The times. [volume] (Richmond, Va.) 1890-1903, 1895-03-31
FENCnS IN TIRGfNI/.
Decision About the Rights OF individuals
on the Highway.

The following editorial from a recent
| issue Of the Virginia Citizen. published at
| Irvington, Va, is published here by re-
quest.
| Under this caption We in June of last
| year published the gist of Justice Lacys
concurring opinion In the case Of Hodges
! vs.. Seaboard g. Roanoke K. r.. 18th Va,
page 6o3. II awakened considerable com
| ment among the people and press of our
| State and nearly hundred applications
were received by US requesting spies
containing II. 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 Iepublish the
article. We give IL below with our COM
ments 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 L. s
Supreme Court In substa 1tiation of It:
The highway Is, generally speaking.
nothing but an easement comprehendng
merely the right of all the individuals I'm
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 public
the legal possession of it, The right OF
freehold is not touched by establishing A
highway, but continues in the original
owner OF the land i'm the same manner 1t
was before the highway was established,
subject TO the easement. The public has
right TO pass and repass and to 'epair.
and anything which obstructs the use OF
the way, is public nuisance. Subject TO
this easement, the exclusive ownership OF
the soil. the freehold and all the profits re-
main In him who owned the ground be-
fore the highway was laid out over ".
and he may maintain trespass or waste
or recover possession subject to the ease
ment. The heritage belongs exclusively
10 the owner OF the soil, and he NAV
maintain trespass against one who puts
his cattle in the highway to Craze
Instructions there. or who instead of
passing along II. remains standing there
a strolling musician. refusing to de-
part
most OF the States OF this Union and in
none more firmly than i'm Virginia.
"A public highway, only vests in the
Commonwealth a right of passage: but
the freeholds and the profits tsuch as
trees upon il and mines under 10 belong
TO the owner of the soil, who has the
sight TO all remedies for the freehold, sub
ject however. to the easement
1.-The easement comprehends no interest
In the soil The right OF freehold is not
touched by establishing highway. but
continues in the original owner of the
land In the same manner 1t was before the
highway was established, subject TO the
easement.
"Nr. Minor says that the public acquires
merely a IlBDI OF pdSSdSc. Inc lTetHOlu,
and all profits Of the soil. belong still
to the proprietor from whom the right
of passage was acquired. He may, there
fore, recover the freehold in eiectment.
subject to the right of way, and may
maintain an action of trespass for dig
eing the ground. If IL be unknown from
which Of two adjacent proprietors high
way was at first taken, or If the highway
be the boundary between them. they are
understood to own each ad medium filum
Viae"
We were indebted to Hon. r. r. 3.
Wright. Judge of the 9th Judicial Cir
cult. for calling our attention 10 the de-
cis!On. Ii seems to have escaped the at
tention of our people and the bar in gene
raj up TO this time
While the opinion does not specifically
refer to division fences between pro-
perties and confines itself to highway
fences IL is fair TO presume Though we
cannot assume) that the courts decision
would have included these also If ii had
been "a matter under consideration. And
further to presume that any court of
Virginia acting upon this dictum would
hold 1t matter of trespass upon free
hold not affected by easement as readily
as 1t does upon the highway can ease
ment').
The new Supreme Court has overturned
the famous Mary Miller decision of the
fmmer court; the question of fences.
though OF less import. comes directly
home to the people and we would ike
10 see IL before the new court and passed
upon in all it's phases.