PURPOSES FOR WHICH HIGHWAYS MAY BE USED.
As before intimated, the public ways are mainly for the use of
travellers; but in the progress of civilization it has become
convenient and necessary to use them for other purposes of a public
nature. It is the great merit of the common law, that while its
fundamental principles remain fixed from generation to generation,
yet they are generally so comprehensive and so well adapted to new
institutions and conditions of society, new modes of commerce, new
usages and practices, that they are capable of application to every
phase of society and business life. Time and necessity, as well as
locality, are important elements in determining the character of any
particular use of a public way. Many public ways are now used for
gas, water-pipes, and sewers, because the public health and
convenience are subserved by such use.[57] They are also used for the
transmission of intelligence by electricity, and the post-boy and
the mail-coach are disappearing.
[57] 35 N.H. 257.
The horse-railroad was deemed a new invention; but it was held that
a portion of the road might well be set aside for it, although the
rights of other travellers to some extent were limited by the
privileges necessary for its use.[58]
[58] 136 Mass. 75.
And now motor cars and elevated railroads are making their
appearance in the centres of civilized life, and the bicycle and
tricycle are familiar objects on all the great thoroughfares. Should
human ingenuity discover any new modes of conveying persons and
property over the public ways, or of transmitting intelligence along
the same, which should prove convenient to the everyday life of
humanity, no doubt the highway law will be found applicable to all
the needs of advancing civilization. The underlying principle of the
law is that every person may use the highway to his own best
advantage, but with a just regard to the like rights of others. The
law does not specify what kind of animals or vehicles are to be
allowed upon the road, but leaves every case to be decided as it
shall arise, in view of the customs and necessities of the people
from time to time. All persons may lawfully travel upon the public
ways with any animal or vehicle which is suitable for a way prepared
and intended to afford the usual and reasonable accommodations
needful to the requirements of a people in their present state of
civilization; but if any person undertakes to use or travel upon the
highway in an unusual or extraordinary manner, or with animals,
vehicles, or freight not suitable or adapted to a way opened and
prepared for the public use, in the common intercourse of society,
and in the transaction of usual and ordinary business, he then takes
every possible risk of loss and damage upon himself.[59]
[59] 14 Gray, 242.
If a party leads a bull or other animal through a public way without
properly guarding and restraining the same, and for want of such
care and restraint people rightfully on the way and using due care
are injured, the owner of the animal is responsible, because under
such circumstances he is bound to use the utmost care and diligence,
especially in villages and cities, to avoid injuries to people on
the road.[60] So, if a man goes upon the highway with a vehicle of
such peculiar and unusual construction, or which is operated in such
a manner, as to frighten horses and to create noise and confusion on
the road, he is guilty of an indictable offence and answerable in
damages besides. An ycleped velocipede in the road has been held in
Canada to be a nuisance, and its owner was indicted and found guilty
of a criminal offence.[61] In England a man who had taken a traction
steam-engine upon the road was held liable to a party who had
suffered damages by reason of his horses being frightened by it.[62]
It has been held to be a nuisance at common law to carry an
unreasonable weight on a highway with an unusual number of
horses.[63] And so it is a nuisance for a large number of persons to
assemble on or near a highway for the purpose of shouting and making
a noise and disturbance; and likewise it is a nuisance for one to
make a large collection of tubs in the road, or to blockade the way
by a large number of logs, cattle, or wagons; for, as Lord
Ellenborough once said, the king's highway is not to be used as a
stable or lumber yard.
[60] 106 Mass. 281; 126 Mass. 506.
[61] 30 Q.B. Ont. 41.
[62] 2 F. & F. 229.
[63] 3 Salk. 183.
Towns and cities have authority to make such by-laws regulating the
use and management of the public ways within their respective
limits, not repugnant to law, as they shall judge to be most
conducive to their welfare.[64] They may make such by-laws to secure,
among other things, the removal of snow and ice from sidewalks by
the owners of adjoining estates; to prevent the pasturing of cattle
or other animals in the highways; to regulate the driving of sheep,
swine, and neat cattle over the public ways; to regulate the
transportation of the offal of slaughtered cattle, sheep, hogs, and
other animals along the roads; to prohibit fast driving or riding on
the highways; to regulate travel over bridges; to regulate the
passage of carriages or other vehicles, and sleds used for coasting,
over the public ways; to regulate and control itinerant musicians
who frequent the streets and public places; and to regulate the
moving of buildings in the highways. Many people are inclined to
make the highway the receptacle for the surplus stones and rubbish
around their premises, and to use the wayside for a lumber and wood
yard; and some farmers are in the habit of supplying their hog-pens
and barn cellars with loam and soil dug out of the highway.
[64] Pub. St. c. 27, Sec. 15, and c. 53; 97 Mass. 221.
Again, some highway surveyors have very little taste for rural
beauty, and show very poor judgment, and perhaps now and then a
little spite, in ploughing up the green grass by the roadside and
sometimes in front of houses. These evils can be remedied by every
town which will pass suitable by-laws upon the subject and see that
they are enforced. Such by-laws might provide that no one should be
allowed to deposit within the limits of the highway any stones,
brush, wood, rubbish, or other substance inconvenient to public
travel; that no one should be permitted to dig up and carry away any
loam or soil within the limits of the highway; and that no highway
surveyor should be allowed to dig or plough up the greensward in
front of any dwelling-house, or other building used in connection
therewith, without the written direction or consent of the
selectmen.