Peninsula enterprise. [volume] (Accomac, Va.) 1881-1965, 1894-08-18
Letters from the People.

Mr.. ED1ToR:-Will you kindly ,! give
this a place in your columns. 1.-The
Virginia Citizen" of date June 9Th,
1894, published at Irvington, Lancas-
ter Co.. Va, uses the following Ian
guage:
Tie Court of Appeals of Virginia,
as well az the Supreme Court of the
United States, have recently decided
that fences are not necessary in or
der to sustain an action of trespass.
In other words it has decided that,
although your neighbours field is not
fenced in, and your cattle enter it,,
you are liable for damages.
The decision renders unnecessary
the mo fence" law passed by our
Supervisors and which goes into eff
feet on the 10Th day of this month.
In fact we have already, and have
had for sometime throughout the
State, a "No-fence" law, and, what
ever may have been our individual
wishes, we have to accept the decis-
ion of our courts on this point, as
their similar actions on the road law
and trial by justices. Justice Lacy,
of the Virginia Court of Appeals, rem
ders the following decision and cites
decisions by the U. s. Supreme Court
in substantiation of it:
THE highway is, generally speak
ing, nothing but an easement COM
pretending merely the right OF all
the individuals in community to
pass and repass, with the Incidental
right Of the public to repair. This
easement does not comprehend any
interest in the soil, nor give the pub
lie the legal possession of it. The
right Of freehold is not touched by
establishing a highway, but contin-
ues in the original owner of the land
in the same manner it was before the
highway was established, subject to
the easement. The public has right
to pass and repass, and to repair, and
anything which obstructs the use of
the way is public nuisance. Sub
iect to this easement, the exclusive
ownership of the soil, the freehold
and all the profits remain in him who
owned the ground before the high
way was laid out over it; and he may
maintain trespass for waste, or recov-
er possession subject to the easement.
The heritage belongs exclusively to
the owner Of the soil and he may
maintain trespass against one who
puts his cattle in the highway to
craze, or against one who places OBJ
structions there, or who, instead of
passing along it, remains standing
there, az q strolling musician refus-
ing to depart.
"These principles are we'll settled
in most of the States of this Union,
and in none more firmly than in Vir-
GINA.
ga public highway only vests in
the Commonwealth right OF pas
sage, but the freehold and the profits
(such as trees upon it and mines un-
der it) belong to the owner of the
soil, who has the right to all RENE
dies for the freehold, subject, how
ever, to the easement.
"The easement comprehends no
interest in the soil. The right OF
freehold is not touched by establish
ing highway, but continues in the
original owner of the land in the
same manner it was before the high
way was established, subject to the
easement.
"Mr. Minor says that the public
acquires merely right OF passage.
The freehold and all profits Of the
soil belong still to the proprietor
from whom the right of passage was
acquired. He may, therefore, recov-
er the freehold in ejectment, subject
to the right of way, and may main
tain an action of trespass for dig
cling the ground. lit be unknown
from which of two adjacent proprie-
tors highway was at first taken, or
if the highway be the boundary be-
tween them. they are understood to
own each ad medium filum viae."
In addition to the foregoing and
pertinent thereto, the writer begs
leave to quote the following from a
letter written by the Hon. Camm
Patteson, OF Buckingham Co., Va,
of date Feb. 3, 1893
mo local custom can exist in Vir
ginia, or indeed in any OF the States