Litchfield enquirer., 1860-09-20

anu i've tO maKe others happy, we must lool
 with lenity on their defects, and with SC
 verlty, and an unforgiving spirit, only on ou own.
 I THE LAW OF HIGHWAYS.
 The first part of the 18th vol. of Con necticut Law Reports, just issued bv tn, reporter, John Hooker, Esq., contains a de
 cision which interests all the farmers of the State, and will delight many persons, wht would be glad to keep the grass land ad joining their premises in good order, neatly trimmed, and as slightly as if it lay within their own fences but have hitherto beer deterred from taking any pains about it, be cause the public have claimed the right tt graze their cows horses aud hogs thereon to the great annoyance and constant anxie ty Of the adjoining proprietors. It now ap pears, by the solemn decision of our Su prene Court WoodwortA vs. Neal, 2stl Conn.,, l65), that "t the owner of land GOV. cred by highway has the exclusive right to the hcrbage growing thereon, and by. law of town giving liberty to the iuhabi tants to depasture their COWS in the public highways under certain regulations, passed under the authority of general statute (Acts 1855, oh. 64) empowering towns tc pass such bylaws, is of no validity"
 The Case arose in Southingtou, where a COW had been licensed, for fifty cents, tc pasture ou the highways and unenclosed lands in the town, from lst May to lst Nov 1857. The COW was impounded while al large under the license and MT. Hooker the counsel, took the ground that the stat ute authorizing towns to permit cattle tc run at large ill the highways was unconst tutional and void, and consequently the town bylaw was void. The Court sustained MT. Rockers position. The Court says (Chief Justice Storrs giving the opinion) that a COW was lawfully impounded, unless the cou- ceded fact of the land having been laid out for highway, or the license, will justify the owner. In regard to the general law of highways the Court says:
 It is well established in this State, in conform ity with the principles of the common law, that highway is simply an easement or servitude, conferring upon the public only the right of passing over the land on which it is laid out, and, as an incident of such right that of using the soil and the materials upon it in reasona- ble manner for the purpose of making and re- pairing it. The title of the owner of the land is not extinguished, but is simply so qualified that 1t can only be enjoyed subject to the ease ment. He retains the fee, and all rights of prop erty in the land not incompatible with the pub lie enjoyment of the right of way, and whenever the highway is abandoned or lost, the entire, ex- e!uslVe and unlncumbered enjoyment reyerts to hiD Subject sv this sgBh of the h.lag pgblje bJ!ubss bs
 i4Rfs. 4s. slqk Matssr eQses ppder be derived from it consistent with the easement, and when disseized, las he may be) can main tain ejectment and recover the possession sub ject to the easement, and can also maintain tres pass for any act done to the land not necessary for the enjoyment of the easement, which would be an actionable injury if the land were not GOV cred by highway. (See Peck V. Smith, l Conn.,, 1O3, Wooster V. Baalcr l3 id 309, and Reed V. Leeds, l9 id, le2, and the authorities cited in the last case.9 Among the rights thus retained by the owner is that of the herbage of the land, which belongs exclusively to him, and having himself thus the right to depasture it, he may maintain trespass against any one who puts his cattle upon it to graze. The right, on the part of the public, to depasture the land, is not necessary for the exercise of their right to pass over it !; and the exercise of such right on the part of the owner, is not inconsistent with this public right the land is not, therefore, seques- tered for that purpose when it is laid out as highway, and no damages are given to the own CT for the loss of any such right. If, therefore, it is used for such purpose by stranger, the owner of the land is remitted to the same rights which he possessed before. the highway was made and can protect himself against the an- noyance by treating the intruder as trespasser. In regard to the particular right of the owner exclusively to depasture the land, we have not, in our own State, any express decision. But it necessarily results from the principles which have been mentioned, and it has frequently been assumed by our courts that it is one of the rights of which the owner is not divested by the laying out of the highway and it has been ex- pressly decided in Maine and New Hampshire, that it continues to belong exclusively to him.
 Andin regard to the special license claim cd, the Court lays down some wholesome truths. The decision tends to fortify pri- vate property, and will be hailed with joy by many who had become uneasy, in view of the apparent facility with which private property is trenched upon, and taken from one man a,oeimally for the public, but really for the benefit of his neighbors. Our city authorities find little difficulty in dispossess- ing man of such parts of his estate, as bis neie hbors fancy would improve the ap- pearance of the vicinage, if thrown into the public store, granting merely nominal dam ages for such taking the practical opera tion is to deprive the original owner, molems volems, at the will of third parties, of what has been fairly paid for, and ought not to be held on such precarious tenures. as be- ing subject to the will of his neighborhood Chief Justice Storrs says
 This presents the general question, whether it is competent for the legislature to permit or authorize towns to permit, the domestic anllllals of one person to depasture the land ol an1Inel over which an ordinary highway has eeen a iIo~ I"n ted, and thus to deprive the owner oi .ne hei. bage. There has undoubtedly prevailed aihohg our citizens, to considerable eXtent vagoe impression that the legislature possessed thls power: and many of the towns, assuming thai if was constitutional, have passed bylaws slml lar to the one upon which the plaintiff relies Such bylaws, we presume, have been general, nassed in consideration of the benefit that woult arise from them to the poorer classes of ou community. But, notwithstanding the laudabl motive which dictated their enactment, the ques
 tion of their validity now arises, for the frs time, for our decision, and must be disposed c on legal principles. And, on careful conside tion of the subject we are fully satisfied that tn
 granting or authorizing such license, no con
 pensation having been in any manner provide
 for the owner of the land upon which it is t
 be exercised is to be exercised, is beyond tn constitutional power of the legislature: It col I-AslL Al- -c rnn