Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1895-03-31
.wiIi Net Abolish Tsssss'r
HoRNnR'A VA. March - ~


N the Editor Of the Dispatch:
eams tire IN June Of last year tne!s
arneared In the columns Of the virsnls
citizen an article headed: VIII ArCns"
Fenoes." Il made quite . stir oown nste
: "a come peryons have denied that SUCH
dsc,sion had ever been rendered py tne
Court OF Appeals. wrote to the CauSen
stinr their authority. whereupon uey
r. nuhlished the article, of which the en-
cIoscd IL a copy. with the authority for
s.me. also. editorial comments. wrote
FOR additional numbers Of the Issue ana
received only one copy, and my returned
stsmps. with the information that the
ertIcie had caused such . demand Tor
that Issue that the supply was exhausted.
Az this question has created sucn
stir down here. no doubt II mas done
iitevise all over the State. i, therefore.
=, ali YOU 4 copy OF their second publica-
ton ~ the article. with their authority
and editorial comments. and ask you TO
pubIsh the same and send me q copy
for stamps enclosed.
Very respectfully yours.
H. HORNER. Postmaster.
WILL ABOLISH FENCES"
Under this caption we In June Of last
year published the gist Of Justice Lacy's
VS.. Seaboard and Roanoke railroad.
eIghty-eIghth Virginia. page 653. 1t
awakened considerable comment among
the people and press Of our State. and
nearly a hundred applications were re-
ceived by US requesting copies containing
It. After our surplus issue was disposed
Of the letters still came. and In the last
few weeks we have received quite
number asking us to republsh the article.
We give II below. with our comments at
the time:
The Court Of Appeals Of Virginia, as
well as the Supreme Court Of the United
States. have recently decided that fences
are not necessary In order to sustain an
action OF trespass. Justice Lacy, Of the
Court of Appeals. renders the following
opinion, and cites decisions by the United
Stats Supreme Court in substantiation
OF 1t:
THE highway Is. generally speaking.
nothing but an easement comprehending
merely the right Of all the individuals In
a community 10 pass and repass with
the incidental right Of the public to re-
pair This easement does not compre-
bend any interest In the soil. nor give
the puSiic legal possession OF II. The
right Of freehold Is not touched by es-
tabiishing n highway. but continues In
the original owner OF the land In the
same manner ii was before the highway
was established. subject to the easement.
The public has a right to pass and repass
and to repair. and anything which OBJ
structs the use of the highway is public
nuisance. Subject to this easement, The
exclusive ownership OF the soil, the free
hold and all the profits remain In him
who owned the ground before the high
way was laid out over 1t. and he may
maintain trespasS or waste or recover
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 distractions there. or VINO
standing there "a a stroling musician.
refusing to depart.
These principles are well settled In
most of the States Of this Union, and In
none more firmly than in Virginia.
"A public highway only vests In the
Commonwealth n right Of passage: but
the freeholds and the profits (such as
trees upon 1t and mines under it, belong
to the owner OF the soil. who has the
right to all remedies for the freehold,
subject, however, to the easement
1.-THE easement comprehends no Interest
in the soil. The right Of freehold Is
rot touched by establishing highway.
but continues in the original owner OF
the land in the same manner II was De-
fore the highway was established, sub
feet to the easement.
"Mr. Minor says that the public &C.
qu!res merely right Of passage. The
freehold and all profits OF the SOIL De-
long still to the proprietor from whom
the right OF passing was acquired. lie
a
e(ectment, subject to the right OF way.
and may maintain an action OF tres
pass for digging the ground. If 1t be I'M
known from which OF two adjacent
proprletors highway was at first taken,
or IL the highway be the boundary be-
tween them, they ara understood TO own
each I'D medium ilum viae."
we are Indebted TO Hon. It. II. H..
Wright. Judge OF the Ninth Judicial Cir
cult for calling our attention 10 the
decision. 1t seems to have escaped the
attention OF our people. and the bar N
general up to this time.
While the opinion does not specincaiiy
refer to division fences between properties
and confines itself to highway FENCES,
| IL IA fair to presume 0hough we cannot
asssume) that the Courts decision would
have included these also. II 1t had been
a matter under consideration. And fur-
| Their. to presume that any court or Vlr-
| cinia. acting upon this dictum. would
| hold Il a matter OF trespass upon Tree
| hold not affected by ease nent as reaiiiy
| as IT does upon the high way can ease
| ment').
| In Hodges versus the Seaboard and
| Roanoke Railroad Company. eighty-eighth
| Virginia. page $50. nothing was decided
| I'm regard to fences, or the obligation or a
landowner to enclose his land; but the
point decided In the opinion OF the Court
which was delivered by Judge Hinton
| was that the owners Of lots abuttine
upon streets in a city or town own the
fee In the land to the middle Of the street
subject to the easement OF the public
for the purposes Of passing and repass'
ing: and that q railroad company may
be restrained by injunction at the suit OF
an abutting owner from unlawfully laying
Its tracks in g street.
The opinion referred to by our CORE
spondent was not the opinion OF the
Court, but the individual opinion Of Judge
| Lacy. No question In regard to fence:
arose In the case. and. consequently. nc
such question could have been decided
We infer from what our correspondent
writes, that the scope Of the decision
has been inexperienced.
|