The Middlebury register. [volume] (Middlebury, Vt.) 1850-1882, 1859-07-27
Highways.

the practice Of allowing cattle TO range in
the streetB, and therein stated our oonvic-
tion that there was no warrant for it in
reason or Mu. As the theme has %.
r"sioned rome enquiry, and especially as
sonne have ventured to dissent from the
egai opinion which we gave at that time,
we have caused the question to be investi.
gated by a member of the bar, whose CON-
peten;y no person in the State will ques-
ton. Every one is more or less directly
interested in the matter, and the truth is,
in the paper subjoined, SO distinctly and
Complementary stated that it is worthy
to be preserved by every free holder aud
should be laid before the people of the
whole State.
Mr.. EDITon The principle, whence
springs the right of the public to take for
its use, the property Of individuals is gen.
eialy well understood. When the
public necessity or good, or the * n
venience Of individuals, requires the open.
ing of highways, private rights, involved
however much, must yield, but only to
the ext mt. Of the required use. The
right respectively of the public und the
adjoining proprietors of highways, have
long since been clearly settled and defined
Role, distinguished Law writer of
the 18th century says, The freehold and
all the profits, as trees, belong to the lord
of the soil or the owner of the lands on
both sides of the way" Sc Lord Coke
says, 1.-THE freehold of highwaysis in him
that hath the freehold of the soil, either
the lord of the manor, or the land owners
on both sides of the way"
Again, Chief Justice Swift of Conn, in
his celebrated treatise says: The public
has right Of passing and repassng
highway. to make and repair it, and to do
whatever may be necessary for that pur.
pose but the adjoining properties have
The freehold and own the soil they have
right to every use and profit that can
oe derived from Il consistent with the
easement Of the public; Ito wit: the right
20 pass and repass and to repair) they
may take trees growing thereon, occupy
mines, or sink water courses under il, and
~ the common law may depasture it;
"hen disused they can maintain eject.
nent and recover POSSESSION. subject to
casemept; and can maintain trespass for
am act done to the land not necessary for
he enjoyment of the easement, which
would be an nctionable injury if the land
vas not covered by the highway. 80.
,hen one man owns land on both sides of
he highway he owns the whole of it.
When ifferent proprietors own the land
N each ride Of the highway, each owns
10 the center and when highway is dis.
oninued, the adjoining proprietors hold
the land discharged from the easement"
The above doctrine has long been settled
by Judicial decisions in England and in
this country.
In the case of Stevens vs.. Whistler II
East page 81, an English case, decided in
09 the principle was clearly established
hat the adjoining proprietor of highway
night maintain trcspass against another
'or depasiuring the highway in front Of
lis land. So in the case OF Pomeroy VS..
Mills ct al. reported in Vermont reports,
vol 8 page 279, Prentes. Chief Justice
lays, 1t is well settled that the owner
of land, taken for q highway, retains hi.
exclusive right in the soil for every Dur.
pose Of use or profit not inconsistent with
the public easement, and many maintain
tre'pass or ejectment for any encroachment
upon 1.-THE said principle has been
adopted in the New England States gen.
orally.
The Statute law of this State has in
no wise, intrnged upon the doctrine as
above stated. Indeed the legislature BY
the enactment in 1858 Of penal statute
against the running at large, Of cattle in
highways, have cutstripped the courts and
leaving the right of private redress when
it was before. have stamped the custom as
penal offense.
TT~,ypys,rv an Uxonoxn E.-:-.