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§ 304. The law has, also, been well expressed by Platt, J., in delivering the opinion of the Supreme Court of New York, in Jackson v. Hathaway. Highways," he remarked, "are regarded in our law as easements. The public acquire no more than the right of way, with the powers and privileges incident to that right; such as digging the soil and using the timber and other materials found within the space of the road, in a reasonable manner, for the purpose of making and repairing the road and its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished; but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right of way. The person in whom the fee of the road is, may maintain trespass, or ejectment, or waste. But when the sovereign chooses to discontinue or abandon the right of way, the entire and exclusive enjoyment reverts to the proprietor of the soil." Accordingly, it has been held, that the owner of the fee may maintain trespass against one who builds on the highway; or who digs up and removes the soil; or cuts down trees or timber growing

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fetters, under a penalty. It was urged that as horses were by this law prohibited from going at large without fetters, it was by implication a license to permit them to go at large with fetters. But the Court were of the opinion that, admitting the legislature had the power to authorize one man to turn his horse to graze upon the land of another, which was very questionable, still it would be a forced and unnatural interpretation of this statute to construe it to give a license of that nature. Every man had a right to turn his horses into the highway to graze, where he owned the soil over which the highway was laid, and this statute was intended to regulate the exercise of that right and not to give any new right.

1 Jackson v. Hathaway, 15 Johns. (N. Y.) R. 447.

2 Peck v. Smith, 1 Conn. R. 103; Costelyou v. Van Brundt, 2 Johns. (N. Y.) R. 357.

3 Gidney v. Earl, 12 Wend. (N. Y.) R. 98; Willoughby v. Jenks, 20 Ib. 96.

thereon; and though a surveyor may, as the agent of the town, cut such trees to be used in the repair of the way or in order to improve it; yet if he cuts them for his own use, he is a trespasser.1 So it has been held to be trespass for a ferryman to land his passengers or boats, or for any other person to unlade or receive freight at the terminus of a highway, without the consent of the owner of the soil.2 And a railroad company cannot lay their railroad on a highway, at least in the country, though authorized by their charter, without making compensation to the owner. A highway upon land is in its nature an encumbrance and a breach of a covenant, which stipulates that the land is free of encumbrances.1

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305. In Adams v. Rivers,5 trespass was maintained by the adjoining owner against a person who came upon the sidewalk and there remained using abusive language towards him, and refusing to depart. The language of the Court, per Willard, J., was as follows: "The defendant committed a trespass while standing on the sidewalk by the plaintiff's lot where he lived, and using towards him abusive language. While so engaged he was not using the highway for the pose for which it was designed, but was a trespasser. He stood there but about five minutes. It was not shown that he stopped on the sidewalk for a justifiable cause; on the contrary, it was rendered probable that it was for a base and wicked purpose. It was, therefore, a trespass. Suppose a strolling musician stops in front of a gentleman's house, and plays a tune or sings an obscene song under his window, can

pur

1 Babcock v. Lamb, 1 Cowen, (N. Y.) R. 238; Makepeace v. Worden, 1 N. Hamp. R. 16.

2 Chambers v. Fury, 1 Yeates, (Penn.) R. 167; Cooper v. Smith, 9 Serg. & Rawle, (Penn.) R. 31; Chess v. Manown, 3 Watts, (Penn.) R. 219.

3 See ante, § 243, et seq.

4 Pritchard v. Atkinson, 3 N. Hamp. R. 335; Kellogg v. Ingersoll, 2 Mass. R. 97; Wilson v. Wilson, 2 Vt. R. 68.

5 Adams v. Rivers, 11 Barb. (N. Y.) Sup. Ct. R. 390. But see O’Linda v. Lathrop, 21 Pick. (Mass.) R. 292.

there be a doubt that he is liable in trespass? The tendency of the act is to disturb the peace, to draw together a crowd, and to obstruct the street. It would be no justification that the act was done in a public street: The public have no need of the highway but to pass and repass. If it is used for any other purpose not justified by law, the owners of the adjoining land are remitted to the same rights they possessed before the highway was made. They can protect themselves against such annoyances by treating the intruders as trespassers. So an individual, who, without lawful authority from the town, reconstructs a highway, making it safe and convenient in parts not before actually travelled, is a trespasser.1

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306. At common law, we have remarked that the owner of the fee is entitled to the herbage growing in a highway; and the question has been raised whether this right can be constitutionally taken away or qualified without compensation therefor. In New York, an act was passed empowering the electors of each town, at their annual town meeting, "to make rules and regulations for ascertaining the sufficiency of all fences in such town; and for determining the times and manner in which cattle, horses, or sheep shall be permitted to go at large on highways." In pursuance of this act a resolution was passed at the town meeting of the town of Pierpont, in these words: "Voted, that all orderly neat cattle have a right to run at large from the 1st of May to the 1st of November in each year." And also another in these words: "Voted, that all fences shall be equal in strength to a good rail fence four and a half feet high." In an action of trespass, for the entry of cattle from the highway into the plaintiff's close, through fences which were proved to be insufficient, the defendant justified under the act and resolutions above cited. For the plaintiff it was objected that the act and resolutions

1 Hunt v. Rich, 38 Maine R. 195; Ruggles v. Lesure, 24 Pick. (Mass.) R.

were in derogation of the clause in the constitution, which provides that private property shall not be taken for public use, without just compensation, and therefore void. But the objection was overruled and the act and resolutions were pronounced constitutional by the Supreme Court of that State.1

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§ 307. "The question," said Willard, J., in delivering the opinion of the Court, "whether the act under consideration is in conformity to the constitution or not has never been distinctly passed passed upon by this Court, and I am not aware of any case in which it has been necessarily involved. We have dicta from highly respectable sources, adverse to the power but accompanied with no examination of our recent legislation on the subject. Thus, in Holladay v. Marsh, which arose before the revised statutes, Chief Justice Savage intimates a doubt whether it was competent for the legislature to authorize a town to permit domestic animals to depasture the highway. And he observes that the public have simply a right of passage over the highway and have no right to depasture it. The owner of the land through which the road runs is still the owner of the soil and of the timber, except what is necessary to make and repair bridges; and, he asks, if the owner of the soil owns the timber, why not the grass? In Gidney v. Earl, it was held, that where a road runs through a man's close, prima facie, the fee of the land over which the road passes, belongs to him. "The law," says Nelson, J., "will not presume a grant of a greater interest or estate than is essential to the enjoyment of the public easement; the rest is parcel of the close." In the Tonawanda Railroad Co. v. Munger, Beardsley, Ch. J., expresses similar views, concluding with the opinion that the legislature "do not "do not possess the power

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1 Griffin v. Martin, 7 Barb. (N. Y.) Sup. Ct. R. 297.

2 Holladay v. Marsh, 3 Wend. (N. Y.) R. 142.

3 Gidney v. Earl, 12 Wend. (N. Y.) R. 98.

4 The Tonawanda Railroad Co. v. Munger, 5 Denio, (N. Y.) R. 255, 264.

in question, whether compensation be made or not, but certainly in no case unless compensation is made." This opinion is not essential to the decision of the cause before him, as the action was for killing cattle, not on a public highway, but on a railroad where they were confessedly trespassers. In White v. Scott,1 McCoun, J., took occasion, incidentally, to remark, when speaking of a town ordinance similar to the one in this case, "that the power of a town meeting cannot be lawfully exercised beyond allowing the owners of the soil to turn their own animals out to feed on such parts of the highway as they respectively own, under such safeguards, rules, and regulations as shall prevent any obstruction of the public use or travel, and as shall at the same time avoid collisions and trespasses by the beasts of one owner upon the property of another." And he further intimates, that a town ordinance, like the one in question, is void, as extending beyond the authority which the electors of the town in their collective capacity possess under the statute. The learned Judge does not consider the act of the legislature unconstitutional, but he gives a construction to it entirely novel, and which defeats the main object and policy of the law. Under his construction, the act does not empower the towns to pass ordinances allowing cattle, sheep, and horses to run at large on the highway, but merely to adopt regula-tions with respect to the time and manner in which the owner of the freehold may depasture the road which passes through his own close. He views the act as restrictive of the right which might otherwise be enjoyed. He assumes, however, that the act would be unconstitutional, if it allowed the towns to treat the public highways, in any respect, as a common of pasture. Under this narrow construction of the act, one but the great landholders could derive any benefit from it. The poor tenants and other inhabitants, not owners of the soil, would be entirely excluded."

1 White v. Scott, 4 Barb. (N. Y.) Sup. Ct. R. 56.