2 Vt. 480 | Vt. | 1829
pronounced the opinion of the court. — It appears to be a well established doctrine of the common law, that a highway may be created by dedication of it to the public by the owner of the soil, and the use of it by the public as such ; and in such case, the public acquire a right or easement, which the owner cannot lawfully interrupt, though the soil and freehold remain in him. (Lade vs. Shepard, 2 Stra. 1004.) The principle is, that if the way is of public convenience, and has been used by the public without interruption, a presumption arises of their right, and a dedication of it to them by the owner may be inferred. In Rex vs. Lloyd, 1 Camp. Cas. 260, Lord Ellenborough held, that a private individual who builds a street, or otherwise opens a thoroughfare to the public, without any visible marks of exclusion >or prohibition to persons using it, will, after a great number of
It was a point much discussed in the argument, whether away, thus created, imposed upon the town, in which it was situate, the charge of keeping it in repair. In the case of the King vs. the
If the locus in quo is a highway, it is a fi ght or franchise belonging to all the people, and ail indictment will lie for any obstruction of it. It is a clear principle of the common law, that every unauthorized obstruction of a highway is an indictable offence. In the case of The King vs. Russell, 6 East, 427, which was an indictment for a nuisance in a public street and highway, by obstructing the same, the court said, that the primary object of the street was for the free passage of the public, and any thing which impeded that free passage, without necessity, was a nuisance. The provision in the statute which imposes a fine not exceeding seven dollars, for placing any obstruction in the highway, to be recovered by complaint made to a justice of the peace, if applicable to this case, is merely cumulative, and does not take away the remedy by indictment at common law. It is true, as was resolved in Castle’s case, Cro. Jac. 644, that when a statute appoints a penalty for the doing of any thing, which was no of-fence before,and appoints how it shall be recovered,it shall be' punished by that means,and not by indictment; but it is otherwise,if ths doing of the thing was an offence at common law, and punishable before the making of the statute. The rule of distinction is very fully and clearly stated in the case of Rex vs. Robinson, 2 Burr, 799. It is there laid down by lord Mansfield, that where a statute creates a new offence, by prohibiting and making unlawful any thing which was lawful before, and appoints a specific remedy against such new offence, by a particular sanction and particular method of proceeding, that particular method of proceeding must be pursued, and no other ; but where the offence was an-tecedently punishable by a common law proceeding, there either method may be pursued, and the prosecutor is at liberty to proceed either by indictment at common law, or in the method prescribed by the statute, because there the sanction is cumulative, and does not exclude the common law punishment.
There is no doubt, that in criminal cases, the jury are the judges of the law as well as the fact. This is the true principle of the
Exceptions and motion in arrest overruled, and judgment against the respondent.