67 Vt. 102 | Vt. | 1894
This is an action of trespass to land with cattle. The question arises on demurrer to the rejoinder to the replication to the third plea. Said plea alleges that the defendant had a close adjoining the plaintiff’s close in which, etc., and that for more than fifteen years before the commencement of this suit a fence had been maintained between said closes, and that for a like space of time a gateway and a gate had been maintained for the plaintiff’s convenience through said fence to his dooryard, which said gate had all that time been built, maintained, and kept in repair by the plaintiff and the other owners and occupants of his said close, and that said gate, being a good' and sufficient gate to stop cattle, was left open, torn down, and carried away by the plaintiff, whereby and by means whereof the cattle in the declaration mentioned, at the said several times when, etc., then lawfully feeding and depasturing in the defendant’s said close, without the knowledge and against the will of the defendant, erred and escaped thereout into the plain
The replication alleges that before and at the said several times when, etc., there was a public highway between said closes, and that the plaintiff’s dooryard was contiguous thereto ; that said gateway was in said fence between said dooryard and said highway and on the side of said highway, and led from said dooryard into said highway; that before and at the said several times when, etc., in said plea mentioned, no gate had been there maintained nor kept in repair nor closed, and that along and upon the side of said highway contiguous to the defendant’s close, the defendant did not at the said several times when, etc., keep, maintain, nor have a fence sufficient to stop cattle that were feeding and depasturing therein from escaping therefrom into and upon said highway; and that at the said several times when, etc., said cattle did stray from the defendant’s close into and upon said highway and thence into the plaintiff’s close, and there committed the trespasses complained of.
The rejoinder alleges that if there is a public highway there as replied it is only a pent road, and wholly on the defendant’s close, and if any part of it is contiguous to the plaintiff’s close, it is necessary for the protection of the defendant’s close and crops therein to have a suitable fence between the plaintiff’s close and the defendant’s close and said pent road, and if it is necessary that a gate should be maintained for the convenience of the plaintifF in getting from his dooryard to said road, it is equally necessary and reasonable that said gate should be kept closed for the protection of the defendant’s close and crops therein ; that for more than fifteen years before the commencement of this suit, said gate and fence had been so kept and maintained in a good and sufficient manner on the line between the plaintiff’s close
The causes of demurrer assigned are, that the rejoinder is argumentative, double, and hypothetical. It is also claimed that it departs from the plea, and that this objection can be taken advantage of under the general demurrer.
The plaifitiff attacks the plea as bad in substance, for that it does not show a prescriptive nor other obligation on him to keep and maintain said gate. But if this is so, the fact that there was a gate there in the division fence that the plaintiff and those under whom he claims had kept and maintained for the purpose and in the manner alleged, which was sufficient to stop cattle, and which he tore down, and through which, by reason thereof, the cattle escaped into his close and did the damage complained of, makes the plea good, regardless of whether he was bound or not to maintain the gate, for thereby, in the circumstances disclosed in the plea, he became and was a wrongdoer, and the author of his injury, and therefore cannot be heard to complain.
The next question is whether the replication is good in substance. The public highway mentioned therein is not alleged to be an open highway, and as everything is to be taken most strongly against the pleader, it must be taken to-be a pent highway, which fulfils the allegation. It is conceded that the replication is bad if pent roads do not stand like open highways in the law of fences.
The statute provides that owners or occupants of adjoining-lands, when the lands of both parties are occupied, shall
Although the statute uses the general term “highways,” in providing that owners of lands are not bound to make and maintain fences on the sides of highways, and does not in terms distinguish between open public highways and pent roads, which are public, but not open, highways — yet, when all the provisions of the statute on the subject are construed together, as they must be, it is considered that the term “highways,” as used, was not intended to include, and does not include, pent roads.
The statute that the selectmen may allow pent roads to be
This statute thus construed is inconsistent with the idea that the defendant was bound to restrain her cattle from going upon said road and thence into plaintiff’s close the same as she would have been had said road been an open highway ; and it qualifies and restricts the statute that owners of lands are not bound to make and maintain fences on the sides of highways, and renders it inapplicable to pent roads, and leaves applicable to this case the statute that owners and occupants of adjoining lands, when the lands of both parties are occupied, shall make and maintain equal portions of the division fence between their respective lands.
It is frequently necessary to qualify and restrict general words in a statute, in order to harmonize the provision with other provisions and give them force and effect. Another instance of this kind may be found, we apprehend, in the statute against nuisances and obstructions in highways, which provides that if a person incloses a part of a highway, or erects a fence upon a highway, he shall incur a penalty. Here the general term “highway” is used, the same as in the statute we have been considering, yet no one would claim, we presume, that the statute intends to make it
We decide, therefore, that the replication is bad in substance, which renders it unnecessary to consider the other questions raised and discussed at the bar.
Judgment affirmed and cause remanded.