The opinion of the court was delivered by
Isiiam, J.The questions in this case arise upon the construction of the deed from Bannister to Thomas Johnson and others, and involves the inquiry, in whom is vested the title to the premises therein described, and whether the erection of the school house by the district was an appropriation of the use of the land consistent with its provisions. The object of the conveyance is definitely set forth in the deed, and whether the title of the land remains in the grantees, or has passed under its provisions to the town of Newbury, they are alike chargeable with the trust therein expressed, and neither can permit its appropriation for any other purpose or object.
*455In the construction of this instrument, its several provisions are to he taken together. The whole context is to be considered for the purpose of ascertaining and carrying into effect the intention of the parties as expressed therein. We apprehend no serious difficulty can arise in ascertaining that intention, or the interest and estate which the grantees took under this deed. In the first place, it is evident that the grantees took an estate in fee, for the conveyance is to them, their heirs, and assigns forever. In the second place, it was a conditional grant, as the deed expressly provides, that if the objects mentioned are not carried into effect within a given time, or if they neglect to occupy or improve them according to its provisions for the same period, they shall be divested of their interest in the premises, and the title shall pass into, and vest in the town of Newbury. And in the third place, the conveyance created a trust interest, as the grantees took no exclusive beneficial interest under the deed, but its entire benefit and use, was given and inured to the public, and was so to remain forever. In relation, also, to the object of the conveyance, and the persons by whom the trust interest was to be carried into effect, the intention of the grantor is equally obvious. The premises are forever to remain a public common, whether in the hands of the grantees, or the town of Newbury, and are not to be enclosed or obstructed in any manner, except for the purpose of erecting a suitable house for convening the general assembly of this state, and to be improved likewise for a county grammar school, if such should be incorporated in that town; and in case the buildings to be erected are not used for those purposes, they are to be appropriated for some moral and useful purpose, to be designated by the grantees in the deed, having a majority in interest.
The exercise of this right or power, in determining what is that moral and useful purpose, to which the use of the premises may be appropriated, is manifestly confined to the grantees, so long as the legal interest in the premises remains in them; but will pass to those, to whom they may have conveyed, or to their heirs, in case of the death of any of them. Wherever the title passes, there is vested the right of the trustees to see that the object of the conveyance is carried into effect, and to determine upon the useful and moral purposes, to which the premises may be applied. This construction, is necessary to preserve the estate, as an estate in fee; *456otherwise, upon the death of the grantees, the property would pass to the town, as there would be no persons in being to exe'cute the continued trust. The express provisions of the deed would be thereby defeated, for the conveyance was to them, their heirs and assigns forever; and their decision or action upon the subject, when made by a majority in interest is conclusive, and no one has a right to interfere, or call the matter in question, provided it is a moral and useful purpose to which the premises are applied. The town, or the public, have no title to the premises, so long; as the grantees, their heirs, and assigns have not neglected for the period of five years, to exercise their powers and duties under the deed. Under this construction of the deed the case is resolved into the inquiry, whether the grantees, their heirs, or assigns have lost, or forfeited their rights under this deed ; and whether the title has passed from them to the town of Newbury, by any neglect to comply with the conditions and provisions of the deed. In disposing of this question, it becomes necessary to refer to the testimony and the facts, as stated in the exceptions.
The deed was executed May 3, 1801. The house for the use of the legislature was immediately erected, and its annual session was held therein for that year, but has never convened there for that purpose, since. A county grammar school has never been established or incorporated within the town of Newbury. Those two objects and purposes for which the conveyance was made, are therefore removed. Yet by the erection of that house for that purpose, there was such an acceptance of the grant and trust on the part of the grantees, as made the conveyance perpetual and binding.
As those objects of the conveyance failed, the duty devolved upon the grantees to occupy and improve the building so erected for some moral and useful purpose. And in the discharge of this duty, in order to keep their title perfect under their deed, it was not sufficient that the grantees remained inactive, while others entered upon the promises without license, and used the premises, though for purposes strictly moral and useful. For such possession would be adverse to that of the grantees, and a perfect title to the premises might be acquired by lapse of time against them, by such possession. 1 Saund. 280.
But there must be some positive act on the part of the grantees, *457sas a contract or license, authorising all those in possession of the premises, thus to occupy them under the deed. In other words, there must be a possession and occupancy of the premises by the grantees or those under them, for the purpose of carrying into effect the various objects referred to in the deed, and to such full and absolute extent, as to forbid the use and occupation of any part of the same by others having no right or authority under them. The occupation of the building by the town of Newbury for town meetings can have no effect, to save from forfeiture the rights of the grantees under this deed, as it contains an express provision to that effect. Neither will it have any effect in establishing the title of the town, for such use was contemplated by the parties, as being consistent with the right of the grantees under the deed.
In relation to the occupation of the premises or building which had been erected by the grantees, it was proved, that from about 1809 to 1829, a district school was kept in a room in the building erected for a state house. And the respondents offered to prove that the room was so fitted up as early as 1802, and at the expiration of that period the house had become dilapidated and unfit for use. It does not appear very definitely by what means, or under what circumstances the school was commenced and continued in that building, from 1802 to 1829. Whether it arose from the act of the school district alone, in taking possession of the otherwise unoccupied building, and the grantees under the deed neglecting to interfere with such interruption, or whether the school was established by the grantees, as one of the moral and useful purposes to which they had a right to appropriate' its use and occupancy.
But from the circumstance that the school was established therein so soon after its erection, and the fact that the building was erected and built by the grantees at their expense, it is not unreasonable to presume that the school was established, and the building used and occupied therefor, by the license and authority of the grantees in the deed. The court will not presume any fact, that works a forfeiture of an estate. Such facts must be matter of strict proof, and a seizure and possession once having been proved in the grantees under their deed, such seizure is presumed to continue until a disseizin is proved. Brown v. King, 5 Met. R. 173. We think, therefore, that the title and right of possession of these premises continued in the grantees of this deed, during the period *458that the building erected by them was so used and occupied. In 1829,- the building erected for a state house became unfit for use and went to ruin. It was never repaired or rebuilt by the grantees. But a ne'w school house was erected, as the case states, by the school district in a different place on the premises, and that building was used and occupied by the district from 1829 to 1851. The case is destitute of any facts showing the assent of the grantees under the deed, to this erection and possession of that portion of the land by the district, and also, of any circumstances from which such assent can be presumed, for it is affirmatively found, that it was erected for the school district, and this impliedly negatives any other right. The assent of the grantees, is not to be found, or inferred, from their making no objections to such erection and use, at that, or any subsequent time, or from their neglect to maintain their rights under their deed, against this entry and occupancy; for such assent can be given only, by some positive act of the grantees, or those holding under them, having a majority in interest. And, from the further consideration, that it is by such neglect that a forfeiture of the estate arises, and vests the title, under the deed, in the town of Newbury. Neither can such assent be drawn from the fact, that a majority in interest of the grantees, lived in the district, and sent their children to that school, for the obvious reason, that such acts of the grantees, are such as would likewise naturally occur, if there had been an open renunciation of their right to the premises, and are consistent with an entire abandonment of their claims under the deed. The evidence, therefore, offered by the respondents, in proof of those facts, was properly rejected. To make the erection of that building, and the use of the premises, an act of the grantees, or those holding under them, and done in the exercise of their right under the deed, it should appear, that some distinct and positive act was done by a majority in interest of the grantees, giving such license to the district, and it should be an act of that character, totally inconsistent with the idea of a relinquishment or abandonment of their claim, or right under the deed. The case is totally destitute of any such circumstance or consideration, and we can arrive at no other conclusion, from the facts in the case, than that, that act on the part of the district, was done in disregard of the rights of the grantees under . the deed, and, to the extent of their occupation of the premises, *459was a disseizin in fact. And the neglect of the grantees, or those claiming under them, for five years thereafter to sustain their rights to that portion of the premises, and to rebuild and repair the buildings that were erected by them, aud to use and occupy the same for such moral and useful purposes, as were contemplated in the deed, worked a forfeiture of their estate and interest in the premises, and vested the same in the town of Newbury, to hold under that deed, for an open and public common forever. The erection of that building by the district, in 1851, in a different place on the premises, was, therefore, wrongfully made, and was in violation of the rights of the town of Newbury and the public, under that deed. And though the fee of the premises may be vested in the town, or be private property even, yet if the use and occupancy be given to the public, as a highway, public square, or common, and it has been for a long time used for passing and re-passing, and has been common to all the people, any obstruction thereof, or nuisance erected thereon, may be prosecuted by indictment. Such is the doctrine in the case of State v. Wilkinson, 2 Vt. 480, and in Shaw v. Crawford, 10 John. R. 237, and the premises may be described in an indictment as a public highway. 2 Chitty C. L. 389.
The result is, that the respondents take nothing by their motion.