The ground on which the defendant reeks to justify the acts of trespass alleged in the declaration is certainly novel. Since the first organization of the militia of this commonwealth under the Constitution, c. 2, art. 10, no right to use private property, in time of peace, without the assent of the owner, for the purpose of parading, exercising or training troops, has ever heretofore been recognized or asserted. On the contrary, we believe the uniform usage has been to perform these duties, when required by law, either in the streets and highways, and upon the public commons and training fields, or upon the land of individuals under express license from the owners. No new power is conferred on officers of militia by Sts. 1849, c. 218, and 1851, c. 302, authorizing them to designate the places where the military duties therein prescribed are to be performed. Similar authority has long been vested in commanding officers. St. 1809, c. 108, §§ 18, 25. Rev. Sts. c. 12, § 78. The defence is therefore not maintained by usage or upon precedent.

It is equally without foundation in principle. The defendant claims the right, as commander of a division of militia, to designate, at his discretion, the land of any individual, lying within the limits of his command, which he may deem suitable for the purpose, as the place for holding an encampment authorized by statute, and, without the assent of the owner, to take possession of and occupy the land so designated for three successive days, at any time “ between the middle of July and the middle of October in each year,” with the entire body of troops under his command. Sts. 1849, c. 218, § 1; 1853, c. 174, § 1. Nor is this the full extent of the claim. If he has the right so to occupy the land, he can exclude the owner from it, as well as all other persons not belonging to the troops so assembled because he is expressly authorized, “ when on duty, to ascertain and fix necessary bounds and limits to his parade, within which no spectator shall have a right to enter.” Rev. Sts. c. 12, § 80 Such exclusive occupation of land necessarily includes the pos*363session, for the time being, of all the crops and other property on the premises, the damage to which, occasioned by a large body of men assembled for the purpose of being there exercised according to the statute, “ in the whole routine of camp and field duty,” would not be very slight or immaterial. Nor is it to be overlooked, if this right exists, that there is no limit to its exercise, by which to restrain an officer from annually designating the same premises, and occupying them for the same purposes for any number of successive years. The statement of such a claim is sufficient to refute it.

This therefore is not a case where there is a right to an incidental, temporary or occasional use of private property, rendered necessary in the performance of a public duty, and where the beneficial possession of the owner is not substantially interfered with, as is the case in entering on land for the purpose of making surveys for highways or railroads, or in perambulating the boundaries of towns. But it is a claim to an exclusive appropriation, to a specific public use, of the property of an individual, for a distinct period of time, depriving the owner of its actual possession and enjoyment, and exposing it to necessary and essential damage. Such a right cannot be exercised except under the authority of the legislature, expressed in clear and distinct terms, or by necessary implication, and with suitable provisions for compensation to the persons whose property may be so appropriated or injured. Declaration of Rights, art. 10.

There is nothing in the statutes under which the defendant acted, which conferred on him any power thus to appropriate private property. His acts were therefore wholly unauthorized and without justification. Judgment for the plaintiffs.