Harlow v. Humiston

Curia, per Savage, Ch. Justice. It is objected tliat the exception came too late, and that it is too general. We must presume it was taken in time; otherwise the court would not have allowed it. As to the generality of the exception, the ftbjection cannot prevail. Take it in connexion with the cnSjrge, and the points are sufficiently specific. v The court certainly erredlln charging, that all the land not enclosed in fence, was a public highway, though it be ten rods wide. The public is entitled to the use of four rods only, at most; and a man may occupy his land without fencing it, if he chooses to do so. It would certainly be very bad husbandry; but he may plant and sow his grounds unenclosed, and may maintain trespass, too, against the owners of cattle which may injure him, unless there is some town regulation permitting cattle to run at large. (19 John. 385.) It is no doubt a nuisance to dig a ditch, or lay logs in the highway; and whoever sustains an injury from such a cause, without any fault of his own, may maintain an action against the author of it. In the case of Butterfield v. Forrester, (11 East, 60, 61,) the defendant had obstructed the street of Derby, to make some repairs to his house. The plaintiff rode furiously against the obstruction ; when, with ordinary care, he might have avoided it; and the court held that no action lay. Lord Ellenborough remarks, “ Two things must concur, to support this action ; an obstruction in the \ road, by the fault of the defendant; and no want of ordi-jnary care to avoid it, on the part of the plaintiff.” And he (instances the ease of persons travelling upon what is considered the wrong side of the road; which will not authorize another purposely to ride against them. Negligence by the defendant, and ordinary care by the plaintiff, are necessary to sustain the action. In this case, there was no want of care by the servant of the plaintiff below. The only question is, was there neg-,- [192] ligence in the defendant below ? And this depends on the fact of the tree being in the road or not. The evidence, I think, shews it was not. The road appears to be but two and two and a half rods wide. Though the statute directs all roads thereafter laid out, to be four rods wide, yet it does not appear that this road was ever laid out under that statute. This is probably a public road, from having been so used for more than 20 years. The court below should have charged the jury to en-quire whether the tree lay in the highway. If so, then the plaintiff below was entitled to recover. But if it was not within the highway, the verdict should have been for the defendant below- Though it may have been an act of carelesness in him, to leave the tree so near the highway r yet, as the public have no right beyond the highway, whether enclosed or not; and as the defendant below had a right to use his land in any way not injurious to his neighbors or the public ; and had used the place in question for a wood-yard, for near 40 years, he ought not to be responsible, though the plaintiff below may have unfortunately suffered. f If there was culpable negligence in this case, I consid- 1 I er the defendant below responsible. The master is ac- J countable for the acts of his servant in and about his ordinary business. The servant, in this case, placed the wood where the defendant below, himself, had been accustomed to place his wood for near 40 years. This was sufficient to justify the servant to the defendant below; and, in my judgment, sufficient to render the latter responsible, if the act itself was reprehensible. I am of opinion that the judgment be reversed, and a venire de novo awarded bv the court below. Judgment reversed-