The instructions were correct on all points, except those given in relation to the alleged change of the course of a previously existing way by the substitution of a new route over a corner of the land which belonged to Cheney in 1835, and which is now owned by the plaintiff. There was a defect in the instructions on this point. The attention of the jury was not drawn to the important consideration, that such substitution could not be effectual without the assent, express or implied, of Cheney. Although it appears that Cheney made no objection to the location and substitution of the new route, yet it does not appear that he knew it passed over his land. Indeed, there is direct evidence that Clapp, his grantor, in locating it, intended that it should pass outside of the lot which he had conveyed to Cheney. In this belief, the latter might well keep silent. No inference can be drawn from his silence, that he intended to permit a new route to pass over any part of his land.

In this aspect of the evidence bearing on this part of the case, the jury should have been instructed that if they found that there was a previously existing way by prescription, as claimed by the defendant, and the course or route of such way was changed in the year 1835 so as to pass over a corner of Cheney’s lot, such right of way would still continue over such new and substituted route, and be a valid, existing way, as against the plaintiff, if the change was known and assented to by Cheney, under whom, by mesne conveyances, the plaintiff holds his title; but that without such assent the way could not be claimed to exist o'\ t the plaintiff’s land, unless it had been acquired by Averse use since 1835. Such an instruction was especially necessary, inasmuch as the plaintiff’s counsel had requested the court to rule that “no designation by Clapp of a new or *532substituted way upon land which he had before sold to Cheney could have any effect to create such substituted way.” Clearly it could not, unless with the assent, express or implied, of Cheney. Exceptions sustained.