It is so important that the public ways be kept free for travel, that any person may take down and remove gates, rails, bars, or fences upon or across highways, unless the same have been there placed for the purpose of preventing the spreading of a disease dangerous to the public health, or have been erected or continued by the license of the selectmen or county commissioners.[14 ] A highway surveyor acting within the scope of his authority may dig up and remove the soil within the limits of the public ways for the purpose of repairing the same, and may carry it from one part of the town to another;[15 ] and he has a right to deposit the soil thus removed on his own land, if that is the best way of clearing the road of useless material.[16 ]
Though the law is imperative that the roads must be kept in good condition, and to this end gives municipal corporations great powers, yet let no one who is not a highway surveyor or in his employ imagine that he can repair a road not on his own land with impunity; for it has been decided that if an unauthorized person digs up the soil on the roadside by another person's land for the purpose of repairing the road, he is a trespasser and liable for damages, although he does only what a highway surveyor might properly do.[17 ] It is also the duty of cities and towns to guard with sufficient and suitable railings every road which passes over a bank, bridge, or along a precipice, excavation, or deep water; and it makes no difference whether these dangerous places are within or without the limits of the road, if they are so imminent to the line of public travel as to expose travellers to unusual hazard.[18 ] But towns are not obliged to put up railings merely to prevent travellers from straying out of the highway, where there is no unsafe place immediately contiguous to the way.[19 ]
The roads are for the use of travellers, and a city or town is not bound to keep up railings strong enough for idlers to lounge against or children to play upon.[20 ]
The travelled parts of all roads ought to be wide enough to allow of the ordinary shyings and frights of horses with safety, for shying is one of the natural habits of the animal;[21 ] although it seems that switching his tail over the reins is not a natural habit of the animal, as it has been decided that if a horse throws his tail over the reins and thereby a defect in the road is run against, no damages can be recovered.[22 ]
CHAPTER VII.
GUIDE-POSTS, DRINKING-TROUGHS, AND FOUNTAINS.
The statutes undertake to provide for the erection and maintenance of guide-posts at suitable places on the public ways; but a person has to travel but little in many of the towns of the State to come to the conclusion that the law is either deficient in construction or a dead letter in execution. The law makes it incumbent upon the selectmen or road commissioners of each town to submit to the inhabitants, at every annual meeting, a report of all the places in which guide-posts are erected and maintained within the town, and of all places at which, in their opinion, they ought to be erected and maintained. For each neglect or refusal to make such report they shall severally forfeit ten dollars. After the report is made the town shall determine the several places at which guide-posts shall be erected and maintained, which shall be recorded in the town records. A town which neglects or refuses to determine such places, and to cause a record thereof to be made, shall forfeit five dollars for every month during which it neglects or refuses to do so.
At each of the places determined by the town there shall be erected, unless the town at the annual meeting agrees upon some suitable substitute therefor, a substantial post of not less than eight feet in height, near the upper end of which shall be placed a board or boards, with plain inscription thereon, directing travellers to the next town or towns and informing them of the distance thereto.
Every town which neglects or refuses to erect and maintain such guide-posts, or some suitable substitutes therefor, shall forfeit annually five dollars for every guide-post which it neglects or refuses to maintain.[23 ] These forfeitures can be recovered either by indictment or by an action of tort for the benefit of the county wherein the acts of negligence or refusal occur; and any interested or public-spirited person can make complaint of such negligence or refusal to the superior court, or to any trial justice, police, district or municipal court, having jurisdiction of the matter.[24 ]