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and private streams. The jury have decided that Little River belongs to the former class, upon the exhibition to them of much testimony, by both parties. And there does not appear to be any sufficient reason why the verdict should be disturbed.
Both the motion for a new trial and the exceptions are overruled, and there must be judgment on the verdict. D. T. Granger and S. Greenleaf, for defendant. T. J. D. Fuller, for plaintiff.'
(Reported 2 Show. 28.] TRESPASS. The defendant pleads, that there was a highway from such a place to such a place; that the plaintiff stopped the same so as he could not pass, and therefore he went over the plaintiff's close, doing as little harm as he could.
And held good upon demurrer; for if the way be so foul as is not passable, I may then justify the going over another man's close next adjoining
Judgment for the defendant.?
* See Treat v. Lord, 42 Me. 552 ; Moore v. Sanborne, 2 Mich. 519 ; Morgan v. King, 35 N. Y. 454; Olson v. Merrill, 42 Wis, 203. But cf. Hubbard v. Bell, 54 Ill. 110 ; Levis v. Coffee County, 77 Ala. 190.
In Hooper v. Hobson, 57 Me. 273, it was held, that if persons driving logs in a stream go upon the banks, they are liable for the actual damage caused to the riparian proprietors.
The right of a riparian owner to damages for being cut off from the river was allowed in Lyon v.
Fishmongers' Co., 1 Ap. Cas. 662 ; Chapman v. Oshkosh & Miss. R. R. Co., 33 Wis. 629. Contra, are Gould v. Hudson River R. R. Co., 6 N. Y. 522 ; Tumlin v. Dubuque R. R. Co., 32 Iowa, 106 ; Stevens v. Paterson R. Co., 5 Vroom, 532; Thayer v. New Bedford R. R. Co., 125 Mass. 253. See Barney v. Keokuk, 99
V. S. 324.
On rights in ice, see Gould, Waters, $ 191.
See The Queen V. Ramsden, E. B. & E. 949 ; Dawes v. Hawkins, 8 C. B. N. S. 848.
[Reported 2 Stra. 1004.) Upon trial of an action of trespass a case was made, that the place where the supposed trespass was committed was formerly the properts of the plaintiff, who some years since built a street upon it, which has ever since been used as a highway. That the defendant bad land contiguous parted only by a ditch, and that he laid a bridge over the ditch. the end whereof rested on the highway. And it was insisted for the defendant, that by the plaintiff's making it a street, it was a dedication of it to the public; and therefore however he might be liable to an indictment for a nuisance, yet the plaintiff could not sue him as for a trespass on his private property. Sed per CURIAM, It is certainly a dedication to the public, so far as the public has occasion for it, which is only for a right of passage. But it never was understood to be a transfer of the absolute property in the soil. So the plaintiff had judgment.'
DOVASTON V. PAYNE.
COMMON PLEAS. 1795.
[Reported 2 H. Bl. 527.] Replevin for taking the cattle of the plaintiff. Avowry, that the defendant was seised in fee of the locus in quo, and took the cattle damage feasant. Plea, that the locus in quo "lay contiguous and vest adjoining to a certain common and public king's highway, and that the defendant and all other owners, tenants and occupiers of the said place in which, &c., with the appurtenances, for the time being, from time whereof the memory of man is not to the contrary, have repaired and amended, and have been used and accustomed to repair and amend, and of right ought to have repaired and amended, and the said defendant still of right ought to repair and amend the hedges and fences between the said place in which, &c., and the said highway, when and so often as need or occasion hath been or required, required to prevent cattle being in the said highway from erring and escaping thereout into the said place in which, &c., through the defects and defaults of the said hedges and fences, and doing damage there.
1 See Peck v. Smith, 1 Conn. 103.
In Goodtitle d. Chester v. Alker, 1 Burr. 133 (1757), it was held that ejectment would lie for land, although there was a high way over it: "See Cincinnati v. White, o Pet. 431, contra, criticised in 2 Sm. L. C. (8th Am. ed.) 170-172.
or shall or may be
qua because the said hedges and fences between the said place in which,
Xc, and the said highway, before and at the time when, &c., were ruiHous, broken down, prostrated, and in great decay for want of needful and necessary repairing and amending thereof, the said cattle in the said declaration mentioned just before the said time when, &c., being in the said highway erred and escaped thereout, into the said place in which, &c., through the defects and defaults, &c.” To tliis plea there was a special demurrer, For that it is not shown in or by the said plea, that the said cattle before the said time when, &c., when they escaped out of the said highway into the said place in which, &c., were pussing through and along the said highway, nor that they had any right to be there at all &c."
Williams, Serjt., in support of the demurrer.
Lord Ch. J. EYRE. I agree with my Brother Williams as to the general law, that the party who would take advantage of fences being out of
as an excuse for his cattle escaping from a way into the land of another, must show that he was lawfully using the easement when the cattle so escaped. This therefore reduces the case to a single point, na inely, Whether it does not appear on the plea, to a common intent, that the cattle were on the highway, using it in such a manner as the out her had a right to do, from the words - being in the said highway?" Th is is a different case from cattle escaping from a close, where it is necessary to show that the owner had a right to put them there, because a highway being for the use of the public, cattle may be in the highway
common right; I doubt therefore whether it requires a more particular statement. It would certainly have been more formal to have said that the cattle were passing and repassing, and if the evidence had proved that they were grazing on the way, though the issue would have been literally, it would not bave been substantially proved. But I doubt whether the being in the highway might not have been traversed. and if the being in the highway can be construed to be certain to a common intent, the plea may be supported, notwithstanding there is a special demurrer, for a special demurrer does not reach a mere literal expression. The precedents indeed seem to make it necessary to state that the cattle were passing and repassing, but they are but few; yet upon the whole, I rather think the objection a good one, because those fornis of pleading are as cited by my Brother Williams.
BELIER, J. This is so plain a case that it is difficult to make it a grou nd of argument. But my Brother Heywood says, there is a difference between trespass and replevin in the rules of pleading. In some cases there is certainly a material difference in the pleading in the two actions, though in others they are the same. One of the cases in which they differ, is that if trespass be brought for taking cattle which were distrained damage feasant, it is sufficient for the defendant to say that he was possessed of the close, and the cattle were doing damage: but in replevin the avowant must deduce a title to the close.
Wherever there is a difference, it is in favor of trespass and against replevin ; for in trespass an excuse in a plea is sufficient, but in an avowry a title
be shown. This brings me to the question, Whether the plea on this record be good to a common intent? Now I think that the doctrine of certainty to a common intent will not support it. Certainty in pleading has been stated by Lord Coke, Co. Lit. 303, to be of three sorts, viz., certainty to a common intent, to a certain intent in general, and to a certain intent in every particular. I remember to have heard Mr. Justice Aston treat these distinctions as a jargon of words, without meaning. They have, however, long been made, and ought not altogether to be departed from. Concerning the two last kinds of certainty, it is not necessary to say anything at present. But it should be remembered, that the certain intent in every particular appliés only to the case of estoppels, Co. Lit., ibid. By a common intent I understand that when words are used, which will bear a natural sense, and also an artificial one, or one to be made out by argument or inference, the natural sense shall prevail : it is simply a rule of construction and not of addition : common intent cannot add to a sentence words which are omitted. There is also another rule in pleading, wbich is, that if the meaning of words be equivocal, they shall be taken most strongly against the party pleading them. There can be no doubt that the passing and repassing on the highway was traversable ; for the question, Whether the plaintiff was a trespasser or not? depends on the fact whether he was passing and repassing and using the road as a highway, or whether his cattle were in the road as trespassers; and that which is the gift of the defence must necessarily be traversable. A most material point therefore is omitted, and I think the plea would be bad on a general demurrer. But here there is a special demurrer, and as the words are equivocal, they are informal.
HEATH, J. The law is as my Brother Williams stated, that if cattle of one man escape into the land of another, it is no excuse that the fences were out of repair, if they were trespassers in the place from whence they came. If it be a close, the owner of the cattle must show an interest or a right to put them there. If it be a way, he must show that he was lawfully using the way; for the property is in the owner of the soil, subject to an easement for the benefit of the public. On this plea it does not appear whether the cattle were passing and repassing, or whether they were trespassing on the highway; the words used are entirely equivocal. ROOKE, J., of the same opinion.
Judgment for the defendant.
1 “There can be no easement, properly so called, unless there be both a servient and a dominant tenement. There is in this case no dominant tenement whatever. It is true that in the well-known case of Doraston v. Payne, 2 Sm. L. C. 132, 6th ed. ; 2 H. Bl. 527, Mr. Justice Heath is reported to have said, with regard to a public highway, that the freehold continued in the owner of the adjoining land subject to an easement in favor of the public, and that expression has occasionally been repeated since that time.
BATEMAN v. BLUCK.
[Reported 18 Q. B. 870.] Trespass for breaking and entering the close of plaintiff, in the parish of St. Sepulchre, in the county of Middlesex, and pulling down a wall of plaintiff in the said close.
First plea : Not guilty. Issue thereon.
Second plea: That the said close and the said wall were not, nor was either of them, the close or wall of the plaintiff. Issue thereon.
Third plea : That the said parish of St. Sepulchre, before and at the time of the passing of Stat. 57 G. 3, c. xxix., was a part of the metropolis included within the weekly bills of mortality; and the said close was, before and at the time when &c., a paved public place within the true intent and meaning and subject to the provisions of the said Act, that is to say, a public footway pavement which had been and then was pa ved, cleansed, and lighted under the authority of the Commissioners acting under Stat. 12 G. 3, c. 68; and that the said close was not at the said time when &c., nor was any part thereof, a turnpike road or any part of any turnpike road; and that, just before the said time when &c, the plaintiff had, contrary to the provisions of the first mentioned Act, unlawfully laid in and upon the said public footway pavement
vers bricks &c., and had therewith formed and constructed in and
pon the said pavement the said wall in the declaration mentioned ; and, because, at the said time when &c., the said wall remained on and incumbering the said public pavement, and because the plaintiff then, upon the reasonable request of the defendant, refused to remove
same, the defendant, at the said time when &c., entered upon the said close for the purpose of pulling down the said wall, and removed the bricks and other materials to a small and convenient distance, and there left the same for the use of the plaintiff, doing no unnecessary da mage: which are the same alleged trespasses &c.
Replication : That the said close was not, at the time when &c., a pa ved public place within the true intent and meaning and subject to the provisions of the said first-mentioned Act. Issue thereon.
Fourth plea : That, before and at the said time when &c., there was That, however, is hardly an acenrate expression. There can be no such thing, according to our law, or according to the civil law, as what I may term an easement in gross. An easement must be connected with a dominant tenement. In truth, a public road or highway is not an easement, it is a dedication to the public of the occupation of the surf ace of the land for the purpose of passing and repassing, the public generally taking upon themselves (through the parochial authorities, or otherwise) the obligation of repairing it. It is quite clear that that is a very different thing from an ordinary easement, where the occupation remains in the owner of the servient tenement subject to the easement." Per Lord Cairns, L. J., in Rangeley v. Midland R. Co., L. R. 3 Ch. 306, 310.