maxim of the common law, that where public convenience and necessity come in conflict with private life, the latter must yield to the former. A person travelling on a highway is in the exercise of a public, and not a private right. If he is compelled, by impassable obstructions, to leave the way, and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls within that maxim, which makes public convenience and necessity paramount.

It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compensation to the owner. If such an accidental, occasional and temporary use of land can be regarded as an appropriation of private property to a public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of temporary and impassable obstructions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be assumed, that the right to the use of land adjoining the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned.

It was also suggested, that the statutes of the Commonwealth, imposing the duty on towns to keep public ways in repair, and rendering them liable for damages occasioned by defects therein, furnish ample remedies in cases of obstructions, and do away with the necessity of establishing the rule of the common law in this Commonwealth, which gives the right in such cases to pass over adjacent lands. But this is not so. Towns are not liable for damages in those cases to which this rule of the common law would most frequently be applicable-of obstructions, caused by sudden and recent causes, which have not existed for the space of twenty-four hours, and of which the towns have had no notice. Besides, the statute liability of towns does not extend to damages such as

would ordinarily arise from the total obstruction of a highway; being expressly confined to cases of bodily injuries and damages to property. (St. 1850, c. 5; Canning v. Williamstown, 1 Cush. 451; Harwood v. Lowell, 4 Cush. 310; Brailey v. Southborough, 6 Cush. 141.)

From what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in necessity, it must be limited by that necessity; cessante ratione, cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impassable obstructions in the highway. What shall constitute such inevitable necessity or unavoidable accident, must depend upon the various circumstances attending each particular case. The nature of the obstruction in the road, the length of time during which it has existed, the vicinity or distance of other public ways, the exigencies of the traveller, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive province of the jury to pass, in order to determine whether any necessity really existed, which would justify or excuse the traveller. In the case at bar, this question was wholly withdrawn from the consideration of the jury, by the ruling of the court. It will therefore be necessary to send the case to a new trial in the court of common pleas.1

Exceptions sustained.

1 For right to destroy property of another in case of fire, see Am. Print Works v. Lawrence, 23 N. J. L. 9, 590.

EXCEPTIONS, SECTION 12. PRIVATE DEFENCE.

LIVERMORE v. BATCHELDER.

(141 Mass. 179.-1886.)

TORT for killing the plaintiff's dog. Trial in the Superior Court, without a jury, before Brigham, Ch. J., who found the following facts:

The plaintiff, on February 20, 1884, was the owner of a dog, which was duly licensed by the town of Reading, and wore a collar, duly marked as required by the Pub. Sts. c. 102, sec. 80.

On said February 20, the plaintiff's dog with another dog, came upon the defendant's premises and there killed and maimed hens of the defendant, which were in his hen-house or shed. The dogs were driven away, and, in about fifteen minutes afterwards, came again upon the defendant's premises and were running toward the same shed and hen-house of the defendant, when the defendant, having reasonable cause to believe that the dogs were proceeding to maim and kill others of his hens in said shed and hen-house, shot and killed the plaintiff's dog.

Upon these facts the judge ruled that the defendant's killing of the plaintiff's dog under the circumstances stated, was not in law justifiable; and thereupon found and ordered judgment for the plaintiff. The defendant alleged exceptions.

I. W. Richardson for the defendant.

J. G. Holt for the plaintiff.

HOLMES, J. The ruling of the court, as we understand it, meant that the facts found, without more, did not disclose a justification for killing the plaintiff's dog. It was found that the defendant had reasonable cause to believe that the dog was proceeding to maim and kill his hens, but not that he had reasonable cause to believe that it was necessary to kill the dog in order to prevent him from killing the hens. The justification, therefore, was not made out. (Wright v. Ramscot,

1 Saund. 84; Janson v. Brown, 1 Camp. 41. See Commonwealth v. Woodward, 102 Mass. 155, 161.)1

It is unnecessary to consider whether the common-law remedy is taken away by the Pub. Sts. c. 102, secs. 80-110. Exceptions overruled.

EXCEPTIONS, SECTION 13. PLAINTIFF A WRONG

DOER.

WHITE V. LANG.

(128 Mass. 598.-1880.)

TORT, under the Gen. Sts. c. 88, sec. 59, to recover double the amount of damage alleged to have been caused by the defendant's dog. Answer, a general denial.

At the trial in the Superior Court before Pitman, J., without a jury, it appeared that the plaintiff, on Sunday, April 8, 1877, was driving his horse and buggy along a public highway in the city of Boston; that, while so driving, the defendant's dog jumped at the head of the plaintiff's horse and frightened him so that he became unmanageable, ran and overturned the buggy, whereby the same and other property of the plaintiff was damaged; and that, before the accident, the defendant knew of no mischievous or vicious propensity in the dog to attack or harass persons or animals.

The defendant offered evidence to show that the plaintiff was unlawfully travelling on the Lord's day, and not from necessity or charity; but the judge ruled that these facts would constitute no defence, or prevent the plaintiff from recovering; and found for the plaintiff in double the amount of damage sustained by him. The defendant alleged exceptions.

H. E. Ware for the defendant.

E. T. Buss for the plaintiff.

1 A different rule obtains in many States under special statutes. (Marshall v. Blackshire, 44 Ia. 475; Hinckley v. Emerson, 4 Cow. 351; Cooley on Torts, 2d ed. 408, n.)

MORTON, J. We must assume, for the purposes of this case, that the plaintiff was unlawfully travelling on the Lord's day. But this fact does not defeat his right to recover, unless his unlawful act was a contributory cause of the injury he sustained. (McGrath v. Mervin, 112 Mass. 467; Marble v. Ross, 124 Mass. 44, and cases cited.) It has been held in this Commonwealth that if a person, who is unlawfully travelling on the Lord's day, is injured by a defect in the highway, or by a collision with a vehicle of another traveller, he cannot recover for the injury. This is upon the ground that his illegal act aids in producing the injury, or, in other words, is a contributory cause. (Lyons v. Desotelle, 121 Mass. 387; Connolly v. Boston, 117 Mass. 64.)

On the other hand, it has been held in several cases that if a person, who is at the time acting in violation of law, receives an injury caused by the wrongful or negligent act of another, Contra he may recover therefor if his own illegal act was merely a condition, and not a contributory cause of the injury. (Marble v. Ross, ubi supra; Steele v. Burkhardt, 104 Mass. 59; Kearns v. Sowdan, 101 Mass. 63, n.; Spofford v. Harlow, 3 Allen, 176.)

We are of opinion that the case at bar falls within the last named class. If a man while travelling is injured by an assault, the act of travelling cannot in any just sense be said to be a cause of the injury. It is true that, if he were not travelling, he would not have received the injury, but the act of travelling is a condition and not a contributory cause of the injury. The plaintiff when travelling was assaulted and injured by a dog for whose acts the defendant is responsible. (Gen. Sts. c. 88, sec. 59; LeForest v. Tolman, 117 Mass. 109; Sherman v. Favour, 1 Allen, 191.) The act of travelling had no tendency to produce the assault or the consequent injury; and therefore, though the plaintiff was travelling in violation of law, it does not defeat his right of recovery.

Exceptions overruled.