reason why the first part of the proposed instruction should have been given. And it seems impossible that this use, which was the result of the mutual assent of the parties, should be regarded as affording *480any proof or evidence that the way to which the plaintiff claimed to be entitled was a way of necessity, or changeable at the will of the owner of the land. When a right of way in a certain locality exists, it may be changed by the verbal agreement of the parties in interest; and when the change is actually made, and a new way is thus adopted by them, it fixes and determines their respective rights. A bargain and agreement by two parties, to do a particular act affecting and qualifying in any material respect their individual rights, has surely no tendency to show that one of them may do the same thing to the disadvantage' of the other, without his assent or permission. Larned v. Larned, 11 Met. 421. But still further to show that there was no occasion for or propriety in the desired instruction, it appears that the whole matter respecting a way by prescription and a way by necessity was submitted under unobjectionable instructions in relation to their character, and the manner in which they might be created, to the jury, who upon the whole evidence found that the plaintiff was entitled to a way by prescription.
In all other particulars the several requests made by the defendant appear to have been directly or substantially complied with ; and we cannot find that there was any irregularity in the course of the trial, or any misdirection to the jury. The defendant has therefore no just cause of objection, either that evidence was excluded which should have been received, or that instructions were withheld which ought to have been adopted; and his exceptions must accordingly be overruled.
Exceptions overruled.