State v. Clements , 32 Me. 279 ( 1850 )

Tenney, J.,

orally.—The first argument offered for the defendant is of an uncommon type. Upon such arguments, it is always proper that the court should animadvert. Our remarks are not intended to apply to this argument in particular, on account of the vehemency of its invective, or the extent of its departure from known and salutary rules, though its aberrations have been very wide.

With the kindest feelings, and in relation to other cases as well as this, we announce that such irregularities are always viewed without approval. They conciliate no favor; they beget no advantages. Judges, like other men, may admire the pungent language of the distinguished, though unknown, Junius; the cutting satires and scorching invectives of the “ Great Sub Umbra.” But in tribunals of justice, such emanations are inappropriate and out of place.

Courts may be reluctant to arrest the torrents of impassioned zeal, or the fervors of eloquent denunciation; still they must decide only upon a stern and dispassionate application of rules, purely intellectual and unyielding.

They always find most pleasure, when counsel, both in their addresses to the jury and the court, keep most “ super antiguas vias legisd’ To every thing dehors the rales, we are forbidden to give any weight.

This case comes up on exceptions.

The defendant contends that he had legally an easement in the road, a right to pass there ; and that his acts in vindication of that right, were lawful; that he might rightfully persist in the use of the way, and exert the force necessary for protecting that'right. He requested of the Judge instructions to the jury “ as to his right of way from his deed in that road.” Such instructions were not given. Was the defendant injured by that refusal ? He exhibited a deed, and claimed that it gave to him a fee in one half the width of the road. It is not necessary for us to decide its effect, but our impression is, that it bounds his land by the east line of the road.

He however claims an easement. Black had built a road to his mill. Whether or not it was a public mill, like a gristmill to which all have a right to go, does not appear. There is nothing to prove that the, public had any right of way there. Black had built the road to his own mill, and had kept it in his possession. What is there to show that the road was any thing more than a private way, owned by Black ? How then had defendant any right to use it ?

His deed, though bounded by the road, did not necessarily constitute the road a public one. Nothing shows it to have been dedicated to the public. The defendant fails to show that he had a right of way there. Till he had offered proofs of that, he could not be aggrieved by the Judge’s refusal to give the instruction.

The instruction was not technically right. It assumed as matter of law that a certain degree of force, which a man had applied to another, in defence of rights, was more than he had a right to use. A man may use force enough to protect his property. Whether he has used more than that is matter to be settled by the jury. But the ruling did the defendant no injury, for he had no rights there to be protected.

But it is also urged that the defendant had a right of passing there by necessity. The principles, applicable to right of way by necessity, have no application to this case.

In the defendant’s request for instructions, he asked for general views, “as to the defendant’s right of way from his deed.” Counsel may ask that a particular principle be presented by the Judge to the jury. But the Judge is not bound to offer a treatise or general exposition of the law upon any subject. Exceptions overruled.