Felch v. Gilman

The opinion of the court was delivered by Bennett, J. This is an action of trespass quart clausum fregit. The first question presented is, can the plaintiff sustain this action against the defendants for going upon his lands to repair the highway, upon the grohnd that the selectmen of the town had not filed a certificate with the town clerk of the opening of the road. We think he cannot. This rdad was laid out in 1835; it had been fenced by the plaintiff about the same time, and he had accepted his land damages, and the town had made the road arid kept it in repair. It had been travelled by the public some twelve or thirteen years, and this without any objection from the plaintiff. It would now indeed be strange; if he shotild be allowed to trim rourid and sue persons, who travel the road, or who should go on to it to repair it. The road has in fact befen recognized by file town, as a public highway, arid they arfe bound to keep it in repair. The plaintiff has acquiesced iti treating it as a public highway, and it is now too late for him to object, that the town have not the right to repair it. The only remaining question is, can the action be maintained in consequence of the cutting of the trees to use in the necessary reparation of the' road ? No doubt the fee of the land remains in the landholder; and he may maintain trespass, subject to such rights, as are acquired under the easement, which the public get. The public have simply a right of way, and the powers and privileges incident to that right. We think digging the soil and [42] using the timber and other materials, found within the limits of the highway, in a reasonable manner, for the purpose of making and repairing the road, or bridges, are incident to the easement. It is a common principle, that when the law gives a right, it at the same lime impliedly gives what is necessary to a reasonable enjoyment of that right This incidental, and to some extent a contingent, right should no doubt be taken into the account in assessing the landholder’s damages. See Jackson v. Hathaway, 15 Johns. 453, per Platt, J. Peck v. Smith, 1 Conn. 103, per Swift, J. 2 Metc. 147, 151, 457, 467. In regard to the throwing the earth against or by the side of the fence, we do not perceive, that the right to repair the road was exercised in an unreasonable manner, in that respect; and if it had been, trespass upon the freehold would not lie for such an injury. The landholder’s remedy must be by a special action on- the case. The judgment of the county court is affirmed.