The plaintiff claims a right of way as appurtenant to two lots of land, one deeded to his ancestor in title in 1856, as to the location of which there is no controversy, and another which he *Page 123 claims by virtue of a deed dated 1853. There was no evidence where this earlier lot was located, nor of any occupancy of any land under the deed. The defendant's claim was that the deed of 1853 was of a part of the land covered by the later deed, and the description and the subsequent conduct of the parties tend strongly to support this theory. But as the plaintiff has failed to show its location, no further consideration of the question is necessary.
The deed of 1856 recited that the land sold bounded upon "a new street called Vernon street laid out by said company across their land called the Folsom farm." The evidence tended to show that at this time there was a traveled way leading past the granted premises, on toward a bridge across the river in Lake Village. There was then no public highway leading to the plaintiff's land, but one was laid out in 1859. A plan of the locality made by the Lake Company in 1858 shows a street along the way as claimed by the plaintiff. There was no evidence that this plan was ever published or recorded. The plaintiff and his ancestors have used the way more or less continuously since 1856; but in 1865 the occupant of the land nearer Lake Village fenced up the way, maintained a gate which was closed except during the working time at the mills situated there, and also erected a building across the way. Many other obstructions were erected at later dates.
Upon this evidence the defendant's motion for a nonsuit should have been granted. No way by estoppel is shown, because there is no evidence of the extent of "the Folsom farm." The only representation in the deed was that the grantor had laid out a street across that tract. Assuming that this is a sufficient representation of the existence of the way to raise an estoppel, its application to the locus is not shown. To take any benefit from the recital, the plaintiff must show that the way he claims comes within that described in the deed. He has not done this, and for aught that appears in the case the Folsom farm may not extend further in an easterly direction than the line of the lot purchased by his ancestor. The plan of 1858 comes to nothing, for there is no evidence that there was any dedication of the streets shown thereon; and as it was not made until after the plaintiff's lot was sold, the purchaser could not have relied upon it.
If the way in use in 1856 was then one of necessity, it ceased to be such when the highway was laid out in 1859. Abbott v. Stewartstown, 47 N.H. 228,230. Nor is a way by prescription shown, for *Page 124 the use was interrupted in 1865, and the way has not been open since except at the pleasure of the holder of the estate over which it passes.
Exception sustained.
All concurred.