The Massachusetts spy. [volume] (Worcester [Mass.]) 1821-1823, 1822-04-24

The opinion Of the Court was delivered by
PuTxAM, J. and was in favour of the plain
tiff on both points. He observes,-
:. The principal question intended TO be pre-
sented in this case is, whether the people of
this Commonwealth have a right to use the
lands for the purpose of grazing, which have
been laid out as highways. hold it to be
clear that the publick have no other right but
that of passing AMI re-passing and that the
title TO the land, and all the profits to be de-
rived from it, consistently with, and subject
TO, the right Of way, remain in the owner of
the soil. The owner may maintain trespass
for any injury to the soil, which is not incident
al to the right of passage acquired by the peo-
pie. The land covered by a highway may
be recovered in ejcctment.'
After citing and noticing several authorities
in point, the Judge proceeds thus:-
6 1t is not lawful therefore for the publick to
put their cattle into the highway to Craze.
For Wherever one would justify taking the
property Of another, in virtue of license or
or CT a way, he must plead and prove that he
pursued the authority, or used the way as
way, and not for any other purpose.'- In
the case at bar, the defendant put his cat
tie into the way to Craze, and not merely
to pass along the way. All the injury, which
is necessarily done by the passing, all the in
voluntary damages done by the traveller,
must be borne by the owner of the soil. But
he's entitled to damages for the exccss.''
Tho Judge then notices the argument
drawn, by the defendant, from the Statutes
passed on the subject Of cattle, &c. going at
larc.a aod ram arLs
sWe have seen how clear the common law
is upon this subject, and that it has been a.
dopted here. Now if the legislature intend
ed such material alteration as has been con-
tended for, is it to &c supposed that they
wsald rot have expressed themselves clearly,
and not merely by doubtful implication? But
did they mean to touch rights protected by
the common law? may ask another ques-
tion---Could they do so, if they were dispos-
cd, (Which is case never to be supposed
without. making compensation to the owner
Take the case Of a fruit tree standing in the
road, but in situation to afford a convenient
shade to the traveller, an ornament and not
nuisance to the way, and yielding an annual
profit to the owner of the soil. Now the leg
islature might, il they thought it expedient,
provide by law that for the future the soil of
ali highways that should be laid out, should
be vested in the publick, and compensate the
owners accordingly. But what constitutional
right would they have to diyest the owners Of
the soil of rights remaining, in respect to ways
Heretofore laid out ?''-H Upon consideration
OF the whole matter, we are of opinion that
the common law doctrine has been adopted
in this Commonwealth, and continues unal-
tered by statute. The defendant, therefore,
cannot justify tuning his cattle into the high
way for the purpose of grazing be having no
other right there but ofpassage remain
lug question is, whether the owner of land,
adjoining highway, unfenced, may maintain
trespass against one, who had put his cat
tie into the highway to Craze, because the
cattle escaped into the adjoining land, and
there ate the plaintiffs grass. And we are of
opinion, that such action may well be MAIN
tained."-" In Doraston ys. Payne, Justice
Butler states the question, whether trespass or
not, 10 depend on the fact whether the de.
PENDANT was passing or using the road as a
highway, or whether the cattle were in the
road as trespassers. This depends upon a rule
of the common law well settled, that man
is not obliged to fence against any cattle, but
such as may be rghtfully on the adjoining
close. The statutes of this Commonwealth
A"FC uot aAACtSU dlat tuiC dllu CLOSES, WHICH
are adjoining the highways, arc left as at COM
mon law. Now the cattle Of the defendant
were not rightfully in the highway for the pur-
pose Of grazing. If they had escaped from
the owner, without any default on his part,
he could well have justified. But in such
case, he must plead that the beasts were in
his view, and escaped, and that he made
fresh pursuit. If man will leave bis land
apfenced against the highway, he must SUBJ
init himself TO bear all the casual damages,
which may arise involuntarily on the part Of
travellers. But those who use highways are
not to convert the right of passing into right
to take the heritage, which belongs to the
owner Of the soil.--Defendani's pleas ia bar
Gdjudgei bad.''
From this decision of the Court it will be
easily understood that the principles settled
by it are these -
+" The prtbEick haze no rights in an htgh,coy,
bM a right 10 pass and repass thereon. they
Cannot, therefore, justify turning their cattle.
thereon, for The purpose Of grasing. And If
cattle, so on the highway, for he purpose of
grazing, escape INTO The adjoining close, the
Otener Of hte cattle cannon qrdii himself of the
ansa9iciency Of The .fe,.css, in excuse Of the
'trespass.n
From The Boston Erening City Gaseite.l