USE OF HIGHWAYS BY ADJOINING OWNERS.
The owner of land adjoining a highway ordinarily owns to the middle of
the road; and while he has the same rights as the public therein, he
also has, in addition thereto, certain other rights incident to the
ownership of the land over which the road passes. When land is taken
for a highway, it is taken for all the present and prospective purposes
for which a public thoroughfare may properly be used, and the damages
to the owner of the land are estimated with reference to such use; but
the land can be used for no other purpose, and when the servitude
ceases the land reverts to him free from encumbrance. During the
continuance of the servitude he is entitled to use the land, subject to
the easement, for any and all purposes not incompatible with the public
enjoyment. If the legislature authorizes the addition of any new
servitude, essentially distinct from the ordinary use of a highway,
like an elevated railroad, then the land-owner is entitled to
additional compensation; for it cannot be deemed, in law, to have been
within the contemplation of the parties, at the time of the laying out
of the road, that it might be used for such new and additional
purposes. It has been held in New York, Illinois, and some of the
United States circuit courts, that the use of a highway for a telegraph
line will entitle such owner to additional compensation; but in the
recent case of Pierce _v._ Drew[65] the majority of our Supreme Court
decided that the erection of a telegraph line is not a new servitude
for which the land-owner is entitled to additional compensation.
[65] 136 Mass. 75.
A minority of the court, in an able argument, maintained that the
erection of telegraph and telephone posts and wires along the roads,
fitted with cross-beams adapted for layer after layer of almost
countless wires, which necessitate to some extent the destruction of
trees along the highways or streets, the occupation of the ground,
the filling of the air, the interference with access to or escape
from buildings, the increased difficulty of putting out fires, the
obstruction of the view, the presentation of unsightly objects to
the eye, and the creation of unpleasant noises in the wind, is an
actual injury to abutting land along the line, and constitutes a new
and increased servitude, for which the land-owner is entitled to a
distinct compensation. After the rendering of the majority decision,
the legislature very promptly passed a law allowing an owner of land
abutting upon a highway along which telegraph or telephone, electric
light or electric power, lines shall be constructed, to recover
damages to the full extent of the injuries to his property, provided
he applies, within three months after such construction, to the
mayor and aldermen or selectmen to assess and appraise his
damage.[66]
[66] St. 1884, c. 306.
The public has a right to occupy the highway for travel and other
legitimate purposes, and to use the soil, the growing timber, and
other materials found within the space of the road, in a reasonable
manner, for the purpose of making and repairing the road and the
bridges thereon.[67] But the public cannot go upon the land of an
adjoining owner without his consent, to remove stones or earth, to
repair a bridge or the highway; and if in consequence of such
removal the land is injured, by floods or otherwise, he can recover
damages therefor.[68] He is not obliged to build or maintain a road
fence, except to keep his own animals at home, but if he does build
a fence he must set it entirely on his own land; and likewise, if a
town constructs an embankment to support a road or bridge, it must
keep entirely within the limits of the highway, for if any part of
the embankment is built on his land he can collect damages of the
town.[69] He may carry water-pipes underground through the highway,
or turn a watercourse across the same below the surface, provided he
does not deprive the public of their rights in the way.[70] From the
time of Edward IV. it has been the settled law that the owner of the
soil in the highway is entitled to all the profits of the freehold,
the grass and trees upon it and the mines under it. He can lawfully
claim all the products of the soil and all the fruit and nuts upon
the trees. He may maintain trespass for any injury to the soil or to
the growing trees thereon, which is not incidental to the ordinary
and legitimate uses of the road by the public. His land in the
highway may be recovered in ejectment just the same as any of his
other land. No one has any more right to graze his highway land than
his tillage land.[71] He may cut the hay on the roadside, gather the
fruit and crops thereon, and graze his own animals there; and the
by-laws of the cities and towns preventing the pasturing of cattle
and other animals in the highway are not to affect his right to the
use of land within the limits of the road adjoining his own
premises.[72]
[67] 15 Johns, 447.
[68] 107 Mass. 414.
[69] 4 Gray, 215; 136 Mass. 10.
[70] 6 Mass. 454.
[71] 16 Mass. 33; 8 Allen, 473.
[72] Pub. St. c. 53, Sec. 10.
It is not one of the legitimate uses of the highway for a traveller
or a loafer to stop in front of your house to abuse you with
blackguardism, or to play a tune or sing a song which is
objectionable to you; and if you request him to pass on and he
refuses to go, you may treat him as a trespasser and make him pay
damages and costs, if he is financially responsible.[73] And
likewise, if any person does anything on the highway in front of
your premises to disturb the peace, to draw a crowd together, or to
obstruct the way, he is answerable in damages to you and liable to
an indictment by the grand jury.[74]
[73] 38 Me. 195.
[74] 24 Pick. 187.
Although the owner of the fee in a highway has many rights in the
way not common to the public, yet he must exercise those rights with
due regard to the public safety and convenience. Perhaps, in the
absence of objections on the part of the highway surveyor, or of
prohibitory by-laws on the part of the town, he has a right to take
soil or other material from the roadside for his own private use,
but he certainly has no right to injure the road by his excavations,
or to endanger the lives of travellers by leaving unsafe pits in the
wayside. He can load and unload his vehicles in the highway, in
connection with his business on the adjoining land, but it must be
done in such a manner as not unreasonably to interfere with or
incommode the travelling public. When a man finds it necessary to
crowd his teams and wagons into the street, and thereby blockade the
highway for hours at a time, he ought either to enlarge his premises
or remove his business to some more convenient spot. He has a right
to occupy the roadside with his vehicles, loaded or unloaded, to a
reasonable extent; but when he fills up the road with logs and wood,
tubs and barrels, wagons and sleighs, pig-pens and agricultural
machinery, or deposits therein stones and rubbish, he is not using
the highway properly, but is abusing it shamefully, and is
responsible in damages to any one who is injured in person or
property through his negligence, and, moreover, is liable to
indictment for illegally obstructing the roadway.[75] As before said,
he has a perfect right to pasture the roadside with his animals; but
if he turns them loose in the road, and they there injure the person
or property of any one legally travelling therein, he is answerable
in damages to the full extent of the injuries, whether he knows they
have any vicious habits or not.[76] If his cow, bull, or horse, thus
loose in the highway, gore or kick the horse of some traveller, he
is liable for all damages;[77] and in one instance a peaceable and
well-behaved hog in the road cost her owner a large sum of money,
because the horse of a traveller, being frightened at her looks, ran
away, smashed his carriage, and threw him out.[78]
[75] 1 Cush. 443; 13 Met. 115; 107 Mass. 264; 14 Gray, 75;
Pub. St. c. 112, Sec. 17.
[76] 4 Allen, 444.
[77] 10 Cox, 102.
[78] 25 Me. 538.
As an offset to his advantages as adjoining owner there are a few
disadvantages. Highways are set apart, among other things, that
cattle and sheep may be driven thereon; and as, from the nature of
such animals, it is impossible even with care to keep them upon the
highways unless the adjoining land is properly fenced, it follows
that when they are driven along the road with due care, and then
escape upon adjoining land and do damage their owner is not liable
therefor, if he makes reasonable efforts to remove them as speedily
as possible.[79] Likewise, if a traveller bent upon some errand of
mercy or business finds the highway impassable by reason of some
wash-out, snowdrift, or other defect, he may go round upon adjoining
land, without liability, so far as necessary to bring him to the
road again, beyond the defect.[80] If a watercourse on adjoining land
is allowed by the land-owner to become so obstructed by ice and
snow, or other cause, that the water is set back, and overflows or
obstructs the road, the highway surveyor may, without liability,
enter upon adjoining land and remove the nuisance, if he acts with
due regard to the safety and protection of the land from needless
injury.[81]
[79] 114 Mass. 466.
[80] 7 Cush. 408.
[81] 134 Mass. 522.
A town or city has a right, in repairing a highway, to so raise the
grade or so construct the water-bars within its limits, as to cause
surface water to flow in large quantities upon adjoining land, to
the injury of the owner thereof; but, on the other hand, the
land-owner has a right to cause, if he can, the surface water on his
land to flow off upon the highway, and he may lawfully do anything
he can, on his own land, to prevent surface water from coming
thereon from the highway, and may even stop up the mouth of a
culvert built by a town across the way for the purpose of conducting
such surface water upon his land, providing he can do it without
exceeding the limits of his own land.[82]
[82] 13 Allen, 211, 291; 136 Mass. 119.
When the owner of land is constructing or repairing a building
adjoining the highway, it is his duty to provide sufficient
safeguards to warn and protect passing travellers against any danger
arising therefrom; and if he neglects to do so, and a traveller is
injured by a falling brick, stick of timber, or otherwise, he is
responsible.[83]
[83] 123 Mass. 26.
If the adjoining owner of a building suffers snow and ice to
accumulate on the roof, and allows it to remain there for an unusual
and unreasonable time, he is liable, if it slides off and injures a
passing traveller.[84] And, generally, the adjoining owner is bound
to use ordinary care in maintaining his own premises in such a
condition that persons lawfully using the highway may do so with
safety.
[84] 101 Mass. 251; 106 Mass. 194.
The general doctrine as to the use of property is here, as elsewhere,
_Sic utere tuo ut alienum non laedas_,--"So use your own property as not
to injure the rights of another." If you make an excavation on your
land so near to a highway that travellers are liable accidentally to
fall therein, you had better surround it with a fence or other
safeguard sufficient to protect reasonably the safety of travellers. If
you have any passage-ways, vaults, coal-holes, flap-doors, or traps of
any kind on your premises, which are dangerous for children or unwary
adults, you had better abolish them, or at any rate take reasonable
precaution to cover or guard them in such manner as ordinary prudence
dictates, and especially if they are near the highway; for if you do
not you may, some time when not convenient for you, be called upon to
pay a large claim for damages or to defend yourself against an
indictment. But if you have so covered and guarded them, and by the act
of a trespasser, or in some other way without fault on your part, the
cover, fence, or guard is removed, you are not liable until you have
had actual or constructive notice of the fact, and have had reasonable
opportunity to put it right.[85]
[85] 4 Carr. & Payne, 262, 337; 51 N.Y. 229; 19 Conn. 507.