Judd v. Leonard

The council for the plaintiff contended, that an action of ejectment would lie in this case. That at common law, the owner of the land adjoining a highway, who is considered as the owner of the soil of the highway, may maintain an action of ejectment, against a person encroaching upon, or inclosing any part of the highway. Ch. J. — That is the case in England, and, I presume in this State also, but that is a very different case from the present. There, the plaintiff is the owner of the soil of the highway, in which the king has an easement for all his subjects, and the recovery in ejectment is had subject to that easement. If the owner of the soil encroach^ no ejectment will lie against him ; there are other remedies for the public. If the plaintiff can, in this case, maintain his action of ejectment, although entitled to an easement only, a right of way over the 205 land demanded, yet he will recover the soil itself. For such with us is the consequence of a recovery in this action, in which the land itself, not merely the easement, is demanded; and a recovery in this case, will give the plaintiff, not the easement only, which he has a right to claim, but the fee of the land. The remedy, at common law, in such case, was by assise. Whereupon the plaintiff suffered a nonsuit, to be set aside if the Court should be of opinion that the action could be supported. Afterwards, when the action was again called, the plaintiff’s council declared that they were satisfied that the action could not be supported. That at common law, asise, and not ejectment, was the proper remedy in such case.