The Road and the Roadside

by Burton Willis Potter

New roads are not often required now to reach and develop new tracts of land, except in large towns and cities; but they are frequently needed to shorten distances and to improve grades. Consequently the laws relative to the laying out, maintenance, and use of highways are of personal interest to every citizen, and many are also interested in the laws relating to private ways.

The public have a right to lay out ways for purposes of business, amusement, or recreation, as to markets, to public parks or commons, to places of historic interest or beautiful natural scenery.[1 ] And such ways may be established by prescription, by dedication, or by the acts of the proper public authorities. Twenty years' uninterrupted use by the public will make a prescriptive highway. Many of the old roads in our towns and cities have become public thoroughfares by prescriptive use, which began in colonial days, and perhaps then followed Indian trails, or were first used as bridle-paths.

When the owner in fee of land gives to the public a right of passage and repassage over it, and his gift is accepted by the public, the land thus travelled over becomes a way by dedication. The dedication may be made by the writing, the declaration, or by the acts of the owner. It must, however, clearly appear that he intended and has made the dedication; and when it has been accepted by the public it is irrevocable. Formerly it could be accepted by the public by use, or by some act or circumstance showing the town's assent and acquiescence in such dedication; but now no city or town is chargeable for such dedicated way until it has been laid out and established in the manner provided by the statutes.[2 ] It was formerly thought that this act applied to prescriptive ways as well as to dedicated ways; but it is now settled that it applies only to ways by dedication, and ways by prescription are not affected by it.[3 ]

The proper town or city authorities have jurisdiction to lay out or alter ways within the limits of their respective cities or towns, and to order specific repairs thereon. The county commissioners have also jurisdiction to lay out public ways, the termini of which are exclusively within the same town; and they are also clothed with authority to lay them out from town to town. Hence roads may be either town ways or public highways. When the proceedings for their location originate with the town or city officials, they are town ways; and when the proceedings originate with the county commissioners, they are public highways.[4 ] Suppose a new road is wanted, or an alteration in an old one is desired, within the limits of a town, a petition therefor may be presented either to the town authorities or to the county commissioners. If the proposed road is not situated entirely within the limits of one town or city, then the commissioners alone have jurisdiction in the premises. When the selectmen or road commissioners of a town decide to lay out a new road, or to alter an old one, their doings must be reported and allowed at some public meeting of the inhabitants regularly warned and notified therefor; but while the inhabitants are vested with the right of approval, they have no right to vote that the selectmen or road commissioners shall lay out a particular way, as it is the intention of the statute that these officials shall exercise their own discretion upon the subject.[5 ] If the town authorities unreasonably refuse or neglect to lay out a way, or if the town unreasonably refuses or delays to approve and allow such way as laid out or altered by its officials, then the parties aggrieved thereby may, at any time within one year, apply to the county commissioners, who have authority to cause such way to be laid out or altered. But when a petition for a public way is presented in the first instance to the county commissioners, or when the matter is brought before them by way of appeal, their decision on the question of the public necessity and convenience of such way is final, and from it there is no appeal. If damage is sustained by any person in his property by the laying out, alteration, or discontinuance of a public way, he is entitled to receive just and adequate damages therefor, to be assessed, in the first place, by the town or city authorities or by the county commissioners, and, finally, by a jury, in case one is demanded by him. He is entitled to a reasonable time to take off any timber, wood or trees, which may be upon the land to be taken; but if he does not remove the same within the time allowed, he is deemed to have relinquished his right thereto. In estimating the damage to the land-owner caused by the laying out or the alteration of a public way over his land, neither the city nor town authorities nor a jury are confined to the value of the land taken. He is also entitled to the amount of the damage done to his remaining land by such laying out or alteration.[6 ] But in such estimation of damages any direct or peculiar benefit or increase of value accruing to his adjoining land is to be allowed as a betterment, by way of set-off; but not any general benefit or increase of value received by him in common with other land in the neighborhood.[7 ]

The cost of making and altering ways, including damages caused thereby, is to be paid by the city or town wherein the same are located, provided the proceedings originate with the town or city authorities; but when the proceedings originate with the county commissioners, they divide the cost between the towns and the county in such manner as they think to be just and reasonable.[8 ]

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CHAPTER VI.

LAW AS TO REPAIRS.

After highways, town-ways, streets, causeways, and bridges have been established, they are to be kept in such repair as to be reasonably safe and convenient for travellers at all seasons of the year at the expense of the town or city in which they are situated.

It is the duty of each town to grant and vote such sums of money as are necessary for repairing the public ways within its borders; and if it fails to do so, the highway surveyors, in their respective districts, may employ persons, as directed in the statutes, to repair the roads, and the persons so employed may collect pay for their labor of the town. In order to make such repairs, city and town authorities may select and lay out land within their respective limits as gravel and clay pits from which may be taken earth and gravel necessary for the construction and repairs of streets and ways.[9 ] And they may turn the surface drainage of the roads upon the land of the adjoining owners without liability.[10 ] But no highway surveyor has a right, without the written approbation of the selectmen, to cause a watercourse, occasioned by the wash of the road, to be so conveyed by the roadside as to incommode a house, a store, shop, or other building, or to obstruct a person in the prosecution of his business.[11 ] Properly authorized city or town officers may trim or lop off trees and bushes standing in the public ways, or cut down and remove such trees; and may cause to be dug up and removed whatever obstructs such ways, or endangers, hinders, or incommodes persons travelling therein.[12 ] Even the boundaries of public ways are so well guarded that when they are ascertainable no length of time less than forty years justifies the continuance of a fence or building within their limits; but the same may, upon the presentment of a grand jury, be removed as a nuisance.[13 ]