By ancient usage in this commonwealth, as well as under the authority of provincial statutes, (St. 4 W. & M. c. 12, Anc. Chart. 247, 248, and St. 12 Anne, c. 2, Anc. Chart. 402,) proprietors of common lands had authority to alien their lands by votes; and such votes, when duly proved by record or otherwise, are deemed to be competent and sufficient proof of title and seisin, and, like deeds duly acknowledged and recorded, in the absence of other evidence, they raise a presumption that the proprietors had sufficient seisin of the premises to enable them to convey, and to vest the legal seisin in the grantee. Springfield v. Miller, 12 Mass. 415. Green v. Putnam, 8 Cush. 21. Ward v. Fuller, 15 Pick. 185. Therefore, by the production of the vote passed by the “ commoners of Gloucester,” January 4, 1732-3, the demandants established *14a title to the estate or common land therein named and described.

But it is now urged in behalf of the tenant that the court erred in refusing to give the instructions to the jury for which he asked at the trial. It seems to us, however, that his prayers for instructions contained two unfounded assumptions. One was, that the vote of the proprietors offered by the demandants was neither competent nor sufficient evidence that they owned any land comprehended within the designated boundaries. This is clearly erroneous. In the absence of controlling evidence, as has been already said, it was proof of both title and seisin. The other erroneous assumption is, that there was no evidence of title or ownership in the commoners except the vote. But there was evidence introduced by the demandants to show the location of the granted premises, the existence and position of the houses specified in the vote, and of the highway named therein, lying easterly thereof, and also to prove that at the earliest period to which the memory of living witnesses extended — upwards of seventy years — there was a tract of land between the lots occupied by said houses, and thus answering to the description in the vote, which was open, uninclosed and lying in common. Now it is doubtless true that the vote under which the demandants claimed title did not purport in terms to convey all the land lying between the designated boundaries, but only the common land there situate. It was therefore necessary for the demandants, in order to recover, to apply the description in the vote, and to ascertain by evidence the extent and position of the land granted, and to show that it embraced the premises described in the writ. The evidence above adverted to tended to supply this proof. It not only established the position of the two houses named in the vote, thus fixing two exterior lines of the premises granted, but, by proving that the land there situate was not occupied in severalty by any one, but remained open and unfenced, the evidence tended to identify it as land which was lying in common, and in this respect corresponding with the description in the vote. Such evidence, in cases of ancient writings and titles, is not only competent, *15but from the nature of the case necessary, in order to ascertain the subject matter of a grant or conveyance. The practical construction as to extent and boundaries must in such cases be shown by the occupation or mode of use of land. As such, it is a question of fact proper to be submitted to the determination of a jury. Codman v. Winslow, 10 Mass. 146. In the present case, the instructions under which the case was put to the jury required them to find that the premises described in the writ, or some part of them, were comprehended in the vote of the commoners on which the demandants relied. They were told, in substance, that such evidence was necessary in order to entitle the demandants to a verdict. These instructions were certainly correct and well adapted to the facts in proof. But the instructions for which the tenant asked, so far as they went beyond those which were adopted by the court, were erroneous and calculated to mislead the jury, and were rightly rejected.

Exceptions overruled.