Certain questions in this case were properly submitted to the consideration of the jury under instructions to which there is no valid ground of exception.
1. The first and leading inquiry was, whether the way, called in the deeds under which the plaintiff claims title a “ proprietors’ way,” had ever become a public way, so that the defendant *101could exercise a right to use it in common with all other persons having occasion to pass in that direction. This was a question of fact, depending mainly on proof that the use of the way had been so general, uninterrupted and continuous as to warrant the inference that it had been laid out, appropriated or dedicated by the proprietors of the adjoining land to the public. Jennings v. Tisbury, 5 Gray, 73. Taylor v. Boston Water Power Co. 12 Gray, 415.
2. If it ever had been a public way, it was then material to consider whether it had ever been discontinued so as to defeat the right of the public to use and enjoy it. This was also a question of fact. It was competent for the plaintiff to show, in proof of this issue, that the alleged way had been shut up, the land enclosed by permanent fences or walls, and occupied or improved for purposes inconsistent with its use as a public way, for a long series of years, and any other facts sufficient to found a legal presumption upon, that the way had been discontinued by competent authority. Such a presumption would stand on the same grounds as that of a non-appearing grant, or a lost record, and if properly supported by evidence would justify the jury in inferring that whatever was necessary to give legal effect and operation to a discontinuance of the way was rightly done. In this view, evidence that the plaintiff’s grantor, as early as 1803, had erected a fence across the alleged way, tended directly to sustain the presumption that it had been discontinued as a public way. Nor can we see that the doctrine of disseisin, or of tacking the adverse possessions of successive owners, had any bearing on the issue before the jury. It was not a question of title to the soil. The defendant did not claim the fee in that part of the plaintiff’s close in which the main trespass was alleged to have been committed, but only the easement of a right of way therein. This easement, whether public or private, might be destroyed or defeated by a discontinuance of the way; and its obstruction by successive owners or occupiers of the close, by whatever right or title they were possessed of the premises, was competent proof as tending to show that the right of way no longer existed,
*1023. The further objection taken by the defendant, that the plaintiff is estopped by his deed, which bounded the lot granted to him “ southeasterly by a proprietors’ way,” from denying the existence of such way, is not tenable. Such estoppel'might exist if the defendant owned the whole premises next adjoining those of the plaintiff on the easterly side, so that -he held as privy in estate along the entire line where the way is claimed to exist. But that part of the premises next adjoining those of the plaintiff, where the principal acts of trespass were committed, belongs to a third person. To this estate the defendant is a stranger, and estoppels by deed bind only parties or privies.
4. The evidence as to the cost of removing the gravel from the plaintiff’s premises, which had been placed there by the defendant, was rightly admitted. It was not a measure of the plaintiff’s damages, nor was it submitted to the jury as such by the court. But it was a fact, in connection with other circumstances, proper to be considered by the jury in estimating the extent of the injury done to the plaintiff’s land.
5. The only remaining question arises on the refusal of the court to instruct the jury according to the request contained in the second prayer for instructions. This refusal was clearly erroneous. If the jury were satisfied that there was a proprietors’ way over the land of the plaintiff, originally used and enjoyed for general purposes by the adjoining owners of the land, such right would not be restricted or impaired because the owners of the easement had had occasion to use it only for taking hay off the premises. Such use was all that was necessary or useful while their estates were unoccupied or unimproved, and no access was required to them except to take off the annual crop of grass. But it was no evidence of an intent on their part to abandon the right to use the way for other purposes when it might become useful or expedient so to do; and the jury would not be warranted in inferring from such non-user any relinquishmént or abandonment of the original right to use the way as a means of access to the premises adjoining, without restriction or limitation. But as the ruling did not in any way affect the special finding of the jury on the question of the exist*103ence of a public way over the land of the plaintiff, it will not be necessary to reopen the whole case, but only to send it back for trial on the question of the extent of the easement of the plaintiff' in the private way, which the jury at the former trial have found to exist over the plaintiff’s premises. ,
jExceptions sustained