The Road and the Roadside

by Burton Willis Potter

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CHAPTER XIV.

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.

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 ]

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 ]

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 ]

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 ]

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 ]

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 ]