Page:The Green Bag (1889–1914), Volume 05.pdf/162



Currerçt lopies,. .

fíotes of Chases, eté.

CURRENT TOPICS. Тнк KING'S HIGHWAY. — In an article in the last number of this magazine, entitled •' An Episode in Lord Coleridge's Court," the law laid down by the Lord Chief-Justice in the recent case of Harrison v. Duke of Rutland was pronounced " sound." We venture the contrary opinion, and according to the "Solicitors' Journal." '• the Court of Appeal have had to correct the Lord Chief-Justice in his law.'' That journal states the facts as follows : — "The Duke of К inland was shooting over his moor, across which ran a public highway, the soil of the road being in the duke, who was apparently also in possession. Harrison came on the road, not to travel to any place, but solely to remain upon the road and interfere with the sport of the duke. The duke, after repeated expostulations, — though that is not material, — had him seized and held upon the ground until a particular driving of grouse was over. That this was done with no unnecessary force seems clear. A sufficient number of men were employed to prevent any chance of a struggle, and while the assault was in progress the parties appear to have remained on pretty good terms. ' Sing us a song,' said Harrison from his recumbent position on the ground; ' I am fast enough.' ' I hope I am not hurting you,' replied the keeper who was holding him down." Notwithstanding the Chief-Justice read the duke a very severe lesson on his unlawful and high-handed conduct, and instructed the jury in substance that Harrison had a right to be upon the road without in terference from the duke, the jury awarded only five shillings damages. Even this was five shillings too much : for as the " Solicitors' Journal " clearly shows, there was no cause of action. (See 47 Albany Law Journal, 58.) Harrison had no right to be upon the road for any purpose except passage in a reasonable manner. His remaining on the road to annoy the duke was illegal; and in laying down bad law to the jury the Chief-Justice did not oven gain the cheap reputation of an advocate of equal rights, as between noble and commoner. Harrison was a trespasser on the duke's land, and the duke had a clear right to use reasonable force to restrain the trespass on his law ful employment on his own land. All this is well enough settled in Dovaston 7>. 1'ayne, 2 Sur. Lead. Cas. 157, and Queen v. Pratt. 4 E. & B. 460. The

former case is euphoniously summed up by Sir Fred erick Pollock as follows : — "The right is tu pass and repass alone. Free and fair is the king's highway; And that your pleader should well have known, Whose fault hath lost you this cause to-day. "And now the case is exceeding plain. Free and fair is the king's highway. He shews how yuur kine he might well distrain, And ye shew us nothing to say him nay."

In the latter case Pratt was convicted of trespass in standing on a public road, sending his dog into the adjoining cover of the owner of the land, and firing at a pheasant thus raised. Erie, J., said : — "I take it to be clear law that if in fact a man be on land where the public have the right to pass and repass, not for the purpose of passing and repassing, but for other and different purposes, he is in law a trespasser, like the cattle in Dovaston v. Payne." It would be singular if the owner of the soil in a street had not the right to eject from the sidewalk in front of his house an organ-grinder who should persist in remaining there and murdering music, after being implored to move on. In fact, this right was substantially adjudged in Adams v. Rivers, u Barb. 390, in which it was held that a man has no right to stand on the sidewalk in front of a house five minutes and use abusive language toward the owner; and the court asks : "Suppose a strolling musician stops in front of a gentleman's house, and plays a tune or sings an obscene song under his window, can there be a doubt that he is liable in trespass? " So in Fairbanks v. Kerr, 70 Pa. St. 86; s. c. i ' Am. Rep. 644, it was held that one has no right to make a. stump speech in the highway. The court observed : l: A pave ment before another's house may not be occupied to annoy him." One has no right to occupy o- obstruct a street or highway continuously and unreasonably, even for the transaction of lawful business, as for the delivery of distillery slops through pipes (People v. Cunningham, i Denio, 324), or for wagons to receive goods (King v- Russell, 6 East. 427). or for sawing timber (Rex v. Jones, 3 Camp. 230), or for receiving barrels from a cider-press (Dennis v. Cipperley, 17 Hun. 69). or for loading wagons by skids across a sidewalk (Callanan v. Gilman, 107 N. Y. 360; see