The true northerner. [volume] (Paw Paw, Mich.) 1855-1920, 1885-03-05

Pasturagc OF Highways.
Judge Mills Of Kalamazoo, read paper to
the Kalamazoo county husbandry club, in
session at Augusta, last week, on cattle
estray on the highways" which is attracting
attention among farmers generally. Judge
Mills first showed that i'm Michigan the exer-
state, in appropriating lands for the high
1t. The public merely acquires the right of
way over it, which includes tho privilege of
using 80 much of the trees, earth and ma
terial found thereon as may be necessary to
build it and keep il in repair. Every indi-
vidual may pass and repass, and drive cattle
and other stock over it. 1t is contemplated
that the whole width of the highway is to be
used for public travel, but in practice there
usually remains on eGch side OF the beaten
track portion which is seldom travelled on,
and on which good pasturage is found. This
pasturage belongs not to the public, but to
the person having title to the land, and cat
tie running at large and grazing thereon are
trespassing
After showing that cattle which nip the
grass as they are being driven along are not
trespassing, and how far persons who are
driving on the highways are liable for dam
ages done to property unprotected by fences,
and citing some early statutes in the interest
of emigrants which are often mistaken as
granting the right to turn stock at large, he
concludes his paper as follows:
"Suppose a case where town has no COM
mon lands, and they pass bylaw permit
ting cattle and horses to run at large, where
are they to run? Surely not on individual
property. Where then, in the highway? The
public have simply right of passage over
the highway. The owner of the land through
which the highway passes is the owner of
the land and the timber except what is nee
essary to make bridges or otherwise aid in
making the highway passable; and if the
owner of the land owns the timber why not
the grass? Commenting on this case our
courts say that the doctrine established by
this decision is i'll accordance with funda-
mental principle of the common law, which
has been recognized by elementary writer's,
and judicial decisions in England and this
country for great length of time. Though
every highway is said to be the kings yet the
king has nothing except the right of passage
for himself and his people; the freehold and
all the profits belonging to the owner of the
land 1 think / may safely say that the
considering was passed in view of the spec
ial wants of the period at which it was
enacted, and followed the spirit of laws of
similar character which had been from time
to time in force in other states where similar
reasons therefor existed, and where the town
ships or some of them had common lands
and pasture upon which every mans cattle
might be allowed to go at large under at
least proper restrictions: and that it was
never intended to permit cattle to run at
large in the highway, to pasture upon private
heritage.
In 1856. the legislature passed law which
provided THAT from and after the year 1867,
1t should not be lawful for any cattle, horses,
sheep or swine, to run at large in any public
highway OF this state: Provided that this
act shall be operative only in those counties
or parts Of counties in which it shall be so
determined by resolution passed by the board
of supervisors of such county: Provided.
further, that the powers granted to boards of
supervisors in this section, shall not abridge
the powers reserved to the people of town.
ship by the statutory provision already con-
sidered-' This law was in some respects
simply declaratory of the common law and
left the whole matter where il really always
stood As the necessity which prompted
the passage of the early statute passed away
and the state became thiclly populated and
lands generally cultivated, it became essen
tial to put up the bars and stand more firmly
upon common law principles, leaving, how
ever, townships to deal with cases of pecul-
Jar and local character. To this end the
Legislature not having in view the principles
of the common law or regard for the con-
struction given previous statutory enact
ments aud assuming power 10 exist in the
board of supervisors which was not vested
In them. provided that In case the board of
supervisors in any county should pass res
olution allowing any of the classes of animals
named in section one, which has Just been
read, to run at large, on the public highway,
then in such county after the year 1867,
the sections following should be null and
void. otherwise in force The other sections
provided for the seizure and sale of animals
found running at large contrary TO the letter
of the statute. And thus if the supervisors
choose to vote that the animals might run at
large, citizens upon whose highway pasture
they might stray and feed, were RENTED tn
an action of trespass to redress the wrong
and could not take up and sell the offending
beasts. In 1881 these statutory regulations
were again repealed and the law of 1867 was
made imperative in counties in which the
board of supervisors should so declare. Now
so far as these statutes provide for the sez-
ure and sale of animals running at large con.
trary to law, they have been upheld by our
supreme court, but so far as they trench
upon the common law and assume to au-
thorize animals rs matter of right to be at
large and feed upon and depasture other
peoples highway pasturage, they have been
criticised and practically held to lie OF no
force. In Campau vs. Konau. q case reported
in the 39th of Michigan, the supreme court
says Whether authority could be conferred
upon the board of supervisors or any other
body TO permit beasts to run at large upon
the public highways, may, 10 say the least,
admit of considerable doubt upon principle.
The owner of lands adjoining the highway is
entitled TO the heritage growing thereon and
whatever rights the public may have in the
highway, a common or pasturage is not
among them The subject might be pur-
sued much further but 1 am afraid have
tired you already. and will simply content
/fself by saying that cattle at large in the