Daily Republican., 1886-02-15

70 gross provooRtion or insult.
This Ia the law with respect to un-
authorized entry upon another'e land,
and entry attended by circumstSe ices
OF great agzravation--as q display of
arms, &c In case of mere trespsss
that is where no violence by the intrud.
or Ia done or offered. and there is no
reason TO apprehend any, killing the in
truder would be murder, and OF the
hrst degree, II facts could be shown
that the slayer armed himself to repel
the treepasser and nee his arms without
any serious resistance on the trespas-
ser's part. The fact OF arming would
show expectation Of q deadly combat !;
and where one has reason to expect q
dangerous attack, and takes no steps TO
avoid IL, but prepares himself for it, and
especially II he put himself In the wsy
of 1t, and then kills his adversary who
attacks him, he is not only not jusiiatd d
or excused in 30 doing, but is pnnisha-
BILE for wilful murder.
But there are circumstances under
which when they exist, n man has the
right TO go upon another's land. Sup
pose one travelling along highway or
q street (Which IL q highwsy) IL sud.
denly attacked by q ferocious animal,
and can only protect himself by enter
Ting upon another's land, or into his
dwelling house through an open door /;
or should 10 entsr to avoid the danger
of runaway horse or team upon the
ghway the law would protect him
in 30 doing upon the ground Of the ex-
listing necessity. Suppose also, by some
natural occurrence, public highway
should be obstructed, as, for example,
by trees bio wn across 1t by q tempest,
by great food which has submerged
or drowned 1t, or by q heavy fall of
snow which has filled or blockaded It |;
In such cases, travellers along such
ishways have now, and always have
had the right TO enter upon and travel
ACROSS the adjoining lands, whether In
closed or not, In the pursuit Of their
lawful business, on occasions.
This right Is called a way Of necessi-
Ity, to which the private right of exclu-
sive possession must yield the whole of
the adjoining land, 30 long as the Beces.
sity exists. During the continuance Of
such necessity--that is, 30 long as the
thighw way shall remain obstructed-the
right OF travel, or way of necessity, ex-
lists, snd may be used by wayfarers
| without molestation from the occupier.
But this right must be exercised 30 as
not to do any wanton or unnecessary
damage to him, or his crops though it
10 not for him to say what the route OF
the public travel across his land shall
be. Highways "are for the public ssr-
vice." as was said by . great judge,
and II the track be impassable, 1t is
for the general good that people should
be entitled to pass In another line"
1t is upon that consideration that the
.respas, is juStihable. But suppose the
Iowner OF occupier OF the land should
forbid the public from using his land
as way of necessity, In case Of obstruc-
ton OF the regular highway; are the
public bound to heed him? Certainly
not; no more than they would be TO obey
his order that, In travelling along the
public high way bounding his land, they
should travel on the other side of the
middle line Of it and not on his side,
where his right Of soil is. Such right
extends to the middle OF the highway
subject to the public easement or right
OF traVe., with which he has no authori
1 ty to interfere. The way of necessity
then, as have described 1t, across ol
lover q private owners land being th,
same for the public as that they enjoy
upon or over the public roads, or high
ways, 1t is evident that the right to for
bid the use by the public or some mem
Der of iG, no more exists in the one cast
than in the other.
1t follows, then, that II such owner
should, though upon his own hand q
the time, undertake to prevent any one
who had occasion to travel the obstruct
ed highway, from entering upon and
using his land to avoid the obstruction
he would be willfully endeavorinR tt
hinder or impede such a one from exer'
cising and enjoying common right to
which, as part of the public, he wal
ENTITLED. During the continuance oi
the obstruction to the public road, the
owners land, or such part OF 1t as Il
necessary to he used In lieu OF suci
road, becomes a public highway hk'
, the other. When therefore he attemp
, TO impede any one In using 1t, ahe Is
wrong doer; and If such attempt Il
} manifested by personal acts-for exam
Iple laying his hands upon him to pre-
! vent his going upon the land, or stop
ping him while being there in course, o
, jtrayel. or resisting the others effort tt
q open q gate across or at the entrance o
the way thus made necessary, or to 10
a Idown the bars at an outlet, he is tn
! ,RRressor and must take the conse
/ | q uences Of anything that befals, b.
, reason of his unauthorized act.
I do not mean to bs understood +
say, of course, that the party resisted
, (tnat In the traveler) wonld have tn
.. right to kill him instantly, or do hin
, great bodily harm with a deadl,
weapon; but do mean to say that tn
, party resisted would have the right Il
oppose any force used towards him b.
|. his opponent, and to use all necesssr
: means to overcomeit; and IL his life weI
attempted in the conflict, he woul
d have The right in his own defence,
! take that of the aggressor, aud II sue
aggressor had gone into the conflict un
armed, and the supposed trespassel
sl having arms, sought to slay him, b
: might slay the other IL he could an
protect himself under the plea of Sell
a defence.
But IL he had prepared himself betor
a Ihand with arms, and had gone to tn
a lplace where the traveller would emit
q to enjoy the way of necessity, for IL
a purpose, il necessary, Of using such arm
q In aay conflict that might arise betwee
a them over the right and such conii'
n arisen and he had used them to II
A destruction of the traveller, the slayin
n would neither be justifiable, nor 81
Il Icusable, nor would it be manslaughte
). because of the wrongful act of the OWL
o or or occupier, in resisting another
a lhis right, and the use of the dead
It weapon In the conflict which he appr
r lhended. There Is no law that shields
Ia man from legal punishment who IL X
r. aVRressor In o combat and Ia armed Il
10 Iit, and who kills his contestant In u
II course of 1t. Though his adversary
q also armed, he has provoked the conte
- by his own unlawful act; but for sue
It Iprovocation, there would have been
y bIoodshed. He, himself brought 1T