Curia, per
It is objected tliat the exception came too late, and that it is too general. We must presume it was taken in time; otherwise the court would not have allowed it. As to the generality of the exception, the ftbjection cannot prevail. Take it in connexion with the cnSjrge, and the points are sufficiently specific. v
The court certainly erredlln charging, that all the land not enclosed in fence, was a public highway, though it be ten rods wide. The public is entitled to the use of four rods only, at most; and a man may occupy his land withоut fencing it, if he chooses to do so. It would certainly be very bad husbandry; but he may plant and sow his grounds unenclosed, and may maintain trespass, too, against the owners of cattle which may injure him, unless there is sоme town regulation permitting cattle to run at large. (19 John. 385.)
It is no doubt a nuisance to dig a ditch, or lay logs in the highway; and whoever sustains an injury from such a cause, without any fault of his own, may maintain an action agаinst the author of it.
In the case of Butterfield v. Forrester, (11 East, 60, 61,) the defendant had obstructed the street of Derby, to make some repairs to his house. The plаintiff rode furiously against the obstruction ; when, with ordinary care, he might havе avoided it; and the court held that no action lay. Lord Ellenborough remarks, “ Two things must concur, to support this action ; an obstruction in the \ road, by thе fault of the defendant; and no want of ordi-jnary care to avоid it, on the part of the plaintiff.” And he (instances the ease of рersons travelling upon what is considered the wrong side of the roаd; which will not authorize another purposely to ride against them.
Nеgligence by the defendant, and ordinary care by the plaintiff, arе necessary to sustain the action.
In this case, there was no want of care by the servant of the plaintiff below. The only question is, was there neg-,-
The court below should have charged the jury to en-quire whether the tree lay in the highway. If so, then the plaintiff below was entitled to recover. But if it was not within the highway, the verdict shоuld have been for the defendant below- Though it may have been аn act of carelesness in him, to leave the tree so neаr the highway r yet, as the public have no right beyond the highway, whether enсlosed or not; and as the defendant below had a right to use his land in any way not injurious to his neighbors or the public ; and had used the place in question for a wood-yard, for near 40 years, he ought not to be responsible, though the plaintiff below may have unfortunately suffered.
f If thеre was culpable negligence in this case, I consid- 1 I er the defendant below responsible. The master is ac- J countable for the acts of his servant in and about his ordinary business. The servant, in this case, placed the wood where the defendant below, himself, had bеen accustomed to place his wood for near 40 yeаrs. This was sufficient to justify the servant to the defendant below; and, in my judgment, sufficient to render the latter responsible, if the act itself was reprеhensible. I am of opinion that the judgment be reversed, and a venire de novo awarded bv the court below.
Judgment reversed-