Year: 1859

a few weeks ago we remarked upon the prac-
tce of allowing cattle to range in the streets,
and therein stated our conviction that there was
no warrant for it in reason or lar. AS the
theme has occasioned some enquiry, and espec-
tally as some have venturcd 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 subjoined, so dis
tinctly and comprehensivey stated that it is
worthy to be preserved by every free holder
and should be laid before the people of the
whole State.


MIR EDITOR The principle, whence springs
the right of the public to take for its use, the
property of individuals is generally well under
stood. When the public necessity or good, or
the convenience of individuals, private rights,
involved however much, must yield, but only to
the extent, of the required use. The right re-
spectively of the public and the adjoining pro-
prietors of highways, have long since been clear
ly settled and defined.


Role. distinguished law writer of the 18th
century, e"yo' "rhe "ehold and all the profits.
as trees, belong to the lord of the soil or the
owner of the lands on both sides of the way"
So Lord Coke says, "The freehold of highways
is in him that hath the freehold of the soil, eth
er 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 right
of passing and repassing a highway, to make
and repair it, and to do whatever may be nee
essary for that purpose but the ad joining prop
critics have the freehold and own the soil they
have right to every use and profit that can be
derived from it consistent with the easement of
the public; (to-wit: the right to pass and re-
pass and to repair they may take trees grow
ing thereon, occupy mines, or sink water cour-
ses under it, and by the common law may de-
pasture it; when disused they can maintain
ejectment and recover possession, subject to
easement; and can maintain trespass for any
act done to the land not necessary for the en-
joyment of the easement, which would be ac-
tionable 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 GEN.
ter, and when n 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 coun-
try.


In the case of Stevens VS.. Whistler II East
page 81, an English case, decided in 1909, the
principle was clearly established that the ad-
joining proprietor of highway might maintain
trespass against another for depasturing the
highwa, in front of his land. So in the case of
Pomeroy VS.. Mills ct al. reported in Vermont
Reports, vol. 3 page go, Prentess Chief JUS
tice, says, at is well settled that the owner of
land, taken for a highway, retains his exclusive
right in the soil for every purpose of use or
Drofit not inconsistent with the nublic easement
and many maintain trespass or ejectment for
any encroachment upon it. 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 enactment in
1858, of penal statute against the running at
large of cattle in highways, have outstripped
the courts and leaving the right of private re-
dress where it was before, have stamped the
custom as a penal offense.- Middlebmy Regr.