CHAPTER XIII.

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.

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