The star of the north. [volume] (Bloomsburg, Pa.) 1849-1866, 1857-05-20

If Mr.. Fox, standing on his own ground, had
seen Mr.. Walton wantonly tear down bis
fence, open passage, and make an attempt
10 enter his enclosure, he would have had
the right to resist that attempt, with force
sufficient 10 prevent it, This is the law in
relation TO the rights of property, and no
prosecution for an assault, or an assault and
battery, could be maintained against the
owner or possessor. Of land under such elf
cumslance. There are, however, occasions
when private rights are required TO give way
to large public interests. No man is secure
IN his possessions against The right, coupled
with the necessity of The public TO make
roads or highways, through ard over the
premises. He holds his fee.simple title 10
his rea! estate, sah;ect 20 the oysr-tn!ug fsbt-
for the public welfare. In cases of impera-
tive necessity-as in the march OF an army
10 repel foe-in the progress OF the civil
force of cou nry 10 suppress a dangerous
mob-n the risk of the citizens to assist IN
exlingushing a spreading fire--no one, !
presume, will doubt that the exigency Of the
public interest would override private rights,
and would authorize, where the highway was
rendered impossible, the pulling down Of
fences, and entering of enclosures, even
against the command of the owner Of the
premises. 1t is indeed question of nicer
balance 10 say, whether the ordinary public
business of the community, will justify a
simple invasion of private rights under sim
liar circumstances of impossible highways.
careful examination of the principles OF
lew applicable TO such cases, together with
reference 10 decisions bearing on the subject,
has induced me 10 answer in the affirmative.
alh Of the opinion, and lay il down as the
law, that where public highway is wholly
impossible, as in the case of The storm in
January last, the citizens lave the right 10
enter an adjoining close and make therein
temporary way, for the transaction Of the or
dinary business of the community. This
opinion is sustained by decisions Of the En-.
glish Courts so long back as the second
Charles, and coming up 10 recent PERIOD
ln one case have before me, it is stated
that "if way be so foul as is not passable,
may then justify the going over another
mans close next adjoining" In ,realise
on the obstruction of highways found in the
Law Library, il is SAID, "Wilh respect 10
Highway, it seems 10 be quite clear that if
"lhere be any obstruction, the passengers
sosss go or! yHpJ'slJugIng isnrtz TueY@spaY.
"remose any illegal, improper, or inconveni-
Gent interruption, but if the ordinary track
"bs SO dangerous as 10 compel them 10 leave
''lhe road, they may go extra ciaw, passing
Gas nearly TO the original way as possible"
Lord Mansfield, in the case of Taylor VS..
Whitehead, after speaking of private ways,
lays down The same principle in these words:
Highways are governed by different prn-
"ciple. They are for the public service, and
''if the usual track is impossible, it is forthe
''general good that people should be entitled
rto pass in another line" These decisions
have never been ovenuled. fl is unforluu-
ale, perhaps, that the Supreme Court of this
State, when the question was fairly before
them, in the case of Holden vs.. Cole, did
not definitely determine the rights o: parties
in relation 10 This issue; but in ,ha. case il is
quite clear they decided nothing adverse TO
the principle above laid down. II was there
determined, as it has been by repeated de-
cisions in this State, that where supervisors
have opened road or highway, even upon
ground where il was not located, hey have
20 authority 10 re.locate il, in order 10 place
it on what might be supposed its recorded
site. "The authority" says the court, Gun.
s'der an order 10 open, is exhausted by the
"acton Of those 10 whom il is directed, and
"cannot be resumed The road once laid
"cannoi be altered except by a new and an
"original proceeding according 10 The road
Claw" The court furher say th at the super
visors have no authority even en- the ground
Of sudden necessity. to open route for the
public, through private properly, till road
can be regularly laid out; but they refuse to
aver that the rights Of individuals are restrain.
ed in the same manner. On the contrary,
where the Jndge below expressed the opinion
in bis charge TO the Jury, that where public
road should become impossible, the owner
of the land adjoining would have 10 submit
TO temporary ioconvenience, for the benefit
Of The public, the Supreme Court simply
withhold their opinion on ibe point, without
any disaffirmance of the decision below.
You will see, from these observations.
that had the road in question been blocked
up when this controversy occurred, in the
way Il was left by the Storm Of the 18th of
January, MIR. Wilson would have had the
right 10 pull down the fence Of Mr.. Fox and
TO have entered the close 10 pass round the
obstruction in the highway. Enjoying this
right as a case Of necessity, Mr.. Fox could
Eo legally have intercepted hmm, and would
have been guilty of an assault and battery if
he had used force 20 prevent him. The sbso.
lutte necessity of The case would have chang.
ed the righ,s of the parties. Here, however,
the case assumes . new aspect. MIR. Fox
had been laboring to open The road for sew
eral days, and had succeeded in cutting a
passage through the snow bank, through
which several slelshs had passed when Mr.
| .Waon arrived. The Temporary blocking up
ofthe way was thus opened, by broken sled,
| L.. ~f - r