We think it quite clear that neither the state nor the county gained any title to the land in question by possession. Neither of them claimed any title to the land, and in neither of them was the possession adverse to the rights of the town.
The town, and afterwards the city, which included doubtless a large majority of the tax payers of the town, used the first state-house for about seventy-five years, and the present building for over thirty-five years, without objection, although both buildings were erected mainly by the state and county. It may fairly be inferred that the town, in consideration of its ownership of the land, was permitted to use the building for municipal purposes; and that the building, in consideration of such use, was allowed to be constructed and to stand upon the land of the town. Why the town abandoned the use of it does not appear; but as that was within the memory of living witnesses, we may well suppose that it was not on account of any objection by state or county. If there had been any ejection by legal process or otherwise, an event of that importance would certainly have been shown. Perhaps it is not unreasonable to suppose that the growth of the town rendered the accommodations inadequate, and compelled them to seek accommodations elsewhere. Whatever may have been the reason, we see no indication that the character of the' possession was at all changed. There was no notice of a surrender of a lease, no disclaimer of holding under a license, and no claim that the possession was to be thereafter under a claim of title to the land; but, so far as we know, the possession continued on the same terms as before. Consequently there was no time when there was a disseizin, and no time when the town for any reason could maintain an action of ejectment.- Swift’s Digest, vol. 1, p. 162, says:—“ It is essential that the' possession should be adverse to the right of the owner, and that the possessor should hold the land claiming it as his own and denying the right. of everybody else. There must be an ouster or disseizin of the owner, so that he could have a right of action to recover the possession; *561but where a person enters into possession by license and consent of the owner, or holds it by his consent, recognizing Ms right, as by a lease parol, such possession is not adversary but, in construction of law, is the possession of tire owner; and let it continue ever so long, it will not defeat his title.”
This language is exactly adapted to this ease. We conclude then that the real title to the land, as well as the record title, is in the city.
Has the county any right or interest in the building ? In other words, can the city deprive the county of its use ?
As the city has the rights of both the state and the town, the question proposed involves a consideration of the relations of the county to the state and to the town.
First, as to the state. We have seen that neither had any title to the land. Both had an equitable interest in the building; they in fact owned it in equity so long as they continued to use it for the purposes for which it was constructed. The rights of each were equal in their nature and character, differing only in degree. They were in a sense co-tenants of the building, not occupying as joint tenants, but each occupying separate portions in severalty. The state could no more interfere with the county than the county could with the state. Each contributed to the erection of the building, and each as against the other had a right to the use of a reasonable portion of it. The city therefore acquired no right from the state to deprive the county of that use.
What right did the city acquire by its deed from the town ? Simply the record title to the land, subject to such an easement as the county had. The easement of the state by its deed to the city was merged in the legal title. The easement of the county remained. What was its nature and extent? We answer, the right to have the building stand on the land, that the county might use that portion of it which it had been accustomed to use for county purposes as long as it pleased. This right or easement in our judgment may well rest upon either one of two grounds *562—prescription or estoppel. There was an implied agreement that the land might be used as a site for a state and court house. Pursuant to that agreement the state and county entered and occupied it for more than one hundred and sixty years. And if the use of the building by the town and city be regarded as a sort of ground rent, still there remains nearly fifty years that no such rent was received; and the occupancy of the land has been without question or hindrance.
Under these circumstances, and after the erection by permission of the town of so costly and substantial a building as the present one is, it may well be supposed, a contrary supposition being wholly inadmissible, that the state and county claimed a right to rise the land as they have used it. -Here then are all the elements of a prescription—a user under a claim of right, acquiesced in by the owners of the land for more than fifteen years. This usage however, which is supposed to be founded on a grant or agreement, determines the nature and extent of the supposed grant; for the right granted will be considered to be commensurate with the right enjoyed, and that is, the right to use the land as a site for a state and court house, and for no other purpose. 1 Swift Digest, 159.
We have said that this right may also rest upon an estoppel. The county expended its money on land of the town to provide a building for county purposes, with the knowledge and by the consent of the town. There was at least an implied agreement of some kind. The state and county did not become tenants at will or by sufferance—a tenancy that could be terminated at the pleasure of the town. It must have been understood by all the parties that the arrangement was a permanent one; it was not for a year or for a term of years, but, so far as could then be foreseen, it was for all time. The town, by permitting the erection of a structure of that character and for those purposes, would be clearly estopped from preventing its use for the purposes for which it was intended. And how long was that estoppel to continue ? Just so long as the parties *563intended that the land should he so used—presumptively at the pleasure of the state and county. There is no other rule by which we can limit its operation. The state has determined its pleasure and abandoned the use of the building. The county has not as yet done so. Until it does it cannot be deprived of its right to use it.
Judgment is advised for the defendant.
In this opinion the other judges concurred; Judge Culver, of the Superior Court sitting in the place of Judge Pardee.