The plaintiff was the owner in fee of the close upon which the alleged trespass was committed. The defendant had only an easement in this close, to use it in common with the plaintiff as owner of the land adjoining. The defendant *42had no title in fee, and although he had a right, by virtue of his easement, to enter upon the close, yet if he used the close for a purpose not within the terms of his easement, he thereby exceeded his license, was unlawfully upon the land, and liable to an action by the plaintiff as owner of the fee for such trespass. Davenport v. Lamson, 21 Pick. 72. O'Linda v. Lothrop, lb. 297. Appleton v. Fullerton, 1 Gray, 192, 194. In Eames v. Prentice, 8 Cush. 337, and Merriam v. Willis, 10 Allen, 119, cited for the defendant, in which it was held that an action of trespass for breaking and entering the plaintiff’s close could not be supported by proof of taking and carrying away goods only, no unlawful use of the land itself was proved.

The defendant has no just cause of exception to the manner in which the case was left to the jury. The defendant’s right of use was well defined by the presiding judge as one which was to be exercised reasonably and in 'such mode as to be consistent with the similar use by the plaintiff; and the question whether the acts proved came within this definition was rightly submitted to the jury as a question of fact. We may add that if the question were one to be decided .by the court, we should have no doubt that building a pig-pen over the well and digging a large hole in the ground were acts inconsistent with the common use of the close by the parties, and therefore, even if there were any doubt of the propriety of submitting the question to the jury, it has been rightly decided, and the defendant has sustained no injury. Ricker v. Cutter, 8 Gray, 248.

Exceptions overruled.