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

exercise of sufficient force for that purpose.
If Mr.. Fox, standing on his own ground, MAD
seen Mr.. Walton wantoaly tear down his
fence, open passage, and make an attempt
10 enter his enclosure, he would have had
the right to resist that attempt, with iorce
sufficient 10 prevsnt il. This is the law in
relation 10 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 clr-
cumslance. There are, however, occasions
when private rights are required to give way
10 large public interests. No man is secure
IN his possessions against tho right, coupled
with the necessity of the public 10 make
roads or highways, through ard over the
premises. He holds his fee-simPle title TO
his real estate, subject 10 The ver.Elins right
Of The public in cases oil absolute necessity
for the public welfare. In cases of impera-
tive necessily-as in the march of an army
10 repel a foe--in the progress OF the civil
force of a cou nlTy TO suppress a dangerous
mob--in the risk Of the citizens 10 assist IN
extinguishing spreading iire-no one, !
presume, will doubt that the exisency os 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 lc say, whether the ordinary public
business Of the community, will Justify
simple invasion of private rights under sim.
liar circumstances of impossible highways.
A careful examination Of The principles Of
law applicable TO such cases, together with
reference 10 decisions bearing on the subject,
has induced me 10 answer in the aiir NATIVE.
a,i of the opinion, aud lay it 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 co.e and make therein a
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 a recent PERIOD
In 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
man's close next adjoining" In treatise
on the obstruction of highways found in the
Law Library, it is SAID, "Wnh respect to a
highway, it seems 10 be quite clear tha, if
"there be any obstruction, the passengers
s'may go over the adjoining land. They may
"remove any illegal, improper, or inconveni-
! Gent interruption, but if the ordinary track
ebe SO dangerous as TO compel them to leave
'the road, they may go crtra vian', passing
"as nearly 10 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:
"Hiehways are governed by different prn-
"ciple. They are for the public service, and
elf The usual track is impossible, it is for The
general good that people should be entitled
Ito pass in another line" These decisions
have never been overruled. # is unlorlun-
ale, perhaps, that the Supreme Court of this
Stale, when the question was fairly before
them, in the case Of Holden VS.. Cole, did
mol definitely determine the rights o: parties
in relation to This issue; but in that case it 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 Stale, that where supervisors
have opened road or highway, even upon
ground where il was not located, they have
70 authority 10 relocate it, in order 10 place
it on what might be supposed lis recorded
site. "The authority" says the court, Gun.
''der all order 10 open, is exhausted by The
''aclon of those 10 whom it is directed, and
"cannot be resumed. The road once laid
"cannot be altered except by new and an
"original proceeding according 10 the road
claw" The court further say at the super
visors have no authority even en- the ground
of sudden necessity. 10 open route for The
public, through private property, till a 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,
WHcio the Juu5o pClo" cApiceseu tHo Opiiiou
in his charge 10 the Jury, that where public
road should become impossible, The owner
of the land adjoining would have 10 submit
10 temporary Inconvenience, for the benefit
of the public, the Supreme Court simply
withhold their opinion on The 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 it was left by the storm of the 18th of
January, MIR. Wilson would have had the
right TO pull down the fence of MIR. Fox and
TO have entered the close 10 pass round the
obstruction in the highway. Enjoying this
right as case Of necessity, Mr.. Fox could
Eo legally have intercepted him, and would
have been guilty of an assault and battery if
be had used force 10 prevent him. The abso.
lutte necessity of The case would have chang.
ed the rights of the par,ies. Here, however,
the case assumes a new aspect. MIR. Fox
had been laboring 10 open the road for sew