The public had been in the quiet and uninterrupted use of the way in question as a public highway for a period of nearly fourteen years next preceding the commencement of proceedings against the defendant, and their user appears in the case without any explanation on the part of the owner tending to rebut the inference of a dedication of the way to public use as a highway. Evidence arising from these facts was mainly relied upon by the state, in the court below, to prove the existence of the highway in question by dedication when the defendant committed the acts complained of.
It was conceded on the trial that the way was not legally laid out by the town as a highway, although it attempted so to do in 1855. During that year the selectmen - of the town laid out the way, and their action was approved and ratified in town meeting, but the warning for the meeting did not state that the voters of the town would be called upon to act on the matter; and the doings of the town meeting were therefore inoperative, The counsel for the state admitted these *399facts in the presence of the court when objection to the evidence was made, and therefore the technical error committed by the court in allowing the action of the town meeting to go to the jury to be considered by them in connection with the warning, after stating to them that it was necessary in order to establish a legal lay-out of the way that the warning of the meeting should contain a notification of such proposed action, could not have injured the defendant. The court ought to have excluded the evidence from the consideration of the jury, but we are satisfied that the action of the court under the circumstances must have been harmless, and therefore a new trial should not be advised on account of the technical error of the court in this particular.
The action of the selectmen and the doings of the town upon this subject were further offered in evidence to show a dedication of the way to public use as a highway; not that the town voted directly to so dedicate the way, but that their action in accepting the doings of the selectmen in laying out the way had that effect. The charge of the court upon this point was favorable to the defendant, provided the town was the owner of the land over which the way was attempted to be laid.
It is manifest that the town supposed it was the owner of the land, for when the selectmen laid out the way they cited no parties before them to be heard in relation to the matter; neither did they appraise any land damages to any one on account of the way, but they acted precisely as they would have acted if the town was the owner of the land.
The state claimed upon- the trial that the town was the owner and offered record evidence to that effect, and the court decided the question, pro formd, in favor of the state ; but whether the claim of the state and the decision of the court were correct upon this question we deem it unnecessary to determine, for we think it clearly appears that the jury must have found that the way was dedicated to the public for a, highway by whomsoever was the owner; and therefore the decision of the court upon this question could not have injured the defendant, whether the town was the owner of the *400land or not. If the ownership of the land was in the proprietors of the common and undivided lands of the town, as the defendant claimed, it is manifest that the evidence of a dedication of the way by them to public use as a highway, arising from the long continued and uninterrupted use of the same by the public as a highway, without any explanation of the use consistent with non-dedication of the same, was as strong and conclusive that they had so dedicated the way, as it would have been that the town had so done provided the land had belonged to the town. We think it therefore a matter of no importance in this case whether the town or the proprietors were the owners of the land, for the jury must have found, under the charge of the court upon this subject, that the land was dedicated to the public for the purposes of a highway by whichever of these parties may have been the owner.
We are not called upon to consider the weight of the evidence. It was clearly admissible, and important to be considered by the jury upon the question of dedication, but whether it was strong enough to justify the jury in coming to the conclusion they did is no part of the present inquiry.
But it is said that the court misdirected the jury in the charge upon the question of dedication. That part of the charge complained of is as follows : “ Where land has been thrown open to the public for a great number of years, for a' time whereof the memory of man runneth not to the contrary, and the general public have during all of that time used the same as a public highway, the presumption of an original dedication is almost irresistible ; and if you are satisfied, as the attorney for the state claims, that there was an ancient public highway running in substantially the same place as the present highway, on which the claimed obstruction stands, and that the same has been used by the general public as a public highway, then an original dedication may be inferred,” &c.
It is said that the expression, “ the presumption of an original dedication is almost irresistible,” gave the jury to understand that this was so as a matter of law and not as a matter *401of fact. But we think the jury must have understood the court to mean by the expression that the force of the evidence on the question of fact for them to consider was almost irresistible in the opinion of the court, for in the latter part of the charge quoted, and in other clauses of the general charge, the court expressly submits to the jury the question of dedication as a question of fact. We see in this objection no substantial cause for a new trial, although the language of the court was doubtless unfortunate. Great care should be taken in submitting questions of fact for the consideration of the jury. They should be clearly stated, so as not to be open to objections of this character.
Great reliance seems to be placed by the defendant for a new trial upon the vote of the town, passed in town meeting on the first day of February, 1677, in which it is declared that the land over which the highway in question runs shall lie common, and shall not be used for any other purpose without the consent of every individual proprietor. It is said that the vote estops the town from claiming any interest in the land, and repels any inference of a dedication thereof as a'highway on the part of- the town or of the proprietors.
It is difficult to see what foundation there is for this claim, so far as it applies to the case tried by the court below.
If the land belonged to the town, the inference of an acknowledgment by the vote that the land belonged to the proprietors could not estop the town from subsequently claiming the land and dedicating it to public use as a highway. If the land belonged to the proprietors, the vote of the town was nugatoi’y. On a question of ownership, whether in the town or proprietors, the vote might be important evidence for the proprietors; but we have seen that that question is not necessary to be determined in this case. The use of land as a public" common is very different from the use of a way as a public highway. The uses have but little in common, and we think the court did not err in refusing to charge the jury as requested by the defendant, that as a matter of law the use of the land as a common rebutted all inference of a dedication of the way to the public for the purposes of a *402highway, arising from the use of the same as a highway. The question was one of fact for the jury to determine from all the facts and circumstances of the case.
On the whole we are satisfied that a new trial ought not to be advised.
In this opinion the other judges concurred.*
This case and the remaining cases of the term were heard at an adjourned session, at which Judge Pardee of the Superior Court sat in the place of Judge Poster, who was absent.