Defendant's wife, under the direction of the highway surveyor, cut the grase growing in the highway over the land of plaintiff, that her children might go and come from school, without getting their clothes wet. She carried the grass away, when cut, and fed it to her husband's horse. Held, that although she had a right to cut the grass, yet by carrying it away she became a trespasser ab initio.

The owner of the soil over which a highway is located, is entitled to emblements growing thereon, and to the entire use of the land, except the right which the public have to use the land and materials thereon for the pur pose of building and maintaining a highway suitable for the safe passage of travelers.

ACTION in trespass. Defendant's wife, under the direction of the highway surveyor, cut the grass growing in the highway over the land of plaintiff, that her children might go and come from school, without getting their clothes wet. She cut about fifteen or twenty pounds and carried it away and fed it to her husband's horse. The court ruled, at the trial, that defendant was justified in cutting the grass in the highway, but that in carrying it away and feeding to the horse, she became a trespasser ab initio; and that the rule de

minimis non curat lex did not apply. Verdict for plaintiff for one cent damages. Defendants excepted.

G. C. & G. W. Cahoon, for defendants, cited Hubbell v. Wheeler, 2 Aik. 359; Grant v. Knapp, 40 Vt. 163; Perry v. Carr, 42 id. 55. The plaintiff had no right of possession, therefore cannot recover. Wickham v. Freeman, 12 Johns. 183; Cutting v. Cox, 19 Vt. 517; 1 Chitty's Pl. 200-204; Ripley v. Yale, 16 Vt. 261; Palmer v. Tuttle, 39 N. H. 486. A justification of the entry will cover the whole declaration. Kingsbury v. Pond, 3 N. H. 511; Warner v. Hoisington. 42 Vt. 94; also, see Paul v. Slason, 22 id. 235; Fullam v. Stearns, 30 id. 454; Graves v. Severens, 40 id. 640.

Belden & May, for plaintiff.

The public can only use roads for the purposes of travel. Angell on Highways, § 305 et seq.; Perley v. Chandler, 6 Mass. 454; Chamberlain v. Enfield, 43 N. H. 356. The highway surveyor is simply a ministerial officer to expend the money appropriated. Gen. Stats., ch. 25, §5; Gassett v. Andover, 21 Vt. 342; Clark v. Corinth, 41 id. 449. But he must not exercise the rights of the owner of the fee Felch v. Gilman et al., 22 Vt. 38; Angell on Highways, § 304 et seq.; Baxter v. Turnpike Co., 22 Vt. 114. The owner of the fee owns the soil of the highway and the crops and emblements thereon. Goodtitle v. Alker, 1 Burr. 133; Woodruff v. Neal, 28 Conn. 165; Stackpole v. Healy, 16 Mass. 33; Holden v. Shattuck, 34 Vt. 336. gives a remedy for the violation of every private right. Yates v. Joyce, 11 Johns. 136; Ashley v. White, 2 Ld. Raym. 955. For such a violation damages are presumed, and the maxim "de minimis non · curat lex" does not apply. 2 Hill. on Torts, 74, 91; Laflin v. Willard, 16 Pick. 64; Sturgis v. Laflin, 11 Vt. 433; Phelps v. Morse, 9 Gray, 207; Paul v. Slason et al., 22 Vt. 231; Fullam v. Stearns, 30 id. 443.

The law

Ross, J. The only questions arising from the exceptions is, whether the court were correct in holding that Mrs. Drew, if justified in cutting the grass growing in the highway over the land of the plaintiff, that her children might go and come from school, in the highway, without getting their clothes wet, made herself a trespasser ab initio in carrying away the grass, and giving it to the horse; and that the rule de minimis non curat lex did not apply.

Cole v. Drew.

That the jury must therefore return a verdict for the plaintiff for

some sum.

The owner of the soil over which a highway is located is entitled to the emblements growing thereon, and to the entire use of the land, except the right which the public have to use the land and materials thereon for the purpose of building and maintaining a highway, suitable for the safe passage of travelers. This doctrine has been long established by numerous authorities. Goodtitle v. Alker, 1 Burr. 122; Holden v. Shattuck, 34 Vt. 336; Perley v. Chandler, 6 Mass. 454; Stackpole v. Healy, 16 id. 33; Jackson v. Hathaway, 15 Johns. 447. These authorities fully establish that he may maintain trespass, or ejectment, for injuries to his rights as such owner of the soil. The public acquire only an easement in the land taken, consisting of the right to use the materials, in and upon the land taken, for building and maintaining a suitable way, and of using the way, when constructed, for passing and repassing. The public and the highway surveyor, who is the agent of the public for certain purposes, have no right to appropriate any of the materials or emblements of the land taken to any other purpose. The defendant wife could exercise, under the authority of the highway surveyor, no greater rights than those which the law had conferred on the surveyor. The grass, though properly cut by Mrs. Drew, under the direction of the highway surveyor, because it interfered with the use of the land for the purposes of a highway, was, when cut, the property of the plaintiff. Mrs. Drew had no right to use it for feeding her husband's horse. By so doing she overstepped the license and authority which the law conferred upon the highway surveyor, and through him upon her, and made herself a trespasser ab initio. If a man abuse an authority or license given by law he renders himself a trespasser ab initio, as was resolved in the Six Carpenters' Case, 8 Coke, 146. She, under the authority and license given by the law to cut the grass, by feeding the grass to the horse, clearly invaded a right still belonging to the plaintiff as the owner of the soil. Such cutting and appropriation of the grass, under the claim of a right by the defendant for fifteen consecutive years, would furnish very strong, if not conclusive, evidence of the acquisition of the ownership of the soil, by the defendant, by adverse use. The right to take the herbage, or emblements, is about all that is left to the owner of soil burdened with the easement of a public highway. When one takes this right from him he appropriates generally the

McClary Lowell.

only remaining right of the owner of the soil. Such an invasion of a right, we think, always imports some damage, though no pecuniary loss results therefrom. We think Fullam et al. v. Stearns et al., 30 Vt. 443, fully establishes that the maxim, de minimis non curat lex, is never properly applied to an injury for the invasion of a right, and it does not apply to this case. The defendants insist that, under the pleadings, if the plaintiff would recover for the appropriation of the grass, he should have never assigned. No such question appears to have been raised in the court below.

Judgment of the county court is affirmed.

Plaintiff was traveling from A. to L., a distance of eight miles, on Sunday, te visit his two boys, when he was injured by insufficiency in the highway. In an action against the town, held, that a recovery would not be defeated by statute, prohibiting travel on Sunday, except for attendance at places of moral instruction and from necessity. (See note, p. 367.)

ACTION to recover damages alleged to have been sustained by in. sufficiency of a highway in the defendant town. It appears that plaintiff was traveling on Sunday from Albany to Lowell, to visit his two boys, when the injury occurred. The boys lived away from home, as the wife of plaintiff was dead. Defendant requested the court to charge that the right of plaintiff to recover was barred by Gen. Stats., ch. 93, § 3, prohibiting travel on Sunday. The court refused so to charge, but ruled that the statute was no defense. Verdict for plaintiff. Defendant excepted.

W. D. Crane, for plaintiff, cited 4 Cush. 243; Commonwealth v. Knox, 6 Mass. 76; Pearce v. Atwood, 13 id. 354; 2 Parsons on Contracts, ch. 3, p. 262, a. b. and c., 4th ed.; Hooper v. Edwards, 18 Ala. 280, cited in 2 Parsons on Contracts, 262; Logan v. Mathews, Barr. 417; Whitcomb v. Gilman, 35 Vt. 297.

Benton & Cross, H. C. Wilson, and Powers, for defendants, cited Hinckley v. Penobscot, 42 Me. 89; Bryant v. Biddeford, 39

McClary v. Lowell.

id. 193; Jones v. Andover, 10 Allen, 18; Lyon v. Strong, 6 Vt. 219; 1 Hilliard on Torts, 161, 162; Bosworth v. Swansey, 10 Metc. 363; Cratty v. Bangor, 57 Me. 423.

WHEELER, J. Parents are under moral obligations to attend to the welfare of their children at all times during childhood and youth. These obligations cannot be fully satisfied without personal association and acquaintance when reasonably practicable. They are morally bound to improve all fit opportunities for the discharge of these duties. Both the constitutional and the statutory provisions relating to the observance of the Sabbath, in the laws of this State, were provided for the encouragement of the observance of moral duties on that day, in preference to attention to secular matters. All these provisions were doubtless intended to be harmonious. Section 2 of chapter 93 of the General Statutes, which relates to this subject, permits attendance upon public assemblies held on the Sabbath for the purpose of moral instruction. The necessity provided for in the exceptions to the prohibitions of sections 1 and 3 of the same chapter, is a moral and not a physical necessity. An act which, under the circumstances, is morally fit and proper to be done on the Sabbath is not prohibited by either of these sections. PARSONS, J., Com. v. Knox, 6 Mass. 76, Flagg v. Millbury, 4 Cush. 243. On this Sabbath the plaintiff was in Albany and his two boys were in Lowell, eight miles distant from him. He could not fully discharge his obligation to them. without being where they were. Under these circumstances it was morally proper for him to travel to them. No other facts or circumstances were necessary to show the fitness of this traveling. His duties to his children arose out of his relation to them; the propriety of the journey, out of its necessity to the discharge of his duties. No question appears to have been made at the trial about the existence of these facts, therefore no trial of any question of fact is necessary to determine the legality of the traveling. The traveling, in which the plaintiff was engaged at the time of the injury he is seeking to recover for, was not unlawful, therefore it is unnecessary to determine how his right of recovery would have been affected if the traveling had been illegal.

Judgment affirmed.

NOTE.-See Myers v. Meinrath, 3 Am. R. 268, and note thereto, wherein the cases are tollected; also, see Hill v. Wilkes, 5 id. 540, and Bradley v. Rea, 4 id. 524. — REP.