On the other hand, where the accident arises from a hidden and internal defect, which careful and thorough examination would not disclose, and which could not be guarded against by the exercise of sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that cla.s.s of injuries for which the law can afford no redress in the form of a pecuniary recompense.

If a pa.s.senger, in peril arising from an accident for which the proprietors are responsible, is in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution, and he leaps therefrom and breaks a limb, the proprietors are answerable to him in damages, though he might safely have retained his seat.[52]

[52] 9 Met. 1.

When the proprietors of stages or street-car coaches, which are already full and overloaded, stop their coaches, whether at the signal or not of would-be pa.s.sengers, and open the doors for their entrance, they must be considered as inviting them to ride, and thereby a.s.suring them that their pa.s.sage will be a safe one, at least so far as dependent upon the exercise of reasonable and ordinary care, diligence, and skill, on their part, in driving and managing their horses and coaches; and, in fact, they are rather to be held responsible for such increased watchfulness and solicitous care, skill, and attention, as the crowded condition of the vehicle requires. If, under such circ.u.mstances, a pa.s.senger is thrown out of or off the coach by its violent jerk at starting or stopping, or in any other way through the negligence of the proprietors or their agents, he may hold them liable for his injuries.[53] A pa.s.senger must pay his fare in advance, if demanded, otherwise he may have to pay a fine for evading fare; and if he is riding free, the proprietors are not responsible, except for gross negligence; and he must also properly and securely pack his baggage, if he expects to recover damages in case of loss. A mail-coach is protected by act of Congress from obstructions, but is subject in all other respects to "the law of the road."[54]

[53] 103 Ma.s.s. 391.

[54] 1 Watts, Pa. 360.

If the proprietors of coaches used for the common carriage of persons are guilty of gross carelessness or neglect in the conduct and management of the same while in such use, they are liable to a fine not exceeding five thousand dollars, or to imprisonment not exceeding three years.[55] And if a driver of a stage-coach or other vehicle for the conveyance of pa.s.sengers for hire, when a pa.s.senger is within or upon such coach or vehicle, leaves the horses thereof without some suitable person to take the charge and guidance of them, or without fastening them in a safe and prudent manner, he may be imprisoned two months or fined fifty dollars.[56]

[55] Pub. St. c. 202, -- 34.

[56] Pub. St. c. 202, -- 35.

CHAPTER XIII.

PURPOSES FOR WHICH HIGHWAYS MAY BE USED.

As before intimated, the public ways are mainly for the use of travellers; but in the progress of civilization it has become convenient and necessary to use them for other purposes of a public nature. It is the great merit of the common law, that while its fundamental principles remain fixed from generation to generation, yet they are generally so comprehensive and so well adapted to new inst.i.tutions and conditions of society, new modes of commerce, new usages and practices, that they are capable of application to every phase of society and business life. Time and necessity, as well as locality, are important elements in determining the character of any particular use of a public way. Many public ways are now used for gas, water-pipes, and sewers, because the public health and convenience are subserved by such use.[57] They are also used for the transmission of intelligence by electricity, and the post-boy and the mail-coach are disappearing.

[57] 35 N.H. 257.

The horse-railroad was deemed a new invention; but it was held that a portion of the road might well be set aside for it, although the rights of other travellers to some extent were limited by the privileges necessary for its use.[58]

[58] 136 Ma.s.s. 75.

And now motor cars and elevated railroads are making their appearance in the centres of civilized life, and the bicycle and tricycle are familiar objects on all the great thoroughfares. Should human ingenuity discover any new modes of conveying persons and property over the public ways, or of transmitting intelligence along the same, which should prove convenient to the everyday life of humanity, no doubt the highway law will be found applicable to all the needs of advancing civilization. The underlying principle of the law is that every person may use the highway to his own best advantage, but with a just regard to the like rights of others. The law does not specify what kind of animals or vehicles are to be allowed upon the road, but leaves every case to be decided as it shall arise, in view of the customs and necessities of the people from time to time. All persons may lawfully travel upon the public ways with any animal or vehicle which is suitable for a way prepared and intended to afford the usual and reasonable accommodations needful to the requirements of a people in their present state of civilization; but if any person undertakes to use or travel upon the highway in an unusual or extraordinary manner, or with animals, vehicles, or freight not suitable or adapted to a way opened and prepared for the public use, in the common intercourse of society, and in the transaction of usual and ordinary business, he then takes every possible risk of loss and damage upon himself.[59]

[59] 14 Gray, 242.

If a party leads a bull or other animal through a public way without properly guarding and restraining the same, and for want of such care and restraint people rightfully on the way and using due care are injured, the owner of the animal is responsible, because under such circ.u.mstances he is bound to use the utmost care and diligence, especially in villages and cities, to avoid injuries to people on the road.[60] So, if a man goes upon the highway with a vehicle of such peculiar and unusual construction, or which is operated in such a manner, as to frighten horses and to create noise and confusion on the road, he is guilty of an indictable offence and answerable in damages besides. An ycleped velocipede in the road has been held in Canada to be a nuisance, and its owner was indicted and found guilty of a criminal offence.[61] In England a man who had taken a traction steam-engine upon the road was held liable to a party who had suffered damages by reason of his horses being frightened by it.[62]

It has been held to be a nuisance at common law to carry an unreasonable weight on a highway with an unusual number of horses.[63] And so it is a nuisance for a large number of persons to a.s.semble on or near a highway for the purpose of shouting and making a noise and disturbance; and likewise it is a nuisance for one to make a large collection of tubs in the road, or to blockade the way by a large number of logs, cattle, or wagons; for, as Lord Ellenborough once said, the king's highway is not to be used as a stable or lumber yard.

[60] 106 Ma.s.s. 281; 126 Ma.s.s. 506.

[61] 30 Q.B. Ont. 41.

[62] 2 F. & F. 229.

[63] 3 Salk. 183.

Towns and cities have authority to make such by-laws regulating the use and management of the public ways within their respective limits, not repugnant to law, as they shall judge to be most conducive to their welfare.[64] They may make such by-laws to secure, among other things, the removal of snow and ice from sidewalks by the owners of adjoining estates; to prevent the pasturing of cattle or other animals in the highways; to regulate the driving of sheep, swine, and neat cattle over the public ways; to regulate the transportation of the offal of slaughtered cattle, sheep, hogs, and other animals along the roads; to prohibit fast driving or riding on the highways; to regulate travel over bridges; to regulate the pa.s.sage of carriages or other vehicles, and sleds used for coasting, over the public ways; to regulate and control itinerant musicians who frequent the streets and public places; and to regulate the moving of buildings in the highways. Many people are inclined to make the highway the receptacle for the surplus stones and rubbish around their premises, and to use the wayside for a lumber and wood yard; and some farmers are in the habit of supplying their hog-pens and barn cellars with loam and soil dug out of the highway.

[64] Pub. St. c. 27, -- 15, and c. 53; 97 Ma.s.s. 221.

Again, some highway surveyors have very little taste for rural beauty, and show very poor judgment, and perhaps now and then a little spite, in ploughing up the green gra.s.s by the roadside and sometimes in front of houses. These evils can be remedied by every town which will pa.s.s suitable by-laws upon the subject and see that they are enforced. Such by-laws might provide that no one should be allowed to deposit within the limits of the highway any stones, brush, wood, rubbish, or other substance inconvenient to public travel; that no one should be permitted to dig up and carry away any loam or soil within the limits of the highway; and that no highway surveyor should be allowed to dig or plough up the greensward in front of any dwelling-house, or other building used in connection therewith, without the written direction or consent of the selectmen.

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 pa.s.ses. 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 enc.u.mbrance. During the continuance of the servitude he is ent.i.tled to use the land, subject to the eas.e.m.e.nt, 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 ent.i.tled 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 ent.i.tle 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 ent.i.tled to additional compensation.

[65] 136 Ma.s.s. 75.

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 ab.u.t.ting land along the line, and const.i.tutes a new and increased servitude, for which the land-owner is ent.i.tled to a distinct compensation. After the rendering of the majority decision, the legislature very promptly pa.s.sed a law allowing an owner of land ab.u.t.ting 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 a.s.sess and appraise his damage.[66]

[66] St. 1884, c. 306.

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 s.p.a.ce 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 ent.i.tled to all the profits of the freehold, the gra.s.s 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 trespa.s.s 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]

[67] 15 Johns, 447.

[68] 107 Ma.s.s. 414.

[69] 4 Gray, 215; 136 Ma.s.s. 10.

[70] 6 Ma.s.s. 454.

[71] 16 Ma.s.s. 33; 8 Allen, 473.

[72] Pub. St. c. 53, -- 10.

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 pa.s.s on and he refuses to go, you may treat him as a trespa.s.ser 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]

[73] 38 Me. 195.

[74] 24 Pick. 187.

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]

[75] 1 Cush. 443; 13 Met. 115; 107 Ma.s.s. 264; 14 Gray, 75; Pub. St. c. 112, -- 17.

[76] 4 Allen, 444.

[77] 10 c.o.x, 102.