Hinks v. Hinks , 46 Me. 423 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

This is an action of trespass quare clausum. The defendant justifies under a right of way over the premises.

It appears that a road was laid out over the locus in quo and accepted in 1810, which has been used by the public ever since. The selectmen, after describing the limits of the road, express an opinion that “ two bars or gates may be kept up across the road.” This purports only to be the expression of their opinion. It may well be questioned whether they had authority to do more than to lay out the road. If they had, it does not seem that they attempted to do it. If the road is to be regarded as laid out and accepted, and as without gates or bars, the erecting them would be a nuisance and their removal would be justified.

But a road may be established by user. The rights of the public may be more or less extensive according to the user shown. In the present case, the evidence of the plaintiff tends to show a road encumbered with moveable bars or gates, for a long period of time.

But if the right of passage was subject to the limitation of bars or gates, still tbe right would exist. The defendant might, if she chose, pass over the premises in dispute. Her right of passage is indisputable. To do this, she must remove the bars; and she would not be liable in trespass for either their removal or her subsequent passage over the plaintiff’s land.

Nor does she become a trespasser by omitting to replace the bars. This is a mere nonfeasance, which does not make one a trespasser ab initio. 8 Coke, 146; Gardiner v. Campbell, 15 Johns., 401; Ferrin v. Symonds, 11 N. H., 363. Where the right to enter upon the land of another exists, the abuse of it will not sustain an action of trespass. The remedy is case. Edelman v. Yeakel, 3 Casey, (Penn.,) 26. So one who has a license in fact to pass and repass over the land of another, and abuses it by leaving a bar-way open, whereby the cattle of others enter and do damage, is not liable in an action of trespass, but only in case, for a breach of his duty to keep the bar-way closed. Stone v. Knapp, 28 Term., 502. Plaintiff nonsuit.

Tenney, C. J., and Cutting, May, Davis, and Kent,.J. J., concurred.