As the title to the lands claimed by the complainant and respondents respectively is admitted, no question arises as to the first issue.
Whether the facts reported amount to proof sufficient to maintain the second and third pleas, or either of them, must depend upon an examination of dates and the order of the proceedings of the proprietors, in relation to the division of the township, and the building of mills on lot No. 7, in the 3d range, which is now owned by the respondents.
Nov. 1, 1773 the proprietors voted to draw the lots for a division of the township and chose persons to draw the lots. January 5, 1774, they voted that the proprietors names be recorded in the several lots on the plan of said township ; and in the record of December 1, 1780, mention is made of the whole township having been lotted out into lots, and allotted to each proprietor, and of their having holden their lots in severalty and thereby increased the settlement. No other division was ever known to have been made; and it seems the plan is lost. Such being the facts, the inquiry is, whether the proprietary proceedings, detailed in the report, furnish proof of an agreement on the part of the complainant, or those under whom he claims, of a consent that the complainant’s lot might be flowed for an agreed price, or witiiout payment of any compensation; or, in oilier words, whether the votes of the proprietors are to be considered, in respect to the building of the mills, as binding on the successive owners of the other lots in town. By the report it appears that the first vote relating to the building of mills was passed April 20, 1774. The second vote on the subject was passed August 11,1774, appointing a committee. The next vote was passed August 3.1, 1774, offering further encouragement to any person that would un
How then stands the case ? Admitting- the contract with, and deed to Lemuel Jackson, to amount to a license to him, and those, claiming under him to flow lands belonging to the proprietary, without payment of damages, this will not avail the respondents, because, as we have before stated, all the township, except the mill-lot, had been divided into lots and was holden in severalty, (so says the record of December 1, 1780,) for several years prior to the conveyance to Jackson. According to this record, lot No. 10 was not common land in March 1783; it belonged at that time to some person whose title thereto is admitted to be in the complainant. Being holden and owned in sev-eralty, it was not subject to any proprietary control, more than if it had been situated within the limits of another township. These are plain principles, and they settle the question before tire Court. It has been urged, that for a series of years prior to the division and allotment of the proprietary lands, there was an understanding among all concerned, that the-mill lot should be reserved for the purpose of having mills erected thereon for the general convenience; and that
Accordingly it is the opinion of the Court that the verdict must stand ; and a trial be had as to the fourth issue according to the agreement of the parties.