Year: 1859




HIGHwATs.-A few weeks ago we remark
Ell upon the practice of allowing cattle to
range in the streets, and therein stated our
conviction that there was no warrant for it
IN reason or lalo. As the theme has occasion
e. some inquiry, and especially as some have
yentured to dissent from the legal opinion
which we gave at that time, we have caused
The question to be Investigated by a member
OF the bar, whose competency no person IN
the State will question. Every one Is more
or less directly interested in the matter, and
the truth is, in the paper sublOlned, so dis
tinctly and comprehensively stated that 1t is
worthy to be preserved by every free holder
and should be laid before the people of the
whole State.


Mr. EDITOR The principle, whence
springs the right of the public TO take for its
use the property of individuals. is generally
well understood When the public necessity
or good. or the convenience Of individuals,
requires the opening Of highways, private
rights. involved however much, must yield,
but only to the extent of the required use.
The right respectively Of the public and the
adjoining proprietors Of highways, have long
sine been clearly settled and defined.


Role. distinguished Law writer of the
I7th century saws 1.-The freehold and all the
profits, as trees, belong to the lord of the soil
or the owner Of the lands on both sides OF the
wav." So Lord Coke says, "The freehold Of
highways is in him that hath the freehold Of
the soil. either the lord of the manor, or the
land owners on both sides of the way


Again, Chief Justice Swift of Conn, in
his celebrated treatise says: "The public has
a right of passing and repassing highway,
b. make and repair it, and to do whatever
NAV be necessary for that purpose; but
the adjoining properties have the Tree
hold and own the soil; they have right to
every use and profit that can be derived from
ii consistent with the easement of the public;
Ito wit: the right to pass and repass and to
repair) they may take trees growing thereon,
occupy mines, or sink water courses under 1t,
and by the common law may depasture it;
when disused they can maintain ejectment
and recover possession, subject to easement; A;
and can maintain trespass for any act done
TO the land not necessary fer the enjoyment
of the easement, which would be an action
able injury if the land was not covered by
the highway. when one man owns land
on both sides of the highway he owns the
whole of it. When different proprietors own
the land on each side of the highway, each
owns to the center, and when a highway is
discontinued. the adjoining proprIetors hold
the land discharged from the easement.


The above doctrine has long been settled
by judicial decisions in England and in this
country.


In the case of Stevens VS.. Whistler ii East,
page 81, an English case, decided in 1909,
the principle was clearly established that the
adjoining proprietor of a highway might
maintain trespass against another for de-
pasturing the highway in front of his land,
So in the case of Pomeroy VS. Mills ct al, re-
ported in Vermont reports, vol 3 page 279.
Prentiss Chief Justice says, at is well sett-
led that the owner of land, taken for high
way, retains his exclusive right in the soil
for every purpose of use Or profit not incOn-
sistent with the public easement, and may
maintain tresspass or ejectment for any en-
croachment upon 1.-THE said principle
has been adopted in the New England States
generally.


The Statute law of this State has in no
wise infringed upon the doctrine as above
stated. Indeed the legislature by the enact
mentin 1853 of a penal statute against the
running at large of cattle in highways. have
outs;ripped the courts and leaving the right
Of private redress where it was before, have
stamped the custom as penal otense.