Loker v. Damon

Shaw C. J. delivered the opinion of the Court. The plaintiff having proved title to the close, and having shown that the [287] defendants entered and removed the fence, the only question of law is, whether the defendants have supported their plea in bar. This plea is, that the locus in quo was at the time, &c. a town way, over which all persons had a right to pass, which was obstructed by the fences, and in order to pass, the defendants removed them, as they had a right to do. The trespass is alleged to have been committed in November, 1832. The only evidence offered to support this plea, is the order and record of the county commisioners, passed at the session of that board, September 18, 1832, as stated in the case. I do not now consider the effect of the amendment, but regard it as if the order had originally been, what it was made by the amendment, supposing it unobjectionable. Now the defendants contend, that this was an actual town way for the use of the citizens, from the time of the adjudication, and may be pleaded as such. But we think it impossible to maintain that position. It is not the magic of a judicial decree, that converts forests and morasses into actual highways. In fact many things are to be intermediately done, and this is plainly contemplated by the statute. In this case the owners of the land, over which the way was laid, were allowed until the 1st day of November following to remove from the premises any wood, timber trees, or other property not useful for the construction of the way. This being an order which the commissioners were empowered to make, would probably be deemed sufficient to protect the fences and the close, even against the town and its agents, provided there were growing crops on the soil, to the protection of which the fences and the maintenance of the close were necessary. It may be well admitted, that by force of such an order, the way is laid out to some purposes, as to justify the town and its agents to enter for the purpose of making and constructing the road and fitting it for travel. Cragie v. Mellen, 6 Mass. R. 7. But this does not sustain a plea, of its being a way for all citizens, before it has been so made and constructed. So if the town, intending not to take the whole time allowed them to make and complete the road, should finish it, and actually lay it open for travel, before the time fixed by the order, it might be considered as a highway, from the time it should be so in fact laid open and offered to the public [288] But where no agent of the town has entered for the purpose of making the road, where the time has not elapsed, allowed the town to make the road and lay it open for travel, we -are of opinion, that, by mere force of the adjudication, the place cannot be pleaded as an actual way for all travellers and citizens, and that the plea in bar is not supported. The consequence is, that the plaintiff is entitled to judgment. The Court are of opinion, that the direction respecting damages was right. In assessing damages, the direct and immediate consequences of the injurious act are to be regarded, and not remote, speculative and contingent consequences, which the party injured might easily have avoided by his own act. Suppose a man should enter his neighbour’s field unlawfully, and leave the gate open ; if, before the owner knows it, cattle enter and destroy the crop, the trespasser is responsible. But if the owner sees the gate open, and passes it frequently, and wilfully and obstinately or through gross negligence leaves it open all summer, and cattle get in,'it is his own folly. So if one throw a stone and break a window, the cost of repairing the window is the ordinary measure of damage. But if the owner suffers the window to remain without repairing a great length of time after notice ot the fact, and his furniture, or pictures, or other valuable articles, sustain damage, or the rain beats in and rots the window, this damage would be too re mote. We think the jury were rightly instructed, that as the trespass consisted in removing a few rods of fence, the proper measure of damage was the costs of repairing it, and not the loss of a subsequent year’s crop, arising from the want of such fence. I do not mean to say, that other damages may not be given for injury in breaking the plaintiff’s close, but I mean only to say, that in the actual circumstances of this case, the cost of replacing the fence, and not the loss of an ensuing year’s crop, is to be taken as-the rule of damages, for that part of the injury which consisted in removing the fence and leaving the close exposed. Judgment on the default, for the um of $V50 damages.