44 Vt. 49 | Vt. | 1871
The opinion of the court was delivered by
The only question arising from the exceptions is, whether the court were correct in holding that Mrs. Drew, if justified in cutting the grass growing in the highway over the laud of the plaintiff, that her children might go and come from school, in the highway, without getting their clothes wet, made herself a trespasser ah initio in carrying away .the grass, and giving it to the horse ; and that the rule, de minimis non curat lex, did not apply. That the jury must therefore return a verdict for the plaintiff for some sum.
The owner of the soil over which a highway is located is entitled to the emblements growing thereon, and to the entire use of the land, except the right which the public have to use the land and materials thereon for the purpose of building and maintaining a highway, suitable for the safe passage of travelers. This doctrine has been long established by numerous authorities. Goodtitle v. Alker, 1 Burr., 133; Holden v. Shattuck, 34 Vt., 336; Perley v. Chandler, 6 Mass., 454; Stackpole v. Healy, 16 Mass., 33 ; Jackson v. Hathaway, 15 Johns., 447. These authorities fully establish that he may maintain trespass, or ejectment, for injuries to his rights as such owner of the soil. The public acquire only an easement in the land taken, consisting of the right to use the materials, in and upon the land taken, for building and maintaining a suitable way, and of using the way, when constructed, for passing and repassing. The public and the highway surveyor, who is the agent of the public for certain purposes, have
Judgment of the county court is affirmed.