The two rulings asked for were properly refused.

1. It was impossible to lay down as a rule of law that the town would have notice of a defect in the structure, if the cesspool was in fact defectively built, and was put in by others than by the town itself. That was a question of fact.

2. The fact of the existence of a private cesspool within the limits of a public way is not decisive of negligence on the part of the town. Many uses may properly be made of land within the limits of a public way, and beneath the surface thereof, which are not inconsistent with the public easement.

^Exceptions overruled.