7 Barb. 297 | N.Y. Sup. Ct. | 1849
The important question arising on this appeal, and the only one which we understand was discussed in the courts below, is, whether the act of the legislature, empowering the electors of each town, at their annual town meeting, “ to make rules and regulations for ascertaining the sufficiency of all fences in such town; and for determining the times and manner in which cattle, horses or sheep shall be permitted to go at large oil highways,” is authorized by the constitution of this state. (1 R. S. 340, 341, § 5, sub. 11.) With respect to the first branch of the foregoing provision, it is not perceived in what respect it is in conflict with the constitution. Regulations for ascertaining the sufficiency of fences clearly fall within that branch of powers which the legislature may with propriety delegate to the towns. It is a branch of internal and domestic police, with respect to which the constitution is silent, and which can be better administered by the people in their primary assemblies, than by any other body. We entertain no doubt of the competency of the legislature to confer this power upon the electors of the several towns in the manner in which it has been granted.
It is the other branch of the section, namely, that which author
The provision of the constitution which it has been insisted is in derogation of the power claimed to be exercised by the legislature, is contained in the 6th section of the 1st article of the present constitution, and is in these words: “ Nor shall private property be taken for public use without just compensation.” This was taken from the 7th section of the 7th article of the constitution of 1821, and the latter from the 5th article of the amendments of the constitution of the United States. Our legislation on this subject commenced anterior to the adoption of the amendment to the United States’ constitution. The 15th section of the act for dividing the counties of this state into towns, passed March7,1788, (2 Greenl. 170,) authorized “the freeholders and inhabitants of each and every town, at their respective annual town meetings, from time to time, to make, establish,
The question whether the act under consideration is in conformity to the constitution or not has never been distinctly passed upon by this court, and I am not aware of any case in which it has been necessarily involved. We have dicta from highly respectable sources, adverse to the power, but accompanied with no examination of our recent legislation on the subject. Thus, in Holladay v. Marsh, (3 Wend. 142,) which arose before the revised statutes, Chief Justice Savage intimates a doubt whether it was competent for the legislature to authorize a town to permit domestic animals to depasture the highway. And he observes that the public have simply a right of passage over the
Neither in Holladay v. Marsh, Gidney v. Earl, White v. Scott, nor in The Tonawanda Railroad Co. v. Hunger, was the point we are considering necessarily involved, or in fact decided by the court. In all the cases in which the constitution- ■ ality of the act in question has been doubted, the reasons assigned have been, that the soil and grass growing on a highway, belong to the owner of the land, through which the road passes, and that the public have merely a right of passage; and that the effect of the town by-law is to take the private property of the owner of the land, without compensation, for the use of those who permit their cattle to run at large on the highway. This was the ground taken in the cases just cited, and by Judge Cowen in his Treatise, and in the note before cited, and in all the adjudged cases to which we have been referred. (1 Cowen’s Tr. 386, n. 1. Bush v. Brainard, 1 Cowen's Rep. 78, and note a. Jackson v. Hathaway, 15 John. 453, per Platt, J. Cortelyou v. Van Brundt, 2 Id. 357. 13 Mass. Rep. 258. 16 Id. 33. 12 Wend. 98. 6 East, 154. 3 Hill, 567,568. 4 Barb. 56. 5 Denio, 264, per Beardsley, Ch. J.) Whatever may have been the force of this argument prior to the revised statutes, it is obvious that since the 1st of January, 1830, it is based upon a false assumption. It takes for granted that the owner of the land receives compensation merely for the easement or right of passage. This is not so. The statute which regulates the ■compensation to be made to the owner through whose lands public highways are laid, does not confine the damages to what
It can not with truth be said that a by-law like the one in question, takes the property of one man and gives it to another, or even to the public, without compensation. The owner of the soil is not deprived of the pasturage, any more than he is of the way. He can enjoy both in common with his neighbors. In agricultural districts, and especially in new countries, the public benefit resulting from permitting cattle, horses and sheep to run at large, in highways, probably overbalances the increased expense of acquiring a title to the road. The intrusting the power of regulating the exercise of this right, to the electors of the town, in their annual town meeting, is in conformity to the analogy of our system of government, and will rarely ever lead to abuse. To no other persons could it more safely be confided. .No danger is to be apprehended that towns will multiply high
The cases which have been cited from the English courts, and from those of our sister states, merely show what the cotiimon law was upon this subject. They throw lid light upon the true interpretation of the revised statutes. Most of our own cases were based upon the former law, and in none of them, was the mind of the court brought to bear on the point we are considering. The supreme court of Massachusetts expressly concede, in Stackpole v. Healy, (16 Mass. 33,) “ that the legislature might, if they thought it expedient, provide by law, that for the future, the soil of all highways, that should bé laid out, should be vested in the public, and compensate the owner accordingly.” And again; they sáy, that “ the pasturage never made any part of the inducement or reason for laying out highways.” It has been shown that the statutes of this staté since 1830, taken as a wholé, subject the soil taken for a highway, not only to the easement of a right of way, but also to the right of pasturage for cattle, horses and sheep, at such times and in such manner as the electors of each town, at their annual town meeting, may prescribe. (Compare act relative to highways, 1 R. S. 513, §§ 54 to 101, with the act relative to town meetings, &c. 1 R. S. 340, § 5, sub. 11.) Those statutes, together with the twenty chapters of part 1, were finally passed, as one act, on the 3d of December, 1827, (1 R. S. 715, note,) and took effect the former' till the 1st of January,; 1828, and the latter on the 1st of Janm
If, then, the regulations of the town of Pierpont with respect to fences, and the running at large upon the highway, of cattle, horses and sheep, are valid, as we have shown they are, the defendant’s cattle were lawfully in the highway at the time the pretended trespass was committed; and the plaintiff, through whose defective fences they entered on his premises, can maintain no action for the trespass, and was justly nonsuited by the justice. (1 R. S. 355, § 44, supra.) It is settled that one is not bound • to fence except against such cattle as are lawfully in the adjoining close or the public highway. (Rust v. Low & Stanwood, 6 Mass. Rep. 90. Cowen’s Tr. part 1, 386, 387. 19 John. 385. 3 Wend. 145.)
The judgment of the St. Lawrence county court, affirming that of the justice, must be affirmed.
Paige, P. J., concurred.
The defendant in this case did not deny the trespass, but put his defence upon the insufficiency of the division fence of the parties, and the plaintiff’s fence upon the road.
But the authorities are full upon this point. “ The former proprietor,” says Platt, J., “ still retains his exclusive right in all
This being so, neither the town nor the state has power to give a right to individuals to use the land, only as a highway. All except this right of use by the public, remains in the owner, and can not be taken from him for private use, without his consent, or due process of law. (2 Kent, 340. Taylor v. Porter, 4 Hill, 140. Stackpole v. Healy, 16 Mass. 33. Wilkinson v. Leland, 2 Pet. 627, 655. Holladay v. Marsh, 3 Wend. 147. Wells v. Howell, 19 John. 385. 1 Cowen’s Rep. 87, note a.) Depasturing land is no part of its use as a highway ; and if the true construction of the statute is, that towns may license owners of cattle tq turn them at large on to the highways for the purposes of grazing, I have no doubt it is so far unconstitutional and void. (Const. art. 1, § 6. 1 R. S. 341, § 9.)
Judgment affirmed.