Adams v. Emerson

23 Mass. 57

• Court: Massachusetts Supreme Judicial Court
• Decided: November 10, 1827
• Status: Published

Opinion

Wilde J.

delivered the opinion of the Court. We consider this a very clear case. The locus in quo, although part of a turnpike road, is the soil and freehold of the plaintiff. He has the exclusive right of property in the land ; subject however to the easement or rights incident to a public highway ; such as the right of passage over it, and the right which the turnpike corporation has to construct a convenient pathway, and to keep it always in good repair. To accomplish these purposes the corporation may dig up and remove from place to place, within the limits laid out for the road, any earth, sand and gravel, and may dig or cut up sods and turf;¹ but it by no means follows that the corporation has the right of herbage, which is the exclusive property of the owner of the soil, as well as all trees, mines, &c.

The corporation has no right of property in the land, but only a servitude or easement ; and this does not clash with the plaintiff’s exclusive right of property in the land;² so that there is no pretence for saying that the plaintiff and the corporation are tenants in common.

It was once doubted whether ejectment or other real actian would lie for the soil of a road or highway, because, it was said, full seisin could not be delivered ; and a dictum of Lord Hardioicke was quoted to that effect, in the case of Goodtitle v. Alker et al. 1 Burr. 133 ; but that doubt was removed by the decision in that case ; and very clearly it had no foundation in principle. And it was never doubted that the owner of the soil over which a highway was laid, could maintain trespass for an injury done to the soil.

These principles are well settled by all the authorities, and it is very clear that the plaintiff is entitled to recover.¹ The defendant, therefore, according to the agreement of the parties, must be called.

Defendant defaulted.

1 So it may cause a dwellinghouse to be erected for the toll-gatherer, and trees to be cut down, and a cellar and a well to be dug, for the accommodation of the house, within these limits. Tucker v. Tower, 9 Pick. 109.

2 See 3 Kent’s Comm. (3d ed.) 432, 433; Tucker v. Tower, 9 Pick. 111, Tyler v Hammond, 11 Pick. 214; United States v. Harris, 1 Sumner, 37.

1 See 3 Kent’s Comm. (3d ed.) 432, 433, note a, and cases there cited; Robins v. Borman, 1 Pick. (2d ed.) 123, note l, and cases there referred to; Chambers v Furry, 1 Yeates, 169; Hart v. Chalker, 5 Connect. R. 311; 1 Chitty on PI. (6th Am. ed.) 200.