STATUTES AND ORDINANCES. 301 



is a city passing such an ordinance responsible for its viola- 

 tion.^^* 



It was held in Massachusetts that the public having no right 

 in a highway but that of passing, no permission can be given 

 to them to pasture their animals there.^^" In New York, a 

 provision permitting beasts to run at large upon public high- 

 ways was said to be unconstitutional, the court remarking: 

 "Cattle at large in the highway will not only trample down, 

 but also crop and eat the grass and herbage there growing; 

 and if the legislature have power to authorize their running 

 at large, the grazing cannot be wrongful. What would this 

 be but taking the private property of the owner of the land 

 used as a highway, and transferring it to the owner of the 

 cattle? In my judgment the legislature have no such power, 

 whether compensation be made or not, but certainly in no 

 case unless compensation is made. On this short ground, 

 I think the town regulation assuming to authorize cattle to 

 'run at large' was wholly void." ^^^ But the Supreme Court 

 dissented from this dictum in two later cases. ^^^ 



Where the owner of the animals also owns the soil on 

 which they graze at the side of the highway, the rule is dif- 

 ferent, as has already been stated.^^^ 



The subject of summary proceedings is discussed in § 80, 

 infra. 



79. Distress At the common law if an animal trespasses 



on a man's land, not being at the time under anyone's charge, 



-'" Levy V. N. Y. City, i Sandf. (N. Y.) 465. See Cochrane v. Frost- 

 burg, 81 Md. 54, where it is held that it is the duty of the municipal au- 

 thorities to abate the nuisance of animals running at large on the streets 

 so as to be a source of discomfort and danger to the inhabitants. 



"'° Stackpole v. Healy, 16 Mass. 33. 



'"' Beardsley, C. J., in Tonawanda R. Co. v. Hunger, 5 Denio (N. Y.) 

 255. And see the opinion in Holladay v. Marsh, 3 Wend. (N. Y.) 142. 



'"'Griffin v. Martin, 7 Barb. (N. Y.) 297; Hardenburgh v. Lockwood, 

 25 id. g — cited in § 77, supra. 



"' See § 77, supra. 



