The plaintiff’s land is bounded, on its westerly side, by the land of Joseph C. Wooldredge; and the land belonging to the latter is bounded on its easterly side by á passage way situate between the dwelling-houses on their respective estates. They disagree in relation to the extent and width of this way; and this disagreement constituted the subject of inquiry, and was the chief point in controversy upon the trial of this action. The question respecting which the parties were thus at issue was a mere question of fact; its determination depended wholly upon the effect to be allowed to the evidence in the case, and the inferences justly to be drawn from it, and not at all upon any contested construction of the contents of the several deeds which they had respectively produced, concerning which no difference of opinion appears to have been entertained or expressed. It was a matter therefore strictly within the province of the jury, and was of course very properly left to their decision.

The defendant contended that the way by which the estate of Wooldredge was bounded was located in the same place, and was of the same width and extent, as the passage way mentioned in the deed from Daniel Felton to John Nutt, under whom both the parties to this suit derive their titles. For the purpose of proving the locality, and the space which the last *65mentioned way occupied, he was allowed to introduce the deeds of Felton to Nutt and to Felton Jr. This was correct; for the existence, extent and width of that way constituted a part of the facts essential to the maintenance of the defence relied upon. And in reference to those deeds, and to all the evidence having any bearing upon the particular question upon which the parties were at issue, the jury were rightly instructed that if a passage way, marked and distinguishable on the ground, was in fact actually laid out there by Daniel Felton, and if that was the same passage way which is referred to in the several deeds from Nutt and his assigns to Wooldredge, the plaintiff’s estate would not extend beyond its westerly side, but would be defined and limited by it. Under such instructions, it is obvious that whatever tended to establish the precise locality and exact extent of the way laid out by Felton must have been admissible as competent and pertinent evidence.

The law in relation to the rights of tenants in common was accurately stated by the presiding judge. But as no such tenancy was shown to have at any time existed in which the parties had any interest, although the law upon that subject seems to have been somewhat considered and discussed, the principles laid down by the court had no bearing upon the final decision of the case, and of this the jury were fully and satisfactorily advised. Whatever was said upon that subject therefore affords the plaintiff no just cause of complaint.

As the right of way belonged to Wooldredge, it was lawful for him to do any work upon its surface, which was necessary, fit and proper to be done there to enable him to use and enjoy his right in it in a manner beneficial and advantageous to himself, provided be did not thereby make any material change in the state and condition of the soil, or disturb or interfere with the estate or privileges of other persons therein. For this purpose and within this limitation, his acts in the preparation, repair or improvement of the way were justifiable, and could not be treated or resisted as a trespass by an owner of the land who held it in fee subject to such an easement. Appleton v. Fullerton, 1 Gray, 186. This is the right of Wooldredge ; and if the *66defendant, acting under his license and authority, did in no par ticular exceed it, he was not liable to the plaintiff for any dam age alleged to have been done by him. The instructions given to the jury upon this subject were to this effect, and were consequently unobjectionable.

Exceptions overruled