By the Court*

The plaintiff claims to be entitled, by the terms of his deed from Boyden, and Boyden’s deed from Davis, to a street on his westerly boundary sixty feet wide, being the width of Park Street as originally laid down on Butman’s plan. The words of the deeds, “ westerly on Park Street,” would seem to imply that there was a street there of that name; and whether there was such a street in 1844, when these deeds were made, was a question for the jury.

In order to be a street, it must be open and appropriated, and adapted by the public or the owner for the purpose of travel, so that a person passing over it while it was open would not be liable for a. trespass. If it had been once opened as a street by a former proprietor, but afterwards a large tract of land, including the street, had been sold as one parcel, and the street closed up, before any house lots were sold, (as on the evidence reported the jury must find,) then the deed amounted to an implied covenant, and a grant, if the grantor owned it, that the grantee should have a right to a convenient street and passage way. There would be nothing, in that case, to designate or limit the dimensions of the way thus granted by implication; but it must be presumed that some way was intended, for the purposes of passing, indicated by the use of the word street; and the law Would imply a way, necessary and convenient to accommodate the grantee in the use of the land granted, to the extent granted, of one hundred and fifty feet.

If the exhibition of the plan by Davis to Boyden was admissible, by way of showing what the parties intended by the use of the term “ Park Street ” in the deed, it was in the nature of a representation; and declarations made at the same time, qualifying such representation, ought to have been admitted.

New trial granted.

Thomas, J. did not sit in this case.