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 ]
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.
The general doctrine as to the use of property is here, as elsewhere, Sic utere tuo ut alienum non lædas,—"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 ]
CHAPTER XV.
PRIVATE WAYS.
A private way is the right of passage over another man's land. It may be established and discontinued in the same manner as a public way, and it may also arise from necessity. A way of necessity is where a person sells land to another which is wholly surrounded by his own land, or which cannot be reached from the public highways or from the land of the purchaser. In such case the purchaser is unable to reach his land at all unless he can go over some of the surrounding estates; and inasmuch as he cannot go over the premises of those who are strangers to him, in law, and inasmuch as public policy and simple justice call for a passage-way to his land, for his use in the care and cultivation of it, the law gives him a way of necessity over his grantor's land, which runs with his land, as appurtenant thereto, so long as the necessity exists, even if nothing is said in the deed about a right of way, because it is presumed that when the grantor sells the land he intends to convey with it a right of way, without which it could not be used and enjoyed; but when the necessity ceases, the right ceases also.[86 ] In the absence of contract, it belongs to the owner of a private way to keep it in repair,[87 ] and for this purpose he may enter upon the way and do whatever is necessary to make it safe and convenient; but if in so doing he removes soil and stones which are not needed on the way, such surplus material belongs to the owner of the land over which the way passes.[88 ] If a defined and designated way becomes impassable for want of repair or by natural causes, the owner of the way has not the right of a traveller on a public road to go outside the limits of the way in order to pass from one point to another.[89 ] But if the owner of the land obstructs the way, a person entitled to use it may, without liability, enter upon and go over adjoining land of the same owner, provided he does no unnecessary damage.[90 ] The reason for this distinction in the law between a public and a private way is that in the case of a private way the owner of the way, who alone has the right to its use, is bound to keep it in repair, whereas in the case of a public way the traveller is under no obligation to keep it in passable condition. A private way once established cannot be re-located except with the consent of both the owner of the land and of the way; but if both are agreed, the old way may be discontinued and re-located in another place.[91 ] The owner of the soil of a private way may, the same as the owner of the fee in a highway, make any and all uses thereof to which the land can be applied.[92 ] In the absence of agreement to the contrary, he may lawfully and without liability cover such way with a building or other structure, if he leaves a space so wide, high, and light that the way is substantially as convenient as before for the purpose for which it was established.[93 ] And so, in the absence of agreement, he may maintain such fences across the way as are necessary to enable him to use his land for agricultural purposes, but he must provide suitable bars or gates for the use and convenience of the owner of the way. He is not required to leave it as an open way, nor to provide swing gates, if a reasonably convenient mode of passage is furnished; and if the owner of the way or his agents leave the bars or gates open, and in consequence thereof damage is done by animals, he is liable to respond in damages.[94 ] "The law of the road" applies as well to private as to public ways, as the object of the law is to prescribe a rule of conduct for the convenience and safety of those who may have occasion to travel, and actually do travel, with carriages on a place adapted to and fitted and actually used for that purpose.[95 ] The description of a way as a "bridle-road" does not confine the right of way to a particular class of animals or special mode of use, but it may be used for any of the ordinary purposes of a private road.[96 ]
CHAPTER XVI.
DON'T.