Appeal from the Circuit Court for Washington County (McLAUGHLIN, J.).
The cause was argued before Brune, C.J., and Hammond, Horney, Marbury and Sybert, JJ.
SYBERT, J., delivered the opinion of the Court.
The appellants, Austin S. Stottlemyer and Fannie M. Stottlemyer, his wife, appeal from a decree of the Circuit Court for Washington County which enjoined them rom driving their cattle upon the public road leading through an unincorporated village known as Antietam Furnace. The bill of complaint filed by the appellees, who were residents of Antietam Furnace and landowners therein, alleged that the driving of cattle through the village constituted a nuisance due to (1) impediment of traffic, (2) the dropping of manure, and (3) damage to their
properties. The appellants answered, denying the material allegations of the bill. The Chancellor, after hearing evidence and viewing the area in question, found no damage to the properties of the appellees sufficient to justify injunctive relief, but granted the injunction on the basis that the driving of the cattle through the village constituted a nuisance since it caused congestion of traffic and resulted in considerable manure on the road. The Chancellor also found that there was a lane on the appellants' property over which they could drive their cattle to pasture, rather than utilizing the road going through the village. This, however, was disputed by the appellants.
Antietam Furnace consists of approximately 14 houses and has a population, it was agreed, of about 51 persons. The right of way of the road through the village is 30 feet wide, with a paved surface of 12 feet and gravel shoulders of 2 feet on each side. The appellants, as well as their predecessor in title, Mrs. Stottlemyer's father, have driven cattle through the village for at least 35 years. It has been the appellants' custom to drive their herd, usually consisting of from 40 to 50 head, through Antietam Furnace from their cattle barn on the north edge of the village to their pasture fields on the south edge at about 8 A.M., and to retrace the course at about 5:00 P.M. The total distance the cattle are driven is about 1200 feet, and the trip takes, according to the witnesses, from 3 I/2 to 5 minutes.
The Chancellor found that when the cattle were being driven through the village, there was "some congestion of other traffic", but that it was not "too substantial". The testimony showed that on some occasions up to 4 or 5 cars were delayed by the cows for very brief periods of time. In prior years school buses sometimes encountered the cattle, but were not delayed in meeting their schedules. There was testimony that during the present school year, the buses have not met the cows. The real complaint of the appellees concerned the droppings left on the road by the cattle. The appellees offered testimony that the manure was tracked into school buses and into a store fronting on the road which belonged to one of the appellees; that the manure created an ill-smelling odor; and that the privilege of walking along the road was "just about taken away" by the manure. However, the appellants elicited testimony from two county
Health Department sanitarians that the manure was not dangerous to health, and from other witnesses statements that there was no undue amount of manure or unpleasant odors, and that what was present did not interfere with their use of the road. The appellees introduced several photographs of the herd on the road, but not much manure is discernible in them.
The authorities are in accord that the driving of cattle to pasture along a public road is not in itself unlawful and does not constitute a nuisance per se. "Under this right [to use public roads], a person may use the highway for the purpose of leading or driving cattle". 40 C.J.S., Highways, sec. 233, p. 245. "A drover with cattle or horses, mules, sheep, or any other domestic animals has a right upon the public highway". Anno., 11 A.L.R. 1405. It is said in Restatement, Torts, sec. 505, comment a, that "as part of his privilege to use a public highway * * * one in possession of livestock is privileged to drive them upon it for any legitimate purpose such as bringing them to market or taking them to pasture". The right of a possessor of livestock to drive his animals along public highways was recognized and protected by the courts at common law. See Mills v. Stark, 4 N.H., 512, 514 (1829), and the early English cases cited therein; Jackson v. Rutland & Burlington Railroad Co., 25 Vt. 150(1853); Amstein v. Gardner, 132 Ass. 28, 29-30 (1882); Wood v. Snider, 79 N.E. 858(N.Y. 1907); Ingham, The Law of Animals, sec. 75, p. 279; 2 Harper and James, The Law of Torts, sec. 14.9 p. 824; 2 Cooley, Torts (4th ed.) sec. 265.
The age of the automobile has not eliminated the ancient right. "The plaintiff had as good a right to drive his cows along the highways as the defendant had to drive his automobile over it", Bombard v. Newton, 111 Atl, 510(Vt. 1920). "A farmer has the same right to the use of the highways of this State * * * as any other citizen, and this includes the right * * * to herd his livestock from one place to another", Draffin v. Massey, 92 S.E. 2d 38(Ga. 1956). "The owners of cattle have a fundamental and historic right to the use of the highways" in herding cattle, Burback ...