1 D. Chip. 204 | Vt. | 1814
The council for the plaintiff contended, that an action of ejectment would lie in this case. That at common law, the owner of the land adjoining a highway, who is considered as the owner of the soil of the highway, may maintain an action of ejectment, against a person encroaching upon, or inclosing any part of the highway. Ch. J. — That is the case in England, and, I presume in this State also, but that is a very different case from the present. There, the plaintiff is the owner of the soil of the highway, in which the king has an easement for all his subjects, and the recovery in ejectment is had subject to that easement. If the owner of the soil encroach^ no ejectment will lie against him ; there are other remedies for the public. If the plaintiff can, in this case, maintain his action of ejectment, although entitled to an easement only, a right of way over the