Caleb Mills v. Stark
Superior Court of New Hampshire
Replevin for cattle. The defendant avowed the taking, because the close, in which, &e. was the close of the defendant, and the said cattle being then and there doing, damage, he avowed the taking of them as a distress for such damage.
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Replevin for cattle. The defendant avowed the taking, because the close, in which, &e. was the close of the defendant, and the said cattle being then and there doing, damage, he avowed the taking of them as a distress for such damage. The plaintiff replied to this avowry, that he was seized of .a close adjoining the said close of the defendant, that the cattle were lawfully in a highway between the two closes, and escaped into the defendant’s close through defect of fences, which the defendant was hound to repair. To this.the defendant answered, that the cattle were not lawfully in the…
1Opinion of the Court
The opinion of the court was delivered by
Richardson, C. J.
It must now be considered as settled, in this state, that no man is bound to fence against cattle that are upon the highways, unless they are rightfully there. Avery v. Maxwell.
The public have in highways only a mere right of passage, the soil, and freehold being in those, through whose lands, the highways may have been opened. 1 N. H. Rep. 16, Makepeace v. Warden; 1 Burr. 143; 2 Strange, 1004, Lade v. Shepherd; 15 Johns. Rep. 447, Jackson v. Hathaway.
And the owner of the soil in a highway may have trespass, if the cattle of others do…
2Cases cited2 opinions
- Stackpole v. HealyMassachusetts Supreme Judicial Court · 1819
- Makepeace v. WordenSuperior Court of New Hampshire · 1816