The opinion of the court was delivered by

It appears, that the plaintiffs had given the town of Rockingham a bond, to build the road for $1 50 per rod; and of course, it became necessary to ascertain how much of the road was in the town of Rockingham, as that regulated the amount for which the plaintiffs should recover; and to determine this, it became important to fix the line, between Rockingham and Grafton.

The charge of the court, that if the stone wall had been recognized by the adjoining proprietors, for a period of twenty years, as the line of the town, the plaintiffs were entitled to recover for all that portion of the road, which lay east of the wall, cannot be sustained. The line of the town, is not to be settled in that way. If the charge had been, that the towns had recognized the wall as the line of the towns for a period of twenty years, it would have been well enough; but the acts of adjoining owners, cannot in law bind the towns, and by the charge of the court, this was made conclusive.

It has been said in argument, that at all events, this case should not be opened though, the charge is wrong; and that the survey of the road, gives the number of rods laying in Rockingham, and *648that the town is estopped by the survey, and its acceptance by the County Court, from denying, that the survey was correct, as to the number of rods of the road in Rockingham. Be that as it may, the case shows, that the recovery was according to the charge of the court, and that gave an incorrect rule for assessing damages, and there is nothing in the case to show, that damages assessed by the jury, were the same as they would have been, if they had been governed by the survey, as contained in the commissioners’ report to the court.

We cannot find from the-whole case, that no injury was done to the defendants from the erroneous charge of the court, and the judgment must be reversed.

Judgment reversed and new trial granted.