Cole v. Drew

44 Vt. 49

• Court: Supreme Court of Vermont
• Decided: August 15, 1871
• Status: Published

Opinion

The opinion of the court was delivered by

Ross, J.

The only question arising from the exceptions is, whether the court were correct in holding that Mrs. Drew, if justified in cutting the grass growing in the highway over the laud of the plaintiff, that her children might go and come from school, in the highway, without getting their clothes wet, made herself a trespasser ah initio in carrying away .the grass, and giving it to the horse ; and that the rule, de minimis non curat lex, did not apply. That the jury must therefore return a verdict for the plaintiff for some sum.

The owner of the soil over which a highway is located is entitled to the emblements growing thereon, and to the entire use of the land, except the right which the public have to use the land and materials thereon for the purpose of building and maintaining a highway, suitable for the safe passage of travelers. This doctrine has been long established by numerous authorities. Goodtitle v. Alker, 1 Burr., 133; Holden v. Shattuck, 34 Vt., 336; Perley v. Chandler, 6 Mass., 454; Stackpole v. Healy, 16 Mass., 33 ; Jackson v. Hathaway, 15 Johns., 447. These authorities fully establish that he may maintain trespass, or ejectment, for injuries to his rights as such owner of the soil. The public acquire only an easement in the land taken, consisting of the right to use the materials, in and upon the land taken, for building and maintaining a suitable way, and of using the way, when constructed, for passing and repassing. The public and the highway surveyor, who is the agent of the public for certain purposes, have no right to appropriate any of the materials or emblements of the land taken to any other purpose. The defendant wife could exercise, under the authority of the highway surveyor, no greater rights than those which the law had conferred on the surveyor. The grass, though properly cut by Mrs. Drew under the direction of the highway surveyor, because it interfered with the use of the land for the purposes of a highway, was, when cut, the property of the plaintiff. Mrs. Drew had no right to use it for feeding her husband’s horse. By so doing she overstepped the license and authority which the law conferred upon the highway surveyor, and through him, upon her, and made herself a trespasser ab initio. If a man abuse an authority or license given by law, he renders himself a trespasser ab initio, as was resolved in the Six Carpenters’ case, 8 Coke, 146. She, under the authority and license given by the law to cut the grass, by feeding the grass to the horse, clearly invaded a right still belonging to the plaintiff as the owner of the soil. .Such cutting and appropriation of the grass, under the claim of a right by the defendant for fifteen consecutive years, would furnish very strong if not conclusive evidence of the acquisition of the ownership of the soil, by the defendant, by adverse use. The right to take the herbage, or emblements, is about all that is left to the owner of soil burdened with the easement of a public highway. When one takes this right from him, he appropriates generally the only remaining right of the owner of the soil. Such an invasion of a right, we think, always imports some damage, though no pecuniary loss results therefrom. We think Fullam et al. v. Stearns et al., 30 Vt., 443, fully establishes that the maxim, de minimis non curat lex, is never properly applied to an injury for the invasion of a right, and it does not apply to this case. • The defendants insist that, under the pleadings, if the plaintiff would recover for the appropriation of the grass, lie should have new assigned. No such question appears to have been raised in the court below.

Judgment of the county court is affirmed.