Prior to the fencing of the land in controversy by the plaintiff in April 1859, the defendants had done enough to gain a possessory title as against strangers. The plaintiff was therefore obliged to rely upon earlier acts of his own, to gain a possessory title as against them. He was himself a *318witness, and stated what he had done. His account is very loose and general, and his acts are such as a man might have done in respect to a highway or common adjoining his farm, without any intention to assert title thereby; and however frequent or constant they may have been, another element is necessary to gain a possessory title to land lying in common and uninclosed. The acts must have been done with an intent to assert title. The plaintiff omitted to testify on this point, and left it to inference. But the inference of intent drawn from external acts of this character is an inference of fact, within the province of a jury, and not an inference of law within the province of the court. The evidence should therefore have been submitted to the jury, under proper instructions from the court.
It was correctly ruled that the act of incorporation of the town of Nahant (St. 1853, c. 114) did not transfer to the town any real estate at that time owned by Lynn. It gave them the right to receive of Lynn their proportion of corporate property. But when their proportion was ascertained, a conveyance would be necessary to pass the title to real estate, even if this were the land of the town of Lynn.
The statement in the report in respect to the ancient highway is so vague that is difficult to form any opinion in regard to it. Ordinarily, if one were to offer such proof as the plaintiff did, to establish his prior possessory title, namely, turning out his cows to graze, and keeping off >ther cows from grazing on the lot, it would be competent to rebut this proof by" showing that the whole tract was a public highway in common use. But here was a tract of about forty rods in length and from nine to twelve rods in width, and the offer was merely to prove that an ancient highway had crossed the land in controversy, which had been superseded by another way, and for about thirteen years, but never formally discontinued. What part of the land is crossed, or whether it crossed that part where the defendants removed the plaintiff’s fence, was not stated in the offer. The court cannot see without the evidence that proof of such a way would rebut the plaintiff’s proof of possessory title.
Exceptions sustained.