The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1859-08-03
For the RePister.

For the Register.
MR, EDITOR I'm the last number Of
the Register we fnd an article, written,
no doubt, with a view to throw light
upon the subject Of the rights of individ.
ual owner of the land trough which
highways have been laid out, and also to
define the rights which the public have,
and may enjoy, connected with the here
tofore customary right of individuals to
allow their cattle &c., to run at large up
on the highway.
The position of the writer, (who ever he
may be) seems to be, that the good people
Of this State are to regard the common
law rules as applicable, and governing,
and that this is confirmed by the Statute
of 1858. We are inclined to think other.
wise, and although he processes to have
good authority, we think none Of it hits
the case, or is applicable to the point
aimed to be established, viz: shat the
owners of the soil may msintai1 trespass
against any individual, who allow. bis
animals to run in the highway adjoining
his (tbe owners) land.
The authorities cited, with the exception
of that in the Sd of Vermont Reports,
page pa, are all, no doubt, opinions
given in States and localities where the
common law only prevailed, and had not
been infringed Upon by custom or statute.
This is true Of Massachusetts, and some
others of the New England States, but not
so in our State.
1t was early decided, in the case of
Mooney VS.. Maynard lst Of Vt Reports
page 40, that the common law could not
be considered as in force in this State.
Judge Hutchinson says; The cattle of
many persons, especially the cows of poor
persons, in all parts of the State, have al.
ways been permitted to run at large upon
the highways and commons; no person
presuming to take them up damage feos-
ant (when they were found doing damage)
unless bis own fences would stand the test
of the law" There can be no doubt then,
that up to the making Of the Statute of
1853, referred to, by custom, cattle were
allowed to run at large, and if the COWS Of
poor persons we're thus permitted, it could
be for no other purpose than that they
must crop the grass that grew in the high.
ways, and thus get their living; and if
this right was recognized by Statute also,
no one could doubt that the common law
right to maintain trespass therefor would
be extinguished. As to the Statute Of
1858, it contains provisos important to
the determination of this question ; Is.
the town has the right to say what animal
may run at large, and I'd the selectmen
the right to permit persons owning only
one cow, to a low it to run at large. Now
it would be most absurd proposition to
say that the town, or the selectmen we
power to grant 10 individuals a privilege
which if exercised, would subject such 10.
dividual to an action of trespass by the
owners of the soil, because incident to,
and the very object of their allowing
animals to run at large is that they may
live upon the grass growing III the high.
ways and commons.
One Of two things must be true, either
the town and selectmen have no right tc
grant such privilege or the individual
owners Of the soil, by custom, rep ugnant
to the common law, has lost his remedy
except that giren by The Statute. A