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]

[9] Pub. St. c. 49, -- 99.

[10] 13 Gray, 601.

[11] Pub. St. c. 52, -- 12.

[12] St. 1885, c. 123.

[13] Pub. St. c. 54.

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]

[14] Pub. St. c. 54.

[15] 125 Ma.s.s. 216.

[16] 128 Ma.s.s. 546.

Though the law is imperative that the roads must be kept in good condition, and to this end gives munic.i.p.al 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 trespa.s.ser 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 pa.s.ses 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]

[17] 8 Allen, 473.

[18] 13 Allen, 429.

[19] 122 Ma.s.s. 389.

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]

[20] 3 Allen, 374; 8 Allen, 237.

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]

[21] 100 Ma.s.s. 49.

[22] 98 Ma.s.s. 578.

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 inc.u.mbent 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 subst.i.tute 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 subst.i.tutes 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 munic.i.p.al court, having jurisdiction of the matter.[24]

[23] Pub. St. c. 53, ---- 1-5.

[24] Pub. St. c. 217; 108 Ma.s.s. 140.

The selectmen may establish and maintain such drinking-troughs, wells, and fountains within the public highways, squares, and commons of their respective towns, as in their judgment the public necessity and convenience may require, and the towns may vote money to defray the expenses thereof.[25] But the vote of a town instructing the selectmen to establish a watering-trough at a particular place would be irregular and void, because towns in their corporate capacity have not been given the right by statute to construct drinking-troughs in the public highways. And towns would not be liable for the acts of the selectmen performed in pursuance of this statute, because the law makes the selectmen a board of public officers, representing the general public, and not the agents of their respective towns. However, if the inhabitants of a town should construct a drinking trough or fountain of such hideous shape, and paint it with such brilliant color, that it would frighten an ordinarily gentle and well-broken horse, by reason of which a traveller should be brought in contact with a defect in the way or on the side of the way, and thus injured, the town might be held liable to pay damages.[26]

[25] Pub. St. c. 27, -- 50.

[26] 125 Ma.s.s. 526.

It is my purpose to state what the law is, and not what it ought to be; but I will venture the suggestion that it would not be an unreasonable hardship on towns to require them to establish and maintain suitable watering-troughs at suitable places, and it would be a merciful kindness to many horses which now frequently have to travel long distances over dusty roads in summer heat without a chance to get a swallow of water from a public drinking-trough.

CHAPTER VIII.

SHADE TREES, PARKS, AND COMMONS.

The law of the Commonwealth not only requires the public ways to be kept safe and convenient, but of late years statutes have been pa.s.sed allowing owners of land, improvement societies, cities and towns, to do something to beautify the roadsides and public squares of any city or town. A city or town may grant or vote a sum not exceeding fifty cents for each of its ratable polls in the preceding year, to be expended in planting, or encouraging the planting by the owners of adjoining real estate, of shade trees upon the public squares or highways.[27] Such trees may be planted wherever it will not interfere with the public travel or with private rights, and they shall be deemed and taken to be the private property of the person so planting them or upon whose premises they stand.[28]

[27] St. 1885, c. 123.

[28] Pub. St. c. 54, -- 6.

Improvement societies, properly organized for the purpose of improving and ornamenting the streets and public squares of any city or town by planting and cultivating ornamental trees therein, may be authorized by any town to use, take care of, and control the public grounds or open s.p.a.ces in any of its public ways, not needed for public travel. They may grade, drain, curb, set out shade or ornamental trees, lay out flower plots, and otherwise improve the same; and may protect their work by suitable fences or railings, subject to such directions as may be given by the selectmen or road commissioners. And any person who wantonly, maliciously, or mischievously drives cattle, horses, or other animals, or drives teams, carriages, or other vehicles, on or across such grounds or open s.p.a.ces, or removes or destroys any fence or railing on the same, or plays ball or other games thereon, or otherwise interferes with or damages the work of such corporation, is subject to a fine not exceeding twenty dollars for each offence, for the benefit of the society.[29]

[29] St. 1885, c. 157.

It is also a legal offence for any one wantonly to injure or deface a shade tree, shrub, rose, or other plant or fixture of ornament or utility in a street, road, square, court, park, or public garden, or carelessly to suffer a horse or other beast driven by or for him, or a beast belonging to him and lawfully on the highway, to break down or injure a tree, not his own, standing for use or ornament on said highway.[30] And no one, even if he be the owner of the land, has the right to cut down or remove an ornamental or shade tree standing in a public way, without first giving notice of his intention to the munic.i.p.al authorities, who are ent.i.tled to ten days to decide whether the tree can be removed or not. And whoever cuts down or removes or injures such tree in violation of the law shall forfeit not less than five nor more than one hundred dollars for the benefit of the city or town wherein the same stands.[31]

[30] Pub. St. c. 54, ---- 7, 8.

[31] Pub. St. c. 54, ---- 10, 11.

CHAPTER IX.

PUBLIC USE OF HIGHWAYS.