Kt OJontFll ICam Bd}aa\ Slihrarg Cornell University Library KF 5525.A75 1868 A treatise on the law of highways / 3 1924 019 962 277 The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924019962277 TREATISE LAW OF HIGHWAYS. JOSEPH K ANGELL and THOMAS DUEFEE. SECOND EDITION, WITH NOTES AND KEPERENCES TO THE LATER CASES. By GEORGE F. CHOATE. "VTl ki. '. > -J ! >^-/ BOSTON: LITTLE, BROWN, AND- COMPANY. 1868. Entered according to Act of Congress, in the year 1857, by LITTLE, BROWN, AND COMPANY, in the Clerk's Office of the District Court of the District of Massachusetts. Entered according to Act of Congress, in the year 1868, by LITTLE, BEOWN, AND COMPANT, in the Clerk's Office of the District Court of the District of Massachusetts. University Press ; Welch, Bigelow, & Co., Cambridge. EDITOE'S PEEFACE. In preparing a second edition of this treatise, it has been the purpose to follow the plan of the first, and, avoiding the discussion of questions under the local statutes, to con- sider only those of general application. The consideration of the great labor, with so small hope of success, of an at- tempt to classify and arrange the multitude of decisions upon questions arising under the various statutes of the different States, would have prevented an undertaking which in its best execution could not be of very general profit or interest, even if I had been presumptuous enough to suppose that I could improve upon the original plan as designed by so eminent and successful a writer as Mr. Angell. In the process of revision, additions and al- terations have been made in the body of the work where the course of decisions seemed to require, and notes and references given to the cases determined since the first edition, so as to give as concisely as I might the existing state of the law upon the subject, as developed by the decis- ions of later date, and its present application. The Table of Cases has, of course, been enlarged by the addition of the cases since the former edition, and the Index increased by more full and copious references to the topics treated of in the book, so as to give, it is hoped, greater facility of reference to any subject sought. Salem, June, 1868. PREFACE I OWE it to the Public to state by what chance it hap- pened that the completion of the following work, com^ menced and partly written by one of the most celebrated of American law-writers, fell into the hands of one so un- known to the Profession as myself. For some time pre- vious to the decease of the late Joseph K. Angell, this book had been advertised as in preparation ; but the more pressing demand for new editions of his former works con- tinually retarded its appearance. In order that its publica- tion might not be unreasonably delayed, he procured my assistance ; and, at the time of his death, had already ob- tained from me the chapter entitled " Highways by Prescription and Dedication," and the chapter entitled " Niiisances and their Remedies." He had also frequently conversed with me about the plan of the work, and, with the frankness and the candor which formed so amiable a trait of his character, had, I am inclined to believe, fully acquainted me with his ideas upon the subject in so far as they had then become matured. When, therefore, by his sudden and lamented death, it became necessary to find some one to carry forward to its completion the work which he had begun, a knowledge of these facts led, not unnatural- ly perhaps, to my selection for that service. In the per- formance of it, my aim has been to embody the design which I received from his own lips. Besides the plan, Mr. Angell's share of this book em- braces the first two chapters, already in print at the time of his decease, and much the larger portion of the fourth chap- ter. For the remainder I am responsible. And, though I VI PREFACE. cannot flatter myself that I have preserved the symmetry in its parts and the correspondence in the views presented, which would have characterized it had it been the product of a single miitd, I trust, nevertheless, that the few blem- ishes of this kind, which the reader may detect, will not materially detract from its utility. Another apparent deficiency may seem to call for expla- nation. The Reports abound with decisions upon English and American statutes, which are omitted. On this point it might be sufficient to say that I was expressly informed by Mr. Angell, that the compilation of these decisions formed no part of his design. I have, however, examined them myself, with the hope of discovering some principle of classification by which they could be pressed into service ; but have found that they relate to statutory provisions, so local and so heterogeneous in their character, that their introduction would only add to the bulk of the volume, without, in any corresponding degree, enhancing its use- fulness. THOMAS DURFEE. Providence, October 1, 1857. CONTENTS. CHAPTER I. MEANING OF fflGHWAYS. DIFFERENT KINDS OF, AND DISTINC- TIVE QUALITIES OF EACH. Page Table of Cases xi 1. "Wat 1 2. Highways 3 3. Turnpike Eoads 7 4. Plank Eoads 11 5. Eailkoads 12 6. Street and Cul-de-Sac 19 7. Eailwats in Streets 25 8. Bridges 31 9. Ferries 36 10. Canals 38 11. Navigable Eiters 40 12. Tow-Paths on Navigable Eivers . . . .60 CHAPTER II. OF THE LAYING OUT AND THE CONSTRUCTION OF HIGHWAYS BY LEGISLATIVE AUTHORITY. 1. Eminent Domain 64 2. Practice in England 67 VUl • CONTENTS. Page 3. Practice in the United States . . . .76 4. Op the Public Use 80 5. OOEPOEATE Feanchis'es 91 6. Provision fok Mode op Indemnity and the Pro- 101 CEEDINGS UNDER IT 7. Op the Kind and Mode op ' Compensation . 115 CHAPTER IIL HIGHWAYS BY PRESCRIPTION AND DEDICATION. I. Prescription 132 II. Dedication . . 135 1. Dbpinition and History 135 2. The Parties to Dedication .... 137 3. In what Manner a Dedication may be qualipied 140 4. "What constitutes a Dedication on the Part op THE Donor 146 5. What is sufficient Evidence to prove a Dedi- cation 148 6. What is sufficient Evidence to rebut the Pre- sumption OF Dedication . . . . 165 7. Limits op Dedication 171 8. Acceptance ........ 174 9. Dedication op Bridges 183 10. How Dedication may be lost .... 189 CHAPTER IV. ASSESSMENT OF ESTATES BENEFITED BY THE OPENING, WIDENING, OR IMPROVING STREETS. 1. Difference between Taxation and Assessment 191 2. Authority to assess 194 3. Proceedings under Authority to assess . . 215 CONTENTS. IX CHAPTEE V. DAMNUM ABSQUE INJURIA. 1. Where Injuries result from the Acts of Indi- viduals 227 2. Where Injuries result from the Acts of the Public, or its Agents at Common Law . . 231 3. Where Injuries result from the Acts of the Public, or its Agents in the United States 237 4. Liability for the Want of due Care and Dili- gence in Acts performed under Lawful Au- thority 248 CHAPTEE VL NUISANCES AND THEIR REMEDIES. I. Nuisances 254 1. Illegal Obstructions 255 2. Legalized Ostructions 272 3. Want of Eeparation at Common Law . . 289 4. Want of Eeparation in the United States . 297 II. Eemedies 321 1. Abatement 321 2. Indictment 324 3. Injunction . 331 4. Case for Special Damage .... 337 CHAPTEE VII. THE FEE IN HIGHWAYS. 1. The Eights op the Owner op the Fee . . 366 2. Presumptions from Adjacent Ownership . 385 3. Boundaries by Highways 387 4. Actions by the Owner of the Fee . . 395 5. Abandonment and Eeversion .... 398 X CONTENTS. CHAPTEE VIII. TRAVEL UPON HIGHWAYS. Page 1. Travel upon oedinart Roads and Streets • 410 2. Travel upon Turnpike Eoads .... 447 3. Travel upon Canals 457 4. Travel upon Railroads 470 5. Travel upon Ferries 527 6. Travel upon Navigable Eivers . . . 533 TABLE OF CASES. ■ [The Figures refer to the Sections.] Section Abbott V. Mills 142, 162 Absor V. French &, 254, 353 Acton V. Blundell 204, 206 Adams v. Beach 223, 274, 263 V. Carlisle 290 V. Emerson 810 V. Pease 67 V. Rivers 24, 305, 316 • V. Saratoga and Wash- ington Railroad Co. 33, 167, 245, 316 Addison v. Hard 423 Agricola, The 443 Aiken v. Lithgoe, 149 Albany Street, Matter of, 87, 194, 200, 311 Alden v. Murdock 315, 319, 326 V. N. Y. Central E. R. 886 Aldridge v. Great Western Railway Co. 411 V. Cheshire R. R. Co. 103 Alexander v. The Mayor of Baltimore 182 V. The State 278 Alger V. Lowell 262, 296 Aliwal, The 435 Allen V. Hancock 290 V. Lyon 224 V. Ormond 4 Almy V. Harris 416 Alton V. 111. Transportation Co. 74 Alves V. Henderson 142, 168 Am. River Water Co. v. Ams- den 66 Ammant v. Pittsburg Turn- pike Co. 415 Anderson v. Bath 296 Ann and Mary, The 426 Armington v. Barnett 92, 113 Section Armitage, ^a; ;?arte 325 Armstrong v. Jackson 101, 102 Arnold v. Mundy 318 Arthur v. The Commercial and R. R. Bank of Vicksburg 415 Arundell v. McCuUock 274 Aston V. Heaven 332 V. Miller 125 Athol, The 428 Attorney-Gen. v. Burridge 280 V. Case . 443 V. Cohoes Co. 282 V. Cleaver 280 V. Forbes 280 V. Hudson River R. R. Co. 248 V. Johnson 280 V. Manchester Railway 280 V. Mayor, &c. of New York 246 V. New Jersey Railroad and Transporta- tation Co. 281 V. Parmenter 281 V. Richards 280, 281 V. Sharp 246 V. The Great Northern Railway Co. 240 V. Utica Insur- ance Co. 280 Auburn, &c. Plank Road v. Douglass 98 Aurora Branch Railroad Co. v. Grimes 396 Austin V. Carter 41 Avery v. Maxwell 303 Ayers v. The Turnpike Co. 363 xu TABLE OF CASES. B. Section Babcock v. Lamb 304 V. Herbert 417 Bacon v. The City of Boston 263 Baden v. Mead 151, 160 Bailey v. Copeland 149 V. Mayor of New York 221, 300 V. Miltenberger 67 Baker v. Bolton 407 V. Boston 216 V. Clarke 144, 161 V. Lewis 57 Baldwin v. Buffalo 142 Ball V. Herbert 73 Ballard v. Dyson 3 Baltimore v. Pennington 262 Turnpike case 101, 102 and Susquehanna Railroad Co. v. Woodruff 411 Bank of the United States v. Dandridge 369 Bank of Augusta v. Earle 369 Barber v. Andover 92 V. Roxbury 297 Barclay v. Howell's Lessee 148, 301, 326 Bardwell v. Jamaica 270 Barker v. Commonwealth 223, 231 V. Essex 267 Barlow V. Mead 149 Barnes v. Baker 283 V. Cole 345, 447 Barney v. City of Buffalo 188, 199 Barr v. Stevens 285 Barraclough v. Johnson 141, 142, 153 Barrett v. Kemp 313 V. Stockton Railway Co. 368, 370 V. Williamson 447 Baron Holberg, The 426 Barron v. Davis 56 V. Mayor, &c. of Balti- more . 81 Bartlett v. Crozier 271, 286 Bateman w. Bluck 31,137 V. Burge 223 Bates V. Sutherland 359 Bath River Navigation Co. v. Willis 73 Section Batting v. Bristol and Exeter R. g. 33, 340 Batty V. Duxbury ^^^ Baxter v. Taylor _ 1^4 V. Winooski Turnpike Co. 272 Beach v. Parmenter 290, 331 Beardslee v. French 323 Beasley v. Mountain Lake Co. 82, 122 Beaty mv Gilmore 290 Beebe v. Ayers 375 Beekman v. Saratoga and Schenectady R. R. Co. 25, 87, 101, 103, 311,370 Bell V. Gongh 60 V. Dew 381 Beman v. Rufford 370 Benedict v. Goit 15, 214 Benest v. Pipon 3 Benlow v. Townsend 311 Benn's case 67, 254 Bennett v. Button 378 Benson v. Mayor, &c. of New- York 424 Berry v. Carle 67 Bigelow V. The Hartford Bridge Co. 283 V. Hillman 136, 143, 150 V. Rutland 290 V. Weston 48, 260 Biggs V. Ferwell 421 Bingham v. Doane 301, 313 V. Rogers 380 Binney's case 55, 60, 84 Bird V. Holbrook 347 V. Smith 48 Bissell V. New York 142 Blaekman v. Simmons 346 Blackwell v. AViswell 421 Blake v. The Midland Railway Co. 407 Blakemore v. Glamorganshire Canal Co. 80 Bleeker v. Ballou 173 Bliss V. Deerfield 262 V. Wilbraham 290 Blisset V. Hart 47,416 Blodgett V. Boston 85, 287 a V. Royalton 160, 162, Bloodgood V. Mohawk 268 and Hudson Railroad Co. 81 > 102,103 Blue Wing v. Buckner 438 TABLE OF CASES. XIH Section Blundell V. Cotterall 3, 48, 139 Blythe V. Birmingham Water- works Co. 25 V. Topham 346 Boiling V. Mayor of Petersburg 319 Bolton V. Colder • 340 Bomer v. Maxwell 381 Bonaparte v. Camden and Am- boy Bailroad Co. 92, 102, 112, 130, 311 Bonsall v. Town of Lebanon 183 Bordentown and S. Amboy Turnpike Co. v. Camden and Amboy R. E. Co. 239, 240 Borroughs v. The Housatonic Railroad Co. 411 Boscawen v. Canterbury 318 Boston V. Lecraw 150 V. Richardson 316 Boston and Lowell R. R. Co. v. Salem and Lowell R. R. Co. 92 Boston and Lowell R. R. Co. V. Proctor 374 Boston and Maine R. R. v. Mayor, &c. of Lawrence 23, 235 Boston and Maine R. R. v. Middlesex 118 Boston Turnpike Co. v. Bishop 357 Boston Water Power Co. v. Boston and Worcester Rail- road Co. 85, 86, 92 Boston and Roxbury Mill Co. V. Newman 85 Boss V. Litton 341 Bosworth V. Swansey 290 Boughton u. Carter 217,218 Boulton ?). Crowther 209 Bowen v. New York Central R. R. 386, 387 Bowers v. Suffolk Manufactur- ing Co, 136, 153, 159 Bowman v. Boston 268 V. Wicliffe 154 Bowman's Devisees v. Wather 69 Boyoe v. Anderson 419 Boynton v. Petersburg and Shirley Railroad Co. 112, 127 Brackett v. Lobke 300 Bradbee v. Christ's Hospital 285 V. The Mayor of Lon- don 205, 228 Bradford v. CoUey 314 Bradley v. Rice 318 * Section Bradley v. The Boston and Maine R.R. Co. 18,396 Bradshaw v. Hodges 81 U.Rogers 81,112 Brady v. Lowell 263, 286 Brailey v. Southborough 264, 287 Brainard v. Conn. River R. R. 284 Brand v. The Schenectady and Troy Railroad Co. 396 Bransom v. Philadelphia 92, 414 Breck v. Lebanon 102 Bremmer v. Williams 344, 389 Bretherton v. Wood 378 Bridge v. Grand Junction Rail- way Co. 290, 345, 386 Bridge Co. v. Hoboken Land Co. 35, 40, 96 Bridge Turnpike Co. v. Stoe- ver 310 Briggs V. Guilford 270 Bristol V. New Chester 81 British Cast Plate Manufactu- rers V. Meredith 208 British Museum v. Finnis 142, 147 Brittain v. Crawford Canal Co. 368 Broadwell v. Swigert 445 Brock V. Chase 162 Bronson v. Philadelphia 92 Brook u. Pickwicke 380, 381 Brooklyn, &o. R. R. Co. v. Brooklyn, &c. R. R. Co. 33 Brooklyn, &c. R. R. Co. v. Coney Island R. R. Co. 211 Brooks V. Buffalo 345 V. Hart 338, 339 V. The New York and Erie Railroad Co. 398 Brown v. Beatty 81 V. Chadbourne 56 V. Freeman 301 V. Kennedy 68 V. Maxwell 290, 401 V. Winooski Turnpike Co. 9 V. Worcester 142 Brownell v. Flagler 291, 345 V. Palmer 131 Buckingharfi v. Smith 88 Bucknam v. Bucknam 315 Budd V. Burke 318 Buel V. Clark 301 Buffalo V. Halloway 267 Buffalo and Niagara Falls R. R. Co. V. City of Buffalo 414 XIV TABLE OF CASES. Section Buffalo and N. Y. R. R. Co. v. Brainard 84 BuUard v. Harrison 6, 353 Bullock V. Wilson 69, 318 Buncombe Turnpike Co. v. Baxter 9 Burckle V. New York Dry Dock Co. 346 Burgess v. Gray 223 Burnet v. Johnson 91 Burnett v. City of Cincinnati 183 V. Sacramento 187 Burlington R. R. Co. v. Mount Pleasant 187 Burnham v. Boston 268, 290 V. Hotchkiss 274 Burry v. Donaldson 443 Burthe v. Fortier 149 Burton V. Railroad Co. 396, 414 Bush V. Brainard 308, 346 V. Steinman 221, 223, 228, 300 Bussey v. Storey 359 Butler V. Basing 383 Butler V. Toledo 194 Butterfield v. Forrester 290, 345 C. C. C. & C. Railroad Co. v. Keary 403 C. D. Jr. 274 Calder v. Chapman 268 Calking u. Baldwin 112 Callahan v. Bean 351 Callendar v. Marsh 38, 94, 212 Camden and Amboy Railroad Co. V. Burke 389 Camden Turnpike Co. v. Fowler 359 Campbell's case 87 Campbell v. Long 138 V. Race 353, 354, 355 Canaan v. Greenwood Turn- pike Co. 44 Canal Appraisers t;. The People 66, 318 Canal Commissioners i». The People 93, 318 Canal St., Matter of, 193, 200 Canal Trustees v. The City of Chicago 1 70 Canal Trustees v. Havens 149, 313, 318 Section Carey v. Cleveland and Tole- do R. R. 378 Carman v. Steubenville ^^^ Carle v. B. & P. Canal & R- R- Co. 404 Carolus, The 444, 445 Carpenter v. Gynn 1^2 V. Landaff US V. Oswego and Syra- cuse R. B. Co. 211 Carpue v. London and Brigh- ton Railroad Co. 386, 391 Carr v. Northern Liberties 312 Carrier v. Schoharie Turnpike Co. 358 Carroll i>. The New York and New Haven R. R. Co. 394 Carron v. Martin 220 Carruthers v. Sydebotham 443 Carsley v. White 439 Carson v. Blazer 68, 319 Carter' w. Murcot 54 V. Commonwealth 417 Casey v. The Berkshire Rail- road Co. 407, 410 Cassedy v. Stoekbridge 295 Gates V. Wadlington 58, 69 Cator w. Croydon Canal Co. 125 Celt, The 429, 448 Central Bridge Corporation, The V. Abbott 45 V. Bailey 41 D. Lowell 92 V. Sleeper 41 Central Military Tract Rail- road Co. V. Rockafellow 398 Central R. R. v. Copeland 383 V. Moore 290 Centre Turnpike Co ». Smith 359, 363 Centre Turnpike Co. v. Van- dusen 358 Chad V. Tilsed 322 Chadwick v. Tower 206 Chagrin Falls and Cleveland Plank Road Co. v. Cane 91, 214 Chambers v. Eaves 359 V. Fury 48, 304 V, Williams 359 Chamberlain v. Enfield 226, 261, 303 Chambersburg, &c. Co. v. Com- missioners 41 Chapin v. State 143 TABLE OF CASES. XV Section Chaplin v. Hawes 339 Champlin v. Pendleton 316 Chapman v. Albany and Sche- nectady Bailroad Co. 33, 214, 241, 245 V. Atlantic and St. Lawrence Kail- road Co. 412 V. Edwards 318 V. Gordon 149 Charles River Bridge v. War- ren Bridge 38, 94, 218, 369, 416 Charleston v. Middlesex 234 Charlotte St., Matter of 26 Chase v. Sutton Manufacturing Co. Ill Chatham v. Brainard 301. 315 Chelsey v. Smith ' 363 Cheney v. The Boston and Maine Railroad Co. 374 Cherry St., Matter of 311 Cheshire Turnpike v. Stevens 96, 358, 366 Chestney v. Coon 11, 359 Chestnut v. Shaw's Lessee 78 Chess V. Manown 48, 304 Chicago V. Mayor, &c. 259 V. Wheelgr 187 Chicago, &c. R. R. Co. v. Dewey 350 Chicago, &c. R. R. Co. ». Parks 376 Chichester v. Letheridge 285 Chidsey v. Canton 286, 287 Child V. Chappie 149 V. City of Boston 221 V. Starr 315, 318 Chilton V. The London and Croydon Railway Co. 377 Christie v. Griggs 344, 391 Christiana, The 443 Church V. Cherrvfield 259, 266 Churchill v. Rosebeck 345, 352 Cincinnati, City of, v. White 24, 134, 135, 142, 157 Cincinnati v. Newell 314 Cincinnati, &c. Turnpike Co. v. Neil 359 City of London, The 431 City Water Works, Matter of 84 Clap V. McNeil 315 Claremont v. Carlton 318 Clarence Railway Co. v. Great North of England Railway Co. 238, 247 Section Clark V. Commonwealth 338 V. City of Utica 192 V. Foot 206 V. Fry 216, 228 V. Spence 388 V. Syracuse and Utica Railroad Co. 21, 398 ti. Vt. and Canada R. R. 106 V. Wilmington 216 Clarksville Turnpike Co. v. At- kinson 9 Clay V. Wood 345 Claypool V. McAllister 421 Clement, The 426, 429 Clements v. West Troy 166 Cleveland v. Cleveland 136, 149, 155 Coates V. Clarence Railway Co. 283 Cobb V. Standish 260, 262, 290, 295 Coggeswell v. Lexington 260 Cohen V. Hume 46, 41 7, 419 Colchester, Mayor of, v. Brook 53, 274 Colden v. Thurber 144 Cole V. Canaan 27 V. Goodwin 387 V. Sprowl 142, 144, 156, 161 V. Trustees of Williams- burg 112 Coleman u. East Counties Rail- way Co. 80 CoUett V. The London and Northwestern Railway Co. 395 Collins V. Benbury 69 Collins V. Dorchester 262 Columbia Turnpike v. Wood- worth 369 Columbine, The 431 Commissioners v. Taylor 323 Commonwealth w. Alburger 167, 168 V. Alleghany Bridge Co. 13 u. Allen 334 V. Belding 261,275 V. Boston and Maine Rail- road Co. Ill V. Breed 484 V. Case 131, 143 V. Chapin 67 V. Charleston 84, 234 XVI TABLE OF CASES. Section Commonwealth v. Christian Fisher 311 V. Clapp 240 V. Cole 136 V. Coombs 106, 116 V. County Com- missioners 41 V. Deerfield 274 V. Erie and Northeast. R. E. Co. 235, 248, 274, 275 V. Fisher 49, 119 V. Fisk 136 V. Gammons 338, 341 V. Hancock 278 V. Hopkinsville 258 V. King 235, 275 V. Low 131, 224 V. Milliman 228 V. Nashua and Lowell R. R. 248, 275 V. New Bed- ford Bridge 248 V. Newbury 152 V. Old Colony R. R. Co. 131, 246, 275 V. Passmore 228 V. Peters 319 V. Power 371 V. Rush 168, 280 V. Norfolk Ses- sions 106 V. Sessions of Middlesex 116, 169 V. Springfield 258 V. Supervisors of Calley Township 181 V. Temple 91 a, 340, 845 V. Tucker 275 «. Turnpike Co. 275 V. Vt. and Mass. R. R. Co. 240, 248, 275 V. Wilkinson 9 V. Worcester Turnpike Co. 271 Section Cone V. Hartford ^}^ Congreve v. Smith 230 Conkliu V. Biting H. 360 Connahau v. Ford ^^^ Constable's case "^ Cook V. Champlain Transpor- tation Co. 411 V. Charlestown 297 V. Green 301, 313 V. Parhan 444 Cool V. Crommett 2, 274, 303 Coombs V. Topsham 296 Coon V. The Syracuse and Utica Railroad Co. 401, 403, 404 Cooper V. Smith 304, 318 V. Williams 49, 78, 91 Coovert v. O'Connor 60, 68 Corning v. Lowerre 283 Cornwall v. Sullivan Railroad Co. 398 Corrigall v. London and Black- wall Railway Co. 126 Cortelyou v. Vanbrandt 304 Cotton V. Com's Leon Co. 187 V. Houston 416 V. Wood 190, 341 Coulson V. White 283 County V. Leidg 383 Coutant V. Catlin 124, 194 Cox V. The State 67 Craig V. Rochester City, &c. R. R. Co. 211 Crawford v. Delaware 100, 106 Crittendon v. Wilson 103 Crocker v. The New London, Willimantic, and Palmer R. R. Co. 376 Crockett v. Boston 163 Crockett v. Newton 431 Crosby v. Hanover 92 Cubertson v. City of Cincinnati 183 Cumberland Valley Railroad Co. V. Hughes 386 Cummings v. Mayor of Brook- ■lyn 198 Cummings v. Waring 359 Cummins v. Spruanoe 429 Currier v. Lowell 267 Curry v. Mt. Sterling 114, 189 Curtis V. Keesler 72, 156 V. Rochester and Syra- cuse R. R. 386 Cutter V. Cambridge 233 Cynosure, The 426 TABLE OF CASES. XVll D. Section Daley v. Norwich and Worcester ' R. R. Co. 346 Daley v. Housatonic R. R. 290 Dalrymple v. Mead 56, 57 Damariscotta Toll Bridge Co. v. Cutler 41 Danforth v. Durrell 31, 136, 140, 338, 341 Daniels v. People 142 Danner v. South Car. Railroad Co. 398 Dartmouth College v. Wood- ward 369 Dascombe v. Buffalo 345 V. Buffalo and State Line R. R. 396 Davidson v. Boston and Maine Railroad Co. 129 Davies v. Mann 290, 345 V. Stephens 31, 134, 152 Davis V. Bangor 297 V. Dudley 290, 296 V. Hill 262 V. Leominster 262, 266, V. London & Blackwell Railroad Co. 206 267 V. Mayor, &c. New York 33, 245 Davison v. Gill 302, 310 V. Saunders 345 Dawes v. Hawkins 140, 151 Day V. Day 274 ... Milford 263 V. Stetson 47, 87, 112, 416 Deane v. Clayton 205, 347 Dearborn v. Boston and Con- cord, &o. R. R. Co. 106 Deaton u. Polk 116 Delaware, The Bark, v. Osprey 439 Delaware and Hudson Canal Co.u. ThePenn.CoalCo. 13,369 Delmonico v. The Mayor, &e. of New York 221 Deming v. Boone 1'43 V. Corning 123 Denslow v. New Haven and Northampton Co. 103 Derby Turnpike Co. v. Parks 359 De Varaigne v. Fox 85 Diana, The 443 Dickey v. Maysville and Lex- ington Turnpike Co. 359 Section Dickey v. Tennison 87 Dickinson v. Fitchburg Co. 106, 116, 118 Dill V. The South Carolina Rail- road Co. 385 Dimmett v. Eskridge 274 Dimock v. Suffield 261 Dixon V. Rauken 403 Doane v. Willoutt 318 Dock Company of Kingston- upon-HuU V. Brown 368 Dodd V. Holme 205 Dodge V. Co. Comrs. 106 V. Stacey 143, 162, 275 Donnaher v. The State 243, 414 Dore V. Gray 209 Dorian v. E. Br. and Waynes- burg R. R. Co. 106 Dorsay's Executor v. State 76 Doughty u. Hope 197 V. Somerville, &c. R. R. Co. 102 Dovaston v. Payne 303 Dover, Trustees of, v. Fox 142, 161 Downing v. Mt. Washington Road Co. 390 Drake v. The City of Lowell 263 V. The Hudson River R. R. Co. 32, 33, 214, 244, 247 Draper v. Worcester, &c. R. R. 382 Drew V. Chesapeake 433 Dubuque v. Malony 319 Dudley v. BoUes 331 V. Smith 378 Duffy V. Thompson 381 Dugan V. Bridge Co. 251 Duggins V. Witson 345 Duke of Sussex, The 433 Dummer v. Selectmen of Jersey 144 Dunoombe's case 254 Dundy v. Chambers 47 Dunham.u. Williams 319, 320 Dunlop V. Mt. Sterling 188 V. Stetson 318 Dwight V. Co. Com. of Hamp- den 114, 116 Dwinel v. Brainard 59, 144 V. Veazie 59, 228 Dyer v. Tuscaloosa Bridge Co. 84, 94 Dygert v. Bradley 52, 365 V. Schenck 271, 299 XVIU TABLE OF CASES. E. Section Earing v. Lansing 339 Eastern Counties Railway Co. V. Broom 371 East Haven v. Hemmingway 67 East India Co. v. Vincent 281 Eastman v. Meredith 221 Ebenezer, The 440 Egyptian Levee Co. v. Hardin 186 Elder v. Burrus 69 Eldridge v. Pomfret 44 Elkins u. State 275 Ellicotville Road Co. v. Buffalo 242 Elliott V. Fairhaven, &c. R.R.Co. 21 1 Ellis V. Carey 56 Ellis V. Portsmouth and Roan- oke Railroad Co. 411 Ellsworth J). Tartt 379 Elmendorf v. Mayor, &c. of New York 228 Elwood V. Bullock 197 Ely V. Bates 142 Embury v. Connor 81, 85, 87 Emily, The 434 Enfield Bridge Co. v. Hartford and New Haven R. R. Co. 92, 96 Epler V. Niman 143, 155, 188 Erie & N. E. Railroad Co. v. Casey 18 Erie and Waterford Plank Road Co. V. Brown 125 Erie City v. Schwingle 41, 292 Ernst V. Kunkle 183, 194 Estes V. Kelsey 274, 311 V. Troy 144 Europa, The 440, 446 Express, The 441 Eyman v. The People 278 F. Fairfield v. Williams . 301, 326 Fales V. Dearborn 336, 338 V. Whitney 357 Fanning v. Gregoire 94 Farmers' Turnpike Road v. Coventry 360 Farnsworth v. Groot 52, 366 Farnum v. Blackstone Canal Corporation 49 V. Concord 286, 290 Farrar v. Green 290, 296 Section Parwell v. The Boston and Worcester Railroad Co. 401 Fashion v. Ward 429, 431 Fawcett v. North Midland Rail- way Co. 3^^ Fay, petitioner, 416 V. Prentice 203 Fearnley v. Mosley 359 Felder w. Railroad Co. 397 Felton V. Deall 422 Fenton v. Swallow 359 Field V. "Vermont and Massa- chusetts Railroad Co. 18, 101 Fineaux v. Hovenden 285 First Baptist Church v. The Schenectady and Troy R. R. Co. 239,247, 413 First Church in Boston v. Bos- ton 106 First Parish in Woburn v. Co. Comrs. 109 Fisher v. Clisbee 417, 419 V. Coyle 8, 310 V. Harrisburg 312 V. Smith 315 Fitch v: Lothrop 358 Fitchburg R. R. Co. v. Boston and Maine R. R. Co. 101 Fitz V. Boston 259 Fitzpatrick v. Robinson 139 Fitzsimmons v. Inglia 345 Plagg V. Milbury 268 Flatbush Avenue 81, 97, 122, 188, 189 Fletcher v. Auburn and Syra- cuse R. R. Co. 93, 103, 218, 244 u. Boston and Maine R. R. 386, 388 V. Peck 41 D. Phelps 318 Flower v. Adams 290, 345 Floyd V. Oglesby 341 Fogg V. Nahant 293 Polger V. Worth 131 Folsom V. UnderhiU 162 V. Monroe 407 V. London and S. W. R. R. 386 Ford V. Chicago and N. W. R. R. • Co. 91a Fort Edward Plank Road Co. V. Paine 14 Fort Plain Bridge Co. v. Smith 41 Foster v. Dixfield 29 TABLE OP CASES. XIX Section Foster D. Goddard 331 Fourth Avenue, Matter of 193, 200 Fowler v. Lansing 2 v. Pratt 358, 360 V. Saunders 76,321 Fox V. Hart 323 Fox V. Sackett 290 Frazer v. Swansea Canal Co. 368 French v. Brunswick 289, 290 V. Camp 57 V. Marston 140 Fretz V. Bull 431 Friends, The 428, 429 Frink v. Lawrence 283 Frost V. Portland 268, 297 Fuller V. Edgings 95, 106 Fulton V. Kailroad Co. 383 u. Mehrenfeld 149,156 Fulton Village v. Mehrenfeld 162 Furman Street, Matter of 81, 96, 115, 193, 194, 200, 214,317 G. Gahagan's Ad'x v. Boston and Lowell K. K. Co. 290 Gal. and Chic. K. K. Co. v. Jacobs 350 V. Loomis 396 V. Yarwood 392, 378 Galitin v. Gardner 138 Gamble v. St. Louis 143 Gardner u. Greene 46,417 V. Newburgh 103, 203, 218 Gavett V. Manchester, &c. R. K. Co. 290 Gavitt V. Chambers 6 7 Gazelle, The _ 426, 433 General Steam Navigation Co., The, V. Mann 435 V. Morrison 435 Genesee Chief, The _ 71 Georgetown v. Alexandria Can- al Co. . 55, 280, 283, 284 Gerrish v. Brown 228 Gibbons v. Ogden 248 Gibbs V. Larrabee 162 V. Trustees of Liverpool Dock Co. 273 Gidney v. Earl 207, 304 Gildart v. Gladstone 368 Giles V. Fauntleroy 381 Gilman v. Deerfield 290 Section Gilman v. Eastern K. E. 406 Gleason v. Briggs 397 Glusburne Bridge case 157, 257 Goddard's case 185 Godfrey v. The City of Alton 74, 149 Goodal V. Milwaukee 100, 106 Goodloe «. The City of Cin- cinnati 218 Goodman v. Taylor 343 Goodtitle v. Alker 301, 302, 319 Gordon v. C. & J. Railway Co. 86 Gore V. West 301 Goshen and Sharon Turnpike Co. V. Sears 271 Gossler V. Georgetown 214 Gough V. Bryan 342 Gould V. Hudson River Railroad Co. 48, 53, 62, 75, 99 V. Glass 142, 157 Growan v. Exchange Co. 133, 140, 147 Grafton v. Metropolitan R. R. Co. 387 Grand Junction R. R. v. Co. Comrs. 92 Grant v. Courter 181 Graves v. Otis 214 Gray v. Bartlett 67 17. Shilling 359 Great Northern Railway Co. v. Shepperd 382 Great Surrey Canal Co. v. Hall 134,154,158 Great Western R. R. Co. v. De- catur 414 V. Thompson 398 Greely v. Camden & Amboy R. R. 384 V. Quimby 144 Green v. The Borough of Read- ing 209, 214 V. Danby 259, 260, 264 V. Canaan 162 V. Oakes 143 Green Mountain Turnpike Co. V. Hemmenway 359, 364 Greenleaf u. Kelton 318 Greenville and Columbia Rail- road Co. V. Partlow 78 Gregory v. Adams 85, 287a V. Commonwealth 223 Grier v. Sampson 331 XX TABLE OF CASES. Griesley's case Griesley v. Godling Griffin V. House V. Martin I). Sanbornton Gristman v. Railroad Co. Griswold V. Sharpe Grocers' Co. v. Donne Guilford v. Cornell Gunter v. Geary Gwynne v. Homan Section 224 285 360 2, 306 285 398 444 295 110 274 142 H. Habersham v. Savannah &c. Canal Co. 51 Haffield v. City of New Bed- ford 221 Haight V. Keokuk, 33, 69, 312 V. Morris Aqueduct 101, 102 Haldeman v. Beckwith 447 Hall V. Attorney-General 280 V. Boyd 41 V. Grantham Canal Navi- gation 368 V. McLeod 154 V. Smith 209 Halley v Winooski Turnpike Co. 298 Hamilton v. Annapolis, &c. Kail- road Co. 78, 87 Hamilton Avenue, Matter of 93, 95, 106, 188 Hamilton v. New York and Har- lem R. R. Co. 214, 243 Hammond v. Fuller 281 w. McLachlan 316,317 V. Pearson 230 V. Peugnet 316 Hancock Street, Matter of 181, 195 Handyside v. Wilson 425, 429 Hannibal v. Draper 149 Hannum, !). Belchertown 155 Harbeck v. Toledo 122 Hard v. Vermont and Canada Railroad 406 Hardenburgh v. Lockwood 303 Harding v. Jasper 151 Haring v. New York and Erie R- R. Co. 396 Harlow V. Fish 318 V. Humiston 299, 345 Section Harman v. Tappenden 209 Harness v. Chesapeake and Ohio Canal Co. 81, 87 Harper v. Charlesworth 140, 150 Harrell v. Ellsworth 41 Harriet, The 426, 427, 429, 430 Harrington v. County Commis- sioners of Berkshire 301 Harris v. Elliott 301 V. Thompson 84, 89 Harrison v. Brough 359 V. James 359 V. Parker 104 V. Young 106 Harrow v. The State 232, 268, 278 narrower v. Ritson 226, 274 V. Brown 303 Hart V. Basset 285 V. Chalker 301 V. Hill 60 V. Mayor of Albany 75, 274 V. Trustees 131 V. Western R. R. Co. 18, 412 Hartfield v. Roper 345, 346 Hartford and Dedham Turn- pike Co. V. Baker 360 Hartford Bridge Co. v. East Hartford 94 Harwood v. Lowell 287 Haswell v. Annapolis, &c. R. R. Co. 18 V. Vermont Central R. R. Co. 310 Hatch V. Dwight 318 V. Central R. R. Co. 96 Hathem v. Stinson 318 Havens v. Hartford, &c. R. R. 376 Hawkins v. Berkshire 124 V. Dutchess of Orange Steamboat Co. 429, 430 Hay V. Le iNeve 438, 447 V. The Cohoes Co. 203 Hayden v. Attleborough 261 Haynes v. Thomas 91a Hayraft v. Creasy 203 Hays V. Bowman 67 V. Western R. R. Co. 401, 407 Hayward v. Mayor of New York 311 Heacock v. Sherman 271 Head and Amory v. The Provi- dence Insurance Co. 369 Headlam v. Headly 313 Hearsey v. Boyd 359 TABLE OF CASES. XXI • Section Hearsey v. Payne 359 Hedges v. Madison 288 Heegan v. Eighth Avenue R. R. Co. 33, 340 Hegeman v. "Western R. R. Co. 387 Heland v. Lowell 287a Heman v, Drinkwater 383 Hemmingway v. Fernanden 1 7 Hemphill v. Boston 140, 268 Henn's case 5, 353 Henry v. Henderson 78 V. Pittsburg and Alle- ghany R. R. Co. 91a, 214 Henshaw v. Hunting 168, 324 Hentz V. Long Island Railroad Co. 33, 35, 247 Hepburn's case 87 Herring v. Fisher 316 V. New York and Erie R. R. Co. 290 V. Willimantic and Raleigh R.R. Co. 399 Hewins v. Smith 151 Hibbard v. New York and Erie i R. R. 375 Hickenbotham v. Perkins 359 Hickock V. Plattsburg 221 Hiokox V. Cleveland 218 V. Naugatuck R. R. Co. 381 V. The Providence and Worcester Rail- road Co. 220 Hicks V. Fish 131 V. Williams 50 Higgins V. Cheshire and Dela- ware Canal Co. 217 Higginson v. Nahant 85 Hildreth v. Lowell 285 Hill V. Higdon 183 V. Mohawk and Hudson R. R. Co. 83, 108, 168, 188 Hillary v. Walker 324 Hilliard v. Gould 376 Hinckley v. Hastings 144 Hind V. Wabash Navigation Co. 83 Hixon V. Lowell 263, 297 Hobart V. Frisbie 188 Hobbs V. Lowell 24, 133, 142, 143, 144, 159, 162 Hodgkins v. Long Island R. R. Co. 247 Hoge V. Swan 87 Hogg V. Gill 151 Section Hogg V. Zanesville Canal Co. 55 Holaday v. Marsh 307 Holbrook v. McBride 155 V. The Utica and Sche- nectady R. R. Co. 391 Holdane v. Coldspring 31, 136, 142 Holden v. Shattuck 303 Hollenback v. Rowley 155, 303, 314, 324 HoUey v. Gas Light Co. 386 Hollingshead v. Liverpool and Leeds Canal Co. 368 Holman v. Townsend 264, 287 Holmes v. Jersey City 159 Home V. McKenzie 6 Homer v. Illinois Central R. R. Co. 404 Hone V. Wildlake 224 Hood V. The New York and New Haven R. R. Co. 378, 390 Hoole V. Attorney-General 134, 143, 160, 157 Hope, The 427, 429, 430 Hooker v. New Haven and Northampton Co. 84, 96, 218 V. Utica and Minden Turnpike Co. 83, 93, 310, 311 Hooper v. Cummings 66, 378 Hopkins v. Crombie 274 V. Kent 318 V. Stockton 359 V. Thorogood 359 Horton v. Ipswich 259, 293 Housatonic Turnpike Co. v. Frink 359 Howard v. Hutchinson 301 V. IngersoU 318 V. North Bridgewater 261, 299 V. Providence 106 Howell V. London Dock Co. 181 Hubbard v. Concord 297 V. Deming 274 Huber v. Gasley 167 Huberts. Groves 285 Hudson and Delaware Canal Co. u. New York and Erie R. R. Co. 93 Hudson River Railroad Co. v. Cutwater 18 Hughes V. Keiser 285 xxu TABLE OF CASES. Section Hughes V. The Providence and Worcester R. R. Co. 220, 237, 285, 315 Hull V. Paris 289 V. Power 271 V. Richmond 259, 260, 268 Humes V. Mayor, &c. of Knox- ville 214 Hunt V. Pownal 262, 295, 344 V. Rich 305, 315 Hunter v. Middleton 149 V. Trustees of Sandy Hill 133, 156 Hurd V. Rutland and Burling- ton R. R. Co. 398 Hutohins v. Boston 297, 667 Hutchinson v. Chester 122 V. Manchester and Rosendale R. B. Co. 86 V. Newcastle R. R. Co. 399 Hutson V. Mayor, &c. of New York 163 Hutto V. Tindall 151 Hyde v. Middlesex 106 Illige V. Goodwin 343 111. Cent. R. R. Co. v. Buckner 396 V. Copeland 381 V. Reedy 389 Ilott V. Wilkes 347 Imly V. Union Br. R. R. Co. 211 Indianapolis v. McClure 4, 161, 268 Ingalls u. Bills 344,387 Ingraham v. Threadgill 69 Innis V. The Steamer Senator 438 Ipswich, ex parte 318 Iron Duke, The 440 Irwin V. Dixon 149, 153 Israel v. Clark 344, 387 Itinerant, The 440 J. Jackson v. Curwen 359 V. Hathaway 2, 304, 311, 315, 326 Jackson v. Low 318 V. Rutland and Bur- lington R. R. Co. 398 Section Jackson v. Smiley 143 V. Wilkinson 302, 319 Jacobs V. Bangor V. Louisville 268, 291 113 James v. Hayward 223, 274 V. Johnson 366 James River and Kanawha Co. V. Turner 118 James Watts, The 432 Jameson v. Dunkeld 426 Jaquith v. Richardson- 338 Jarvis v. Dean 136, 142, 144, 157 Jay V. Whitfield 347 Jencks v. Coleman 373 Jenkins v. Cooke 368 Jenks V. Wilbraham 297a Jennings, ex parte 66, 103, 318 Jersey City v. Morris Canal Co. 142, 149 Johann Freiderich, The 449 John and Cherry Streets, Mat- ter of 124, 190, 200, 201 Johnson v. Anderson 315 V. Hitchcock 416 V. Lewis 275, 303 V. Lowell 267, 297 V. Small 332, 335, 344 V. Stayton 143 V. Stone 383 V. Whitfield 260, 261 Jones V. Andover 290 V. Bird 219, 221 V. Cowman 315 V. Estis 360 V. Pettibone 67, 318 V. Pitcher 433 V. Soulard 67 w.Waltham 262, 267, 398 V. Voorhees 380, 381 Jordan v. Fall River R. R. Co. 380 Jordin v. Crump 347 Jupiter, The 426 Justice V. Commonwealth 223 K. Kane v. The People 271 Kearney v. The Boston and Worcester R. R. Co. 410 Keegan v. The Western R. R. Co. 405 Keith V. Easton 261, 297 TABLE OF CASES. xxm Section Kelley's case 160 Kellogg V. Ingersoll 304 V. Northampton 261 Kelly V. Commonwealth 223 V. Cunningham 438, 447 V. New York 221 Kelsey u. Glover 259, 260, 262, 286, 290, 295 V. King 312 Kennard v. Barton 290, 335, 350 Kennedy J). Jones 135,301 V. Wray . 342 Kent V. Elstob 447 V. Newburyport Turnpike 359 Keppel V. Bailey 1 7 Ker V. Mountain 378 Kerwhacker v. Railroad Co. 398 Kidder v. Dunstable 296 Kimball v. Bath 267, 268 King V. Gough 359 V. King 318 Kingsbury v. Dedham 297 Kinlock v. Neville 74 Kirby v. Boylston Market 263, 266 Knight V. Heaton 323 Knowlton v. Sandford 445 Lack V. Seward 345, 447 Lacour v. Mayor, &o. of New York 220 Ladd V. Chotard 421 Lade v. Shepherd 133, 143, 157, 301 Lady Anne, The 426, 429 Laimbeer v. Mayor, &c. of New York 188, 197 Lamb v. Rieketts 67 Lambert v. Bessy 203, 204 Lancaster Canal Navigation v. Parnaby 22, 273 Lancaster Turnpike Co. v. Rogers 274 Lane v. Bryant 245 V. Crumble 290, 345 Langlois v. Buffalo and Roch- ester R. R. Co. 398 Lansing v. Smith 95, 215, 285 ■ V. Wisnall 285 Lapish V. Bangor Bank 318 Larned v. Larned 143 Lasala v. Holbrook 100, 206 Lawrence v. Fairhaven 218 Section Leader v. Moxton 208, 219 Leame v. Bray 341 Lebanon v. Olcott 214 Ledyard v. Ten Eyck 73 Lee V. Milner 109 Leeds and Liverpool Naviga- tion Co. V. Hustler 368 Lees V. Manchester Canal Navi- gation 368 Lemon v. Heyden 143, 162 Le Neve v. The Vestry of Mile End Old Town 140 Leopard, The 426, 431 Lequat v. The People 278 Lethbridge v. Winter 152 Lewis V. Hammond 359 V. Keeling 57, 75 V. Litchfield 44, 270 V. Wilm.andMan. R. R. 128 Lewis Street, Matter of 149,317 Lewiston v. Proctor 143, 168 Lexington and Georgetown Turnpike Co. v. Redd 358 Lexington and Ohio R. R. Co. V. Applegate 33, 79, 214, 247 Lexington, City of, v. McQuil- lan's Heirs 187 Libbeyu. Greenbush 296 Lindsay v. Commissioners 79 Linfield v. Old Colony R. R. 396 Linton v. Sharpsburg 270 Lister v. Lobbey 80, 112, 125 Littledale v. Lord Lonsdale 300 Littlefield v. Biddeford 288 Littlejohn v. Jones 41 7 Livermore v. Jamaica- 169 Livingston v. Mayor of Brook- lyn 102 V. Mayor of New York 24, 31, 149, 181, 317 Lloyd V. Mayor, &c. of New York 221 Loaring v. Stone 859 Lobdell V. New Bedford 44, 270, 289 Lochlibo, The 444 Lockwood V. Lashell 433 Loder v. Arnold 274 Logan V. Burton 4 V. Ponchartrain R. R. Co. 380 Logansport v. Dunn 149 Loker v. Brookline 258, 264, 286 Lombard v. Cheever 48 XXIV TABLE OP CASES. Section London and Greenwich Kail- way Co. in re 126 Long V. Home 378 Loring v. Aborn 3 74 Lorman v. Benson 56, 67 Louisville and Nashville R. R. V. Collins 404 Louisville and Nashville Turn- mke Co. V. Nashville and Kentucky Turnpike Co. 69 Louk V. Woods 144 Lovejoy v. Dolan 336 Lovett V. Salem and So. Dan- vers R. R. Co. 351 Lowell V. Boston and Lowell R. R. Co. 267, 298 V. French 185 V. Hadley 185 V. Moscow 268 V. Proprietors of Locks and Canals 49 V. Robinson 318 V. Short 298 V. Spaulding 298 V. Wheelocls 188 Lowrey v. The Steamer Port- land 426, 429, 433 Lucas V. Taunton and New Bedford R. R. 290 Luce V. Charley 318 Lunt V. Holland 318 Luther v. Winnisimmit Co. 116 Luxford V. Large 345 Lyman v. Boston and Worces- ter R. R. Co . 413 Lynch v. Mallory 96, 115 V. Nurdin 345, 347 Lyon V. Jeremy 51 M. Maohu V. London and South- western R. R. 388 Mackay v. N. Y. Central R. R. 396 Macon v. Franklin 134, 142, 156 Macon and Western R. R. Co. V. Davis 397 Mad River and Lake Erie R. R. V. Fulton 383 Madison City v. Ross 259 Madison, &c. Plank Road Co. V. Reynolds 360 Section Madison and Ind. R. R. v. Ba- con 404 Mahon v. New York Central R. R. 91a, 359 Makepeace v. Worden 2, 304 Makinnon v. Penson 286 Mallory v. Austen 9, 360 Manan v. Brown 206 Manchester Railway Co. v. Wallis 398 Manice v. New York 197 Manihew v. The Milwaukee and Mississippi R. R. Co. 372 Manly v. Gibson 149, 161 Mann v. Marston 274 Marble v. Worcester 297a Marcy v. Taylor 159 Maria, The 426, 443 Mariner v. Shute 67 Marion v. Epler 183 Markham v. Brown 371 Marriott v. Stanley 347 Marselis v. Seaman 1 Marsh v. Blythe 426 V. Burt 214 V. The New York and Erie R. R. Co. 398 Martin, ex jtjarte 76,81,211 V. Mayor of Brooklyn 221 V. The Great Northern Railway Co. 352 Mason v. EUesworth 288, 289 V. Hill 204 Massachusetts, The 444, 445 Mathews v. Winooski Turn- pike Co. 272 Maxwell v. East River Bank 143 May V. Hanson 419 V. Nahant 293, 296 V. Princetown 290 Maynell v. Saltmarsh 285 V. Surtees 301 Mayor v. Bailey 210 V. Humphries 342 V. Mabury 185 V. Oxenham 359 V. Randolph 210 McAllister v. Albion Plank Road Co. 14, 361 McArthur v. Kelley 90 McCahill V. Kipp 343, 340 McCarthy v. State 33 McClenathan v. Curweu 119 McCoombs v. Aiken 218 TABLE OF CASES. XXV Section McCormick v. Hudson River R. R. 381 McCready v. South Carolina R. R. Co. 411 McCuUough V. Hall 818 McDonald v. Lindell 1 McDonough v. Gilman 275 McElroy v. Nashua and Lowell R. R. Co. 386, 388 McGill V. Rowand 380, 381, 383 Melntyre v. The State 185 MoKinney v. Niel 342, 391 McLeod V. Savannah R. R. Co. 35, 96 McManus v. Carmichael 55, 69 McMasters v. Commonwealth 102, 113, 114, 181 Meacham v. Fitchburg R. R. Co. 18, 117, 124 Mead v. Haynes 6 7 Mearls v. Commissioners of Wilmington 219 Medford Turnpike Co. v. Tor- rey 359 Mellen v. Western R. R. Co. 221 Memphis v. Lasser 221 V. Overton 74, 86 Mercer Street, Matter of 317 Merrick v. Phelps 359 Merrill v. Grinnell 381 V. Hampden 259, 290, 297 Merriter u. Cooper 378 Merrow ?;. Willard 314 Michall V. Alestree 300 Middletown v. Page 67 V. Pritchard 67, 74 Milburn v. City of Cedar Rapids 33 Miles V. Rose 259 Milhau V. Sharp 33, 241, 245, 311 Miller v. Canal Commissioners 389 I;. New York and Erie R. R. Co. 92 Mills V. Hall 275 Mills Co. V. St. Clair 48 Milwaukie v. Davis 219, 262 Missouri Institute v. How 167 Mitchell V. The Pennsylvania R. R. Co. 402 V. Kirkland 188 Moffett V. Brewer 55, 274 Mohawk Bridge Co. v. Utica and Schenectady R. R. Co. 94, 95 Section Monmouthshire Canal Co. v. Kendall 368 Monongahela Navigation Co. V. Coons 60, 91a, 110 Montgomery v. Gilmer 312 Montreal, The 444 Moore v. Abbott 290, 298 V. Central R. R. Co. 345 V. Moss 426, 429, 433 V. Sanborn 56 V. Veazie 60 Morant v. Chamberlain 140 Morey v. Newfane 258, 286 V. Taylor 142 Morgan v. Brooklyn, &c. R. R. Co. 351 V. King 55, 56, 72, 81 V. Reading 75 Morison v. Keen 318 Morris v. The City of Chicago 185 Morris and Essex Railroad Co. V. Newark 91 Morris Canal and Banking Co. V. Townsend 82 Morrison v. St. Paul 187 Morse v. Boston and Maine R. R. Co. 101 u. Ranno 142 V. Stooker 136 Moses V. B. and M. R. R. 382 Moshier v. The Utica and Schenectady R. R. Co. 240, 411 Moss V. Moore 559 Moulton V. Inhabitants of San- ford 296 Mt. Washington Road Co. 85, 106 Muir V. Canal Co. 369 Munger v. Tonawanda R. R. Co. 21 Munroe v. Leach 345, 351 Murdock v. Warwick 290, 296, 344 Murphy v. Chicago 267 Murray v. South Carolina Rail- road Co. 401 Myers v. Perry 433 N. Najac V. Boston and Lowell R. R. 378 Nashville, &o. Railroad Co. v. Concordia 101 V. Peacock 398 XXVI TABLE OF CASES. Section Nassau Street, Matter of 170, 172, 174 Neal V. Gillett 345 Neptune, The 440, 443 Nevins v. Bay State, &o. Co. 381 Newark Plank Road v. Elmer 33, 247, 248 Newburgli and Cochecton Turnpike Co. v. Belknap 359 Newbury v. Connecticut and Pass. Rivers R. R. Co. 298 Newburyport Turnpike Co. v. Eastern Railroad Co. 23, 235 Newhall V. Ireson 315 Newkirk v. Sailer 353 New Jersey R. R. Co. v. Ken- nard 387, 392 Newlaud v. Buncombe Turn- pike Co. 359 New Orleans and CarroUton R. R. Co. V. The Second Mu- nicipality of New Orleans 33, 414 New Orleans v. Milwaukie 187 V. The United States 135, 167, 317 V. Turpin 187 Newton V. Stebbins 431, 440 New York, Corporation of, v. Mapes 193 Mayor of, u. Furze 221 V. Living- ston 195 New York and Erie R. R. Co. V. Skinner 396, 398 Nibbett v. Pottow 359 Nichols «. Bertram 13,363,364 V. Bridgeport 170, 182,188, 189, 191 Nicholson v. The New York and New Haven R. R. Co. 218 V. Stockett 326 V. Williamstown 359 Nickerson v. Crawford 318 Niles I). Patch 318 Noble V. Cunningham 315 Norman v. Hirst 84 Norris v. Androscoggin R. R. Co. 398 w. Hill 318 V. Litchfield 262 V. Pate 359 North Straffordshiie R. R. Co. V. Dale 272 Section Northern Bridge and Road Co. V. London and Southampton R. R. Co. , 9 Northern Liberties v. St. John's Church 170 Northern Railroad Co. v. Con- cord and ClaremontR. R. Co. 92 Northern Railroad Co. t). Paige 375 Norton v. Wiswell 421 Norvall v. Cornell 11, 360 Norwich v. Commissioners 270 Noyes v. Morristown 290 V. Smith 404, 405 V. Turnpike Co. 271 V. Ward 143, 144, 156, 157 O. O'Brien v. Norwich and Wor- cester R. R. Co. 283 O'Connor t). Pittsburg 214 Odiorne v. Wade 131 O'Hara v. Lexington, &c. R. R. Co. 78 O'Linda v. Lothrop 305, 315, 317 Old Colony R. R. Co. v. Ply- mouth 93, 109, 118 Oliver V. New York and Erie R. R. Co. 386 Openheim v. Edney 383 Orange County Bank v. Brown 381 Orendorff v. Steele 318 Ormond v. Widdicombe 359 Osprey, The 427 Oswego, City of, v. Oswego Ca- nal Co. 160 Oswego Falls Bridge Co. v. Fish 95 Ottawa V. Macy 187 Owners of Ground Assessed v. Mayor, &c. of Albany 176,189 P. Page V. Weathersfield 160, 268 Palmer v. Andover 262, 295, 344 V. Barker 332, 336 V. Grand Junction Rail- way Co. 380, 386 V. Mulligan gg V. Portsmouth 297 TABLE OF CASES. xxvu Section Palmer v. Silverthorne 226, 303 Panton v. Holland 206 Panton Turnpike Co. v. Bishop 359 Pardee v. Blanchard 359 Pardre v. Drew 381 Park V. O'Brien 343 Parker v. Adams 334, 836 V. Boston and Maine R. E. Co. 37 V. Cutler Milldam Cor- poration 41 V. Foot 206 V. Great Western Eail- way Co. 370 V. Inhabitants of Fra- mingham 310, 314, 315 V. Lowell 218 V. The Rensselaer and Saratoga R. R. Co. 398 Parks V. Boston 124, 200 V. Ross 290 Parrot v. C. H. and D. R. R. Co. 33, 91a, 247 Partridge w. Dorsay 87 V. Scott 206 Passumpsic Turnpike Co. v. Langdon 359 Pate V. Henry 46, 418 Patterson v. East Bridgewater 248 Paul V. Carver 315 Paulet V. Clark 156 Payne v. Patrick 285, 321, 416, 423 i>. Rogers 285 Peacock v. Harris 363 Pearl Street, Matter of 107, 200 Pearth, The 432, 440 Peck V. Mayor, &c. of New York 221 V. Niel 342 V. Saunderson 431 . V. Smith 2, 301, 304, 311, 314, 315, 320 Peckham v. Henderson 168 V. Justices 76 Peixotti u. McLaughlin 380,417 Pelham v. Pickersgill 356 Pennsylvania Railroad Co. V. Fisher 169 V. Heister 101,114, 116 W.Kelly 347 V. McCluskey 408 V. McLighe 345 Section Pennsylvania R. R. Co. v. Ogier 345 V. Pitts- burg Grain Elevator Co. 283 Pennsylvania, State of, v. Wheel- ing Bridge Co. 249, 250 Penny Pot Landing v. City of Philadelphia 141, 167 Penruddock's case 203 People V. Adsit 278 V. Albany 221, 258 V. Albany &c. E. R. Co. 19 V. Babcock 47 V. Beaubien 149, 161, 162 V. Canal Appraisers 60, 93 V. Cunningham 229, 275 V. Haws 180 V. Jackson 169 V. Johnson 31 V. Jones 162 V. Kerr 33, 91o, 245 V. Kingman 31 V. Kingston Turnpike Co. 360 V. Lambier 26, 149 V. Law 91 a V. Lawrence 180 V. Mayor of Brooklyn 77, 110, 113, 115, 170, 171 V. New York and Har- lem R. E. Co. 246 V. Piatt 66, 93 v. Saratoga and Rensse- laer R. E. Co. 248 V. Smith 84 V. Supervisors 102, 103 V. Third Avenue R. R. Co. 33, 245 V. Tisdale Turnpike Co. 270 V. White 78, 81, 311 People's Bridge v. Hoboken Land Co. 270 Peoria v. Kidder 170 Peoria Bridge Co. v. Loomis 272, 350 Perkins v. The Eastern, &c. Eailroad Co. 378 Perley v. Chandler 303, 319, 326 Perrine v. Chesapeake and Del- aware Canal Co. 369 Perry v. Wilson 78 V. Worcester 218 Peter v. Kendal 46, 416 Peters v. Ryland 386, 388 Pettingill v. Porter 155, 324 XXVlll TABLE OF CASES. Section Peyson v. Howard 63, 64 Peyton v. Mayor, &c. of Lon- don 206 Phelps V. London and North- , western R. E. 381 Philadelphia E. R. Co. v. Derby 338 Philadelphia and Reading E. E. Co. V. Yeiser 411 Philadelphia and Trenton Rail- road, Matter of 91a, 311 Phillips V. Bloomington 418 V. Bowers 314, 315 V. Harper 359 V. Veazie 266, 267 Phinney v. Watts 318 Phipps V. The State 150 Pierce v. Dart 285 V. Selleck 1 V. Somersworth 92 Piggott V. Great Western Rail- way Co. 411 Piloher v. Hart 231 Pillsbury v. Moore 275 Pingry v. Washburn 364 Piscataqua Bridge Co. v. New Hamp. Bridge Co. 38, 41, 92, 96 Pitcher v. New York and Erie R. E. Co. 167 Pitt Township, in re 83 Pittsburg V. Scott 84, 87, 112 Pittsfield, &c. E. R. Co. v. Fos- ter 102 Plank Road Co. v. Husted 14 V. Eamage 14 V. Eineman 14 V. ThoruEis 14 Plant V. Long Island E. E. Co. 33, 214, 241, 244 Pluckwell V. Wilson 329, 345, 349 Pollard V. Hagan 81 Polly V. Saratoga and Washing- ton R. E. Co. 18, 112 Pomeroy v. Donaldson 46, 417, 420 u. Fifth Massachusetts Tump. Corp. 272 V. Chicago and Milwau- kee R. E. Co. 91o Poole V. Huskisson 3, 140, 141, 142, 313 Pope V. Langworthy 358 Porter v. County Commissioners 18 Post V. Pearsall 133, 135, 142, 143 Potter ;;. Pettes 227 Powell V. Myers 380 Section Powell V. St. Joseph 187 Prather v. Ellison 310 Presbyterian Church v. New • York 216 President, Managers, &c. v. Tren- ton City Bridge Co. 42, 96 Priestley v. Fowler 399 Prinz V. Pearsey 301, 313 Pritchard v. Atkinson 304 Proctor V. Crozier 359 V. Lewiston 142, 152 Propeller Genesee Chief, The, V. Fitzhugh 434 Propeller Monticello, The 431 Proprietors of Bridges v. Hobo- ken Land Co. 35, 40 Protector, The, 443 Providence, City of, v. Clapp 259, 263, 264, 265, 266, 268 Pudor V. Boston and Maine E. E. Co. 383 Q. Quimby v. Vermont Central E. R. Co. 398 V. Vanderbilt 378 R. E. B. Forbes, The, 427 Eadcliff 's Ex'rs v. Mayor, &c. of Brooklyn 100, 101, 206, 212, 221 Ragan v. McCoy 142, 167 Ralston V. The State Rights 447 Ramsden v. Manchester, S. J. and A. Railway Co. 91a Ranch v. Lloyd 347 Rand «. Townshend 127 Randall u. Cheshire Turnpike Co. 271 Rathburn v. Payne 345, 346, 363, 436 Ray V. Manchester 297 Raymond v. Lowell 263 Eedding v. Dilley 101 Eed River Bridge v. Clarksville 92 Reed v. Belfast 286, 287 V. Deerfield 290 V. Leeds 315,320 u..Northfield 131, 268, 289, 290 TABLE OF CASES. XXIX Section Reed v. Soituate 162 Reed's petition 315 Rees V. Chicago 151 Reeves u. The Ship Constitution 441 Regents of the University of Maryland v. Williams 81 Regina v. Bamber 269 V. Barnoldswick 255 V. Blakemore 255 V. Botfield 276 V. Brecknockshire 257 V. Buooleugh 256 V. Eastern Counties Rail- road Co. 86, 220, 237 V. East Mark 142, 150 V. Fisher 276 V. Frydden 252 V. Inhabitants of Horn- sea 269 V. Kingsmore 252 V. Leach 224 V. Leicestershire and Northampton Un- ion Canal Co. 368 V. Lincoln 257 V. Little Bolton 252 V. Midville 252 V. Nether Hallam 252 V. Patrie 143, 145, 156, 158 V. Ramsden 5, 254 V. Paul 269 V. Roscoe 359 V. Saintoff 4 V. Scott 237, 252 V. Sharpe V. Sheffield Gas Co. V. Southampton V. Steventon V. Train V. Turweston u. Warner V. Watts V. Wilts V. Worcestershire Reimer v. Stuber Remington v. Millard Renquite v. Lawrence Renwick v. Morris Rensselaer v. Plank Road Co. Respublica v. Sparhawk Rext). Adams V. Balm V. Barr V. Bishop of Auckland 233 238 224 257 277 462 277 187 225 164 188 151 161, 162 143 275 14 76 359 275 134 255 Rex V. V. V. V. V. V. V. V. V. V. t/. V. V. V. V. V. V. V. V. V- V. V. Section Bristol Dock Co. 209 Buckeridge 256 Buckinghamshire 257 Bucknol 164 Bucks 38 Canfield 228 Chelsea Water Works 49 Commissioners of Llan- dillo 254 Cross 228, 343 Cumberland 257 Cumberworth 2, 79, 158 Derbyshire 36, 257 Devon 39, 164, 257 Devonshire 276 Eastington 252 Ecclesfleld 252, 255 Edge Lane 5, 79 Edmonton 150, 313 Egerly 223, 231 Flecknow 224, 254, 325 Glamorgan 164 Gloucester and Birming- ham Railway Co. 255 Great Broughton 252, 255 Grosvenor 234 Haslinaford 188 Hatfield Heage Hudson Jones Kent Knight Kerrison Lancashire Leake Limehouse Lindsey Liverpool 255, 315 255 133, 139 228 49, 164, 165, 257 276 166,275 16^, 267 134, 141, 158 4 49 252, 255 Liverpool and Manches- ter Railway Co. 126 Lloyd 27, 29, 136, 143, 157 Lyon 79, 140, 158 Machynlleth 255 Mayor of Warwick 252 Mellor 152,157 Mersey Navigation Co. 310 Mile End 252 Miller 79 Montague 56, 169 , Moore 225, 231 Morris 233, 237, 240, 242 Neatherthong 252 Northampton 38, 139, 257 XXX TABLE OF CASES. Section Kex V. Oxford Canal Co. 49 V. Oxfordshire 252, 256, 257, 269 V. Pappineau 279 V. Pease 239 V. Penderryn 252 V. Ragley 252 V. Russell 86, 227, 325, 343 V. Salop 257 V. Sannon 231 V. Scarisbrook 262 V. Severn and Wye Kail- way Co. 18, 10 V. Sheffield 252 V. Smith 64, 228 V. Stead 279 V. Stoughton 252, 254, 275 V. Stratford-upon-Avon 255 V. St. Andrew V. St. Benedict 152, 158, 164 V. St. George, Hanover Sq. 252, 267 V. St. Giles, Cambridge 255 V. St. James 321 V. St. Leonard 17, 276 V. St. Mary 49 V. St. Pancras 255 V. Thomas 310 V. Tone Conservators 368 V. Townsend 255 V. Trafford 267 V. Trustees of Norwich and Watton Road 126 V. Ward 86, 224, 321 *v. Watts 230 V. Webb 228 V. West Riding of York- shire 157, 164, 255, 257 V. Whitney 257 V. Woking 49 V. Wright 155 V. Yorkshire 77 Rexford v. Knight 115, 169, 310 Rhode Island, The 433 Rhodes ti. Cleveland 218 V. Otis 56 Rice V. Montpelier 259, 260, 290, 291 V. Ruddimon 67 Richards v. Enfield 287a Richardson «. Curtis 124 V. Railroad Co. 397 V. Royajton 270, 272 Ricketts u. Junction Railway Co. 398 •I Section Riddle v. Proprietors of Locks and Canals 49, 286 Ridenow D. Saffin 170,183 Ripon, Earl of v. Hobart 280 Rix V. Johnson 318 Robbing v. Boreman 2, 310 V. Milw. & Hor. R. R- Co. 106 Roberts v. Carr 141, 152 V. Read 209 Robertson v. The New York and Erie R. R. Co. 371 Robinson v. Cone 347 Rochester White Lead Co. v. The City of Rochester 221 Rochester and Syracuse R. E. Co. V. Budlong 133 Roe V. The Birkenhead, &c. R. R. Co. 371 Rogers v. Bradshaw 49 V. Brig Rival 447 V. Kennebeck R. R. Co. 110 V. Newburyport R. R. Co. 21 V. Milwaukee 187 Rood V. New York and Erie Railroad Co. 411 Rose; The 426, 428, 432, 440 Ross V. The City of Madison 221 Round V. Mumford 214 Rowan d. Portland 167 Rowe V. Granite Bridge Co. 93, 218 Eowell V. Lowell • 296 Rugby Charity v. Merry weath- er 29,133,136,145 Ruggles V. Lesure 305 Rumsey v. N. E. R. R. Co. 380 Rutherford v. McGowan 417 Ryan v. The Cumberland Val- ley R. R. Co. 402, 404 S. Sabin v. Vt. Central R. R. Co. 106, 221 Sadler w. Langham 87 Salisbury v. Great Northern Railway Co. 18 Sampson v. Smith 283, 284 V. Gooikland Justices 270 Sanford v. Augusta 287 V. Eighth Av. R. R. 376 TABLE OF CASES. XXXI San Francisco v. Scott Sangamon v. Brown Santa Glaus, The, Sarck v. Blackburn Savill V. Giddings Section 142 18 439 346 218 Sawyer v. Northfield 267, 271, 272, 286 Scales V. Pickering 7, 80 Sohaeffer's Koad, in re 83 Schenley v. Commonwealth 134 u. City of Alleghany 181 Schoolbred v. Charlestown 270 Schooner Catherine, The, 428 Schurmier v. St. Paul and P. R. R. Co. 91a Schutshardt v. Allen 290 Schuylkill v. Frailey 41 Scioto, The, 438, 447 Scones v. Merrill 313 Scott V. Shepherd 207 V. State 151 V. Wilson 55, 56, 66 Scovill V. City of Cleveland 183, 196 Scudder v. Woodbridge 403, 404 Seacombe v. Wood 445 Second Turnpike v. Taylor 359, 362 Selway v. Railway Co. 80 Seneca Road Co. v. Rochester Railroad Co. 243 Sergeant's Heirs v. State of In- diana 149 Sessions v. Newport 259 Seventeenth Street, Matter of, 149, 319 Seymour v. Carter 113 Shaftner v. St. Louis 122 Shanett's Road, Matter of, 120 Shannon, The 431 Sharp V. Gray 338, 387 V. Spier 173 Sharpless v. City of Philadel- phia 181 Shaw V. Crawford 66 Shearer v. Kissenger 367 Sheffield v. Oswego and Syra- cuse R. R. Co. 345 Shelton V. Derby 122 Shepardson v. Coleman 291 Shepherd v. Chelsea 296 Sherman v. Rochester and Sy- racuse Railroad Co. 401, 403 Sherwood v. Weston 271 Shuffield V. Rochester, &c. R. R. 290 Seci^on Shunk V. Schuylkill Navigation Co. 66,68,318 Sibbey v. Holden . 315 Sills V. Brown 345, 426 Simmons v. Cornell 155, 161, 163, 321 w.Mumford 138, 155,234 Simpson u. Hand 345,349,437,447 V. Lord Howden 80 Sinnickson v, Jackson 103, 215 Sixth Av. R. R. Co. V. Kerr 33, 91a. Skinner v. Anderson 11 V. Hartford Bridge Co. 106 V. Housatonic Railroad Co. 407,410 V. London,Brighton, and South Coast Railway Co. 407, 410 Skip V. Eastern Counties Rail- way Co. 400 Slack V. MaysvIIle, &c. Railroad Co. 187 Sleath V. Wilson 388 Slim V. Great N. Railway Co. 388 Smith V. Boston 283 V. Condy 443 V. City of Cincinnati 218 V. Dedham 287 V. Dygert 338 V. Gardner 334 V. Helmer 112 V. Lockwood 284 V. Seward 46, 417 V. Shepherd 359 V. Slocomb 316 V. Smith 290, 344, 345 V. The State 143 V. Wendell 261 Sneider v. Geiss 383 Snell V. Rich 443, 444 Snow V. Adams 260, 277 V. Housatonic R. R. Co. 290 V. The Eastern Railroad Co. 384 Snyder v. Rockport 214 Somerville and Eastern Rail- road Co. i;. Doughty 106 South Carolina Railroad Co. v. Jones 41 South Devon Railway case 125 South Shields Waterworks Co. V. Cookson 204 Sparhawk v. Salem 262 XXXll TABLE OF CASES. Section Spencer v. London and Bir- mingham Railway Co. 220, 283, 284 V. Utica and Schenec- tady R. R. Co. 396 Spivy V. Farmer 46, 417 Spooner v. McConnell 280, 283 Sprague v. Smith 379 V. Waite 147, 155 V. Worcester 106 Spring V. Russell 60, 67, 78 Springer v. Bowdoinham 289 Springfield v. Connecticut R. R. Co. 20,33,84,85,91a V. Gray 194 Sprowl V. Hemming way 442 St. John V. Mayor of New York 226 V. Paine, et al. 426, 428, 431,434,437 St. Louis and C. R. R. v. Dally 376 St. Louis, City of, v. Gurno 21 7, 218 Stacey v. Miller 144, 149 V. Nelson 80 Stackpole v. Healy 2, 303, 319 Stafford, Marquis of, v. Coyney 136, 140 Staffordshire and Worcester- shire Canal Co. v. Trent and Mersey Canal Co. 368 Stanton v. Springfield 267, 297 Starr v. Camden and Atlantic Railroad Co. 211, 243 State V. Bartlett 1^ V. Bell 275 V. Boscawen 41, 270 V. Calais 147 V. Galium 60 V. Canterbury 40, 41, 92, 275 V. Cardwell 143 V. Carver 161, 162 V. Catlin 162 V. Charleston 187 V. Clark 209, 210 V. Commissioners, The 278 V. Compton 144, 164, 270 V. Dawson 81, 211 V. Dean 184 V. Dover 278 V. Duncan 224 V. Fletcher 278 V. Franklin 270 V. Freeholders of Hud- son County, The 424 V. Fryeburg 264, 268 State V. V. V. V. V. V. V. V. V. V. V. V. V. Section 275 67, 318 410 131, 143 8, 310 276, 278 276, 278 143 255 184 217 274 271 278 8 21 143 Garnell Gilmanton Gilmore Gregg Hampton Harsh Hegeman Hill Hogg Hudson Inland Lock Nav. Co. Jersey City 184, 188, 414 King 272 Knapp Leawell Lemay Maine Manchester and Con^ cord R. K. Co. Marble Mayor, &c. of Jersey City 184 McMurrin 278 Milo 41 Mohawk and Danbury Turnpike Co., The 300 Morris and Essex R. R. Co. 240 Murfreesboro 258 Newark 184 New Boston 310 New Brunswick 184, 312 Newfane 276 N. J. Turnpike Co. 272, 278 New Market Noyes Nudd Patrick Pattou Pettis Reed Richmond Rivers Sartor Smith Strong Thomas Thompson 122 92 157, 161 423 271, 278 167 122 161 415 143 290 152 143, 151 375 Trask 140, 147, 153, 157, 167 Tupper 414 Vt. Central R. R. Co. 240 Wayne 271, 272 Wilkinson 24, 75, 135, 142, 236, 275 TABLE OF CASES. XXXIU Section State Lunatic Hospital v. Wor- cester 1 24 Steamboat Co. v. Whildin 431 Steamboat Farmville 428 Steamboat New World v. King 278 Steamboat R. B. Forbes 427 Steamboat United States v. The Mayor 445 Stedman v. Southbridge 131 Steele v. Prickett 813 Steinback v. Rae 446 Stetson V. Faxon 283, 285 Stevens v. Boxfbrd 290, 297a V. Dufts 359 V. Little Miami Eail- road Co. 403 V. Middlesex Canal 103, 218 V. Whistler 302, 313, 326 Steves V. Oswego and Syra- cuse R. B,. Co. 345 Stewart v. London, &c. R. R. 381 V. Rich 360 Stickney v. Salem 287a Stinson v. Gardiner 85, 287a Stoevei* V. Freeman 318 Stokes V. Saltonstall 342, 391 Stone V. Cartwright 300 V. Jackson 153 Stonnfeltz v. Turnpike Co. 9 Storrs V. City of Utica 221 Stourbridge Canal Co. v. Wheeling 368 Straiten v. N. T. and N. H. R. R. 379 Strange v. McCormick 402 Stratton v. Herrick 359 V. Hubbell 359 Street Railway v. Cummins- ville 91a Strout V. Foster 445 Stryker u. Kelly 177,197 Stuart V. Clarke 66 Sturtevant v. Plymouth 9 Stuyvesant v. Mayor of New York 216 V. Pearsall 33, 245 Styles V. Curtis 315 Summit, The 426 Sunbury and Erie R. R. Co. v. Hummel 109 Susquehanna Canal Co. v. Wright 60 Sussex V. Strader 40, 270 Section Sutcliff V. Greenwood 2, 79 Sutton V. Clarke 209, 210 Sutton's Heirs v. City of Louis- ville 187 Suydam v. Moore 21 Sweeny v. People 275, 279 Swift V. Newbury 290, 295 Symonds v. City of Cincinnati 114 Tallahassee, City of, v. Fortune 258 Talcott Mountain Turnpike Co. V. Marshall 359 Talmadge u. Rensselaer and Saratoga Rail- road Co. 398 V. Zanesville and Marysville Road Co. 272 Tarrant v. Webb 406 Tate V. Ohio and Miss. R. R. Co. 91a • Taylor u. Bailey 144,101 V. Boston Water Power Co. 273 V. County Commissioners 18 V. City of St. Louis 214 V. Plymouth 76 D.Porter 87,170 V. Whitehead 6, 254, 353 ^erry v. The New York Cen- tral R. R. Co. 391 Thatcher v. Dartmouth Bridge Co. 103 Thayer v. Boston 285 V. St. Louis, &c. R. R. Co. 387 Thicknesse v. Lancaster Canal Co. 125 Third Turnpike Co. v. Champ- 96, ney 358 Thirty-Second Street, Matter of 142, 149, 317 Thirty-Ninth Street, Matter of 142, 149, 317 Thomas v. Cornell 321 V. Hatch 318 V. Leland 177 V. Sorrell 224 Thompson v. Androscoggin Bridge 310 V. Bridgewater 291 XXXIV TABLE OF CASES. Section Thompson v. (Jrand Gulf Kail- road Co. 112 V. New York and Harlem Railroad Co. 95 Thurston v. Hancock 100, 206 Tinker v. Kussell 268 Tinnery v. Pappinger 387 Tippets V. Walker 310 Tisdale v. Norton 286, 290, 291, 293 Todd V. Old Colony R. R. Co. 290 V. Rowley 294 Toledo Bank v. Bond 81 Tolland v. Wellington 35, 40, 270 Tonawanda Railroad Co. v. Hunger 307, 346, 398 Tower v. The Providence and Worcester R. R. Co. 346, 398 Towles V. Justices, &c. 41 Towns, &c. V. Cheshire Rail- road Co. 398 Townsend v. Susquehanna R. R. Co. 270, 271, 272 V. Susquehanna Bridge Co. 299 Traveller, The 428 Treat v. Lord 57, 75 Trent v. Cartersville Bridge Co. 46 Trenton and Pliiladelphia R. R. Co., case of 243 Trenton Bridge v. Trenton City Bridge Co. 41, 96, 28? Tripp V. Frank 416 Trow V. Vt. Central R. R. Co. 398 Trowbridge v. Baker 360 Troy and Boston R. R. Co. v. Lee 104, 106 Truman v. Walgam 356 Trustees v. Otis 162 Trustees, &c. v. Auburn and Rochester R. R. Co. 83, 211, 243 Tuckahoe Canal Co. v. Rail- road Co. 92 Tucker v. Cheshire E. R. Co. 3q V. Eldred 304 u. Tower 310 Tuller V. Talbot 386 Turberville v. Stampe 205 Turley v. Thomas 329, 330, 345 Turnpike Co. p. Freeman 359 V. Hosmer 360 V. Newland 359 Turnpike Road v. Bi-osi 124 Tuttle V. Holyoke Tyler v. Hammond Section 297a 315, 317 u. Union, &c. R. R. Co. v. New York, &c. R. R. Co. 440 Union Burial Ground v. Robin- son 315, 317 Union Railway Co. v. Cam- bridge 414 United States v. Chicago 149 V. Harris 301, 311, 314, 326 V. Hart 225, 342 V. Minnesota R. R. Co. 81 V. Railroad Bridge Co. 81 V. The New Bed- ford Bridge 249, 251 Upton V. South Reading Branch R. R. Co. 116 V. Vale V. Hampden and Berk- shire Tump. Corp. 272 Valentine v. Boston 131, 147 V. Cleugh 435 Van Bergen v. Van Bergen 281 Van Home's Lessee v. Dor- rance 101, 111, 113 Vandegrift v. Rediker 398 Vanderker v. The Rensselaer and Saratoga R. R. Co. 21, 398 Vanderplank v. Miller 345, 347 Vantine v. The Lake 445 Varrick v. Smith 56, 60, 81, 84,87, 89, 311 Vaughan v. Menlove 205 Veazie v. Mayo 404 Vennall v. Gardner 426, 447 Vennor, ex parte 254, 305 Vermont Central R. R. Co. v. Baxter 18, 101 Verrill v. Minot 288, 296 Verona, The Brig, v. Clark 447 Vlck V. Vicksburg ]49 Vinal V. Dorchester 267, S97 Virgil, The, 440 T5A.BLE OF CASES. XXXV Section Vischer v. Hudson E. K. Co. 101 Volcano, The, 445 V-ooght V. Winch 822 w. W^aalan v. Mad River and Lake Erie R. R. 404 Wadsworth v. Smith 56, 68 V. Buffalo Hydraulic Association 81, 121 Wager v. Troy Union R. R. Co. 91a Wakeman J). Robinson 341 Waleott V. Swampscott 221 Waldron v. Rensselaer, &c. R. R. Co. 21, 388 Walker v. Bd. of Public Works 6 V. Boston and Maine R. R. Co. 101, 126 V. Cay wood 267 V. Shepardson 37 Wales V. Stetson 223 Wall Street, Matter of, 193 Wallace v. New York 266 Walla( e'i Appeal 83 Wallen v. McHenry 416 Warburton v. The London and Blackwall Railway Co. 20 Ward V. Armstrong 434 V. Chamberlain 432,433,447 V. Davis 134 V. A. Rossiter 431 V. The M. Dousman 431, 447 V. The Ogdensburgh 432 Wardens, The, v. Donne 209 Ware v. Gray 387 Waring v. Clark 71 Warner v. Prideux 356 V. South worth 316 Warren v. Jacksonville 142, 167 Washburn v. Tracy 331 Washington v. The Mayor, &c. of Nashville 185,189 Waterbury v. Clark 271 Waterhouse v. Keen 221, 359 Waterloo v. Auburn and Roch- ester R. R. Co. 91 a Watertown v. Cowen 149, 168 Watervliet Turnpike Co. v. Aiken 358 Watrous v. Southworth 313 Waugh V. Leech 149 Section Wayde v. Carr 328, 329 Wayne County Turnpike Co. v. Berry 271 Webb V. Manchester and Leeds Railway Co. 80, 81 Webber v. Eastern Railroad Co. 314, 315 Weed V. Saratoga and Schen- ectady Railroad Co. 378 Weeks v. Shirley 287 Weld V. Hornby 322 Wells U.Howell 309 Welsh V. Lawrence 344 Wendell v. Mayor, &c. of New Cork 226 West V. Brookport 221 V. Bancroft 312 West River Bridge Co. v. Dix 82, 86, 92 Wethered v. Bray 224 Wetmore v. Campbell 197, 214, 225 V. Story 33, 245 V. Tracy 274 Wheeler v. Rochester and Sy- racuse Railroad Co. 103, 104 Wheeler v. Worcester 221 V. Eastern State 429 Wheelock v. Pratt 81 Whipple w. Walpole 270 Whitbeck v. Cook 301 White V. Hanigan 317 V. Railroad Co. 106 0. Scott 317 V. Yazoo 216 White River Turnpike Co. v. Vt. Central R. R. Co. 92, 96 Whitmore v. Steamboat Caro- line 381 Whitney v. Mayor of New York 103 Whitsell V. Crane 380, 383 Whittridge v. Dill 434 Wiggett V. Fox 406 Wiggins V. Boddington 285 V. Mayor of New York 105,124 V. Tallmadge 31 Wigmore v. Jay 399 Wilbrand v. Eighth Av. R. R. Co. 340 Wilds V. Hudson River R. R. Co. 345 Wilkes V. The Hungerford Mar- ket 228, 285 Wilkinson v. Bagshaw 79 XXXVl TABLE OF CASHS. Section Wilkinson v. Leiand 85 Willard v. Cambridge 286, 287a V. Newbury 18, 267 Willetts V. The Buffalo and Rochester R. R. Co. 393 Willey V. Portsmouth 262 Williams t). Beardsley 61 V. Commack 186, 191 V. First Presbyterian Society of Cincin- nati 134, 135 V. Great Western Rail- way Co. 374, 381 V. Holland 345 V. Madison and Indian- apolis R. R. Co. 388 V. Michigan Central Railroad Co. 398 i;. Natural Bridge Co. 91a V. New Albany Kail- road Co. 398 0. New York Central R. R. Co. 9, 33, 84, 234, 243, 245 V. Safford 6, 353 V. Sawyer 359 V. Smith 360 Williams and Anthony Streets, Matter of, 107, 190, 194,200,201 Williamson v. Barrett 443 V. East Amwell 116 Willoughby v. Jencks 304, 313 Willyard v. Hamilton 102 Wilson V. Blackford Creek Marsh Co. 53, 82, 249 V. Charleston 293 V. Forbes 69, 318 V. Jefferson 270 V. Mayor, &c. of New York 217, 221 V. Rochester and Syra- cuse R. R. Co. 396 V. Susquehanna Turnpike Co. 299 V. Wilson 304 Winona and St. Peter's R. R. Co. V. Denman 106 Winn V. Lowell 299 Winshipt). Enfield 261, 290, 296, 344 SecMon Witter u. Harvey 313,314 Woburn, First Parish of, v. Co. Comrs. 109 Wolf u. Beard 341, 345 Wood V. Kelly 318 V. Hears 226 V. Quincy 75, 168, 324 V. Waterville 290, 294 V. Veal ■ 31, 134, 136 Woodbridge v. Detroit 187 Woodman v. Mifflin 1 24 Woodring v. Forks Township 303 Woodruff u. Neal 303 Woodrup Sims, The 42S, 446,447 Woodstock V. Gallup 85 Woodyer v. Hadden 27, 29, 30, 136, 142, 146 Woolley V. Scobell 345 Worcester v. Essex Merrimack Bridge 290 V. Western Railroad Co. 310 Wordsworth v. Willan 332 Works V. Junction R. R. 235 Wright V. Maiden R. R. 342, 351 V. Caldwell 383 u. Tukey 134, 142, 162 Wyatt V. Harrison 206 Wyman v. Lexington and West Camb. R. R. Co. 18, 101 V. Mayor of New York 24, 149, 314 V. State 143, 151, 162 Wynn v. AUard 349 Yates V. Brown 443 Yeisser v. Railroad Co. 106 Young V. 6, 353 V. Harrison 81, 166 V. Yarmouth 262, 267 Z. Zane v. Zane 48 TREATISE ON THE LAW OF HIGHWAYS CHAPTER I. MEANING OF HIGHWAYS. DIFFERENT KINDS OF, AND DISTINC- TIVE QUALITIES OF EACH. 1. Wat. 8. Bridges. 2. Highways. 9. Ferries. 3. Turnpike Roads. 10. Canals. 4. Plank Roads. U. Navigable Rivers. 5. Railroads. 12. Tow-Paths on Navigable 6. Street and Cul-db -Sac. Rivers. 7. Railways in Streets. 1. Way. § 1. The word " way " is derived from the Saxon, and means a right of use for passengers.^ It may be private or public. The title of this work imposes but little obligation to offer much as to private ways ; no more than enough to render the distinction be- tween private and public ways clearly understood. By the term " right of way," is generally meant a private way, which is an incorporeal hereditament of ' Sax. waeg, weigh. Dut. vig. or wig, M. Goth. See Whart. Law Lex. tit. "Way." 2 LAW OF HIGHWAYS. [CHAP. I- that class of easements,^ in which a particular person, or particular description of persons, have an interest and a right, though another person is the owner of the fee of the land, in which it is claimed. An indi- vidual may claim a right of way by an express grant, or by long user [prescription), also by necessity, origi- nating thus : If a man grant a piece of ground in the middle of his field, he, at the same time, tacitly and impliedly, gives a way to go to it and from it. So the inhabitants of the village of A, or the owners or occupiers of the village of B, may have a pre- scriptive right of going over another indvidual's land. If it be a right of way in gross, or a mere personal right, it cannot be assigned to any other person, nor transmitted by descent, it dying with the person ; and it is so exclusively personal, that the owner of the right cannot take another in company with him. But when a right of way is appendant or annexed to an estate, it may pass by assignment when the land is sold, to which it was appurtenant.^ 1 2 Bla. Comm. 35 ; 3 Kent, Comm. 419 ; Woolrych on Ways, 2. Easement is from the French word aise, and is defined to be a privilege or convenience (see the above authorities) which one neighbor has of another, as a righi ofvmy, a right to bring water through another's land, &c. Easements are treated of by the civilians, under the name of services^ some of which they call real, and some personal ; the former being a ser- vice which one estate owes to another, for the advantage and convenience of the owner of another estate. But by a personal service, is understood such as has not been constituted for the benefit of the estate, but which has been created for the use of the person merely ; and differs from an easement which is imposed on corporeal property only. The service of a private right of way (iter), belongs to the most familiar and important class of private easements. Ayl. Civil Law, tit. 5, of Services ; 1 Bla. Comm. 20 ; Domat, Civil Law [1 tit. 12] ; 1 Kauf. Mack. 339. ^ See the authorities above referred to, and Pierce v. Selleck, 18 Conn. 39 ; McDonald v. Lindell, 3 Rawle, 492. CHAP. I.] HIGHWAYS. 3 If a right of way be from close A to close B, and both closes be united in the same person, the right of way, by grant or prescription, as well as other subordinate rights, is extinguished by unity of pos- session} 2. Highways. § 2. Highways are public roads, which every citi- zen has a right to use.^ One of the proper and im- portant aims of civil policy has been the establish- ment of towns, market-places, and cities, and a con- nection with each other by thoroughfares, in order that a mutual intercourse may be promoted and kept up between them.^ In the statute law of the State of New York, the word " road " is used synony- mously with highway,* in which all obstructions, not warranted, may be removed by any individual. We perceive, then, the striking distinction between a private right of way and one that is public and com- mon; the former belonging only to the particular parties by whom it has been acquired, while the lat- ter is for the free use of every member of the com- munity. § 3. Highways are of various kinds, according to the state of civilization and wealth of the country ' 3 Kent, Coram. 420. ' * 3 Kent, Comm. 32; SutclifFe v. Greenwood, 8 Price, 535 ; Hex v. Camberworth, 3 B. & Adol. 108 ; and for other English authorities, see Shelford on Highways, and Woolrych on Ways; and see American authorities, — Makepeace v. Worthen, 1 N. H. 16 ; Peck v. Smith, 1 • Conn. 103 ; Robins v. Borman, 1 Pick. 122 ; Jackson v. Hathaway, 15 Johns. 447 ; Stackpole v. Healy, 16 Mass. 33, and many cases therein cited ; Cool v. Crommet, 1 Shep. 250. ' 2 Domat, 280. * Powler V. Lansing, 9 Johns. 349 ; Griffin v. Martins, 7 Barb. 297. 6 LAW OF HIGHWAYS. [CHAP. I. subjects may justify going upon the corn.' And. in one case it was held, that where a man encloseth, and doth not make a good way (as in such a case he is bound to do by reason of the enclosure), it is lawful for passengers to make gaps in his hedges to avoid the ill way ; so that they do not go farther into his enclosed grounds, than is needful for avoid- ing the bad way. This, it may be observed, was the case of a footpath.^ § 6. But this privilege of going over the adjoining land, if the way be impassable or founderous is con- fined to highways ; and the grantee of a private way cannot take advantage of any such liberty. This was decided by the case of Taylor v. Whitehead.* And that decision is confirmed by the later case of Bullard v. Harrison,* in which the locus in quo was a private way; and it was endeavored, but Avithout success, to establish this right of traversing the ad- joining land, upon the plea of necessity. Lord Ellen- borough, in delivering the judgment of the Court, said : The question intended to be agitated upon this record is, whether, in the case of a private way, the grantee may break out and go extra viam, if it be impassable, as in the case of a public way. As to that I consider Taylor v. Whitehead * has settled the ' 1 Hawk. P. C. c. 76, § 2. ' Henn's case, Sir W. Jones, 296. See also Absor v. Frenoh, 2 Show. 28, pi. 19 ; 2 Lev. 234, S. C. ; and Young v. , 1 Ld. Kaym. 725. It seems the right does not accrue where the highway is not immemorial, nor where the adjoining land has not, before the enclosure, been used for passage. Regina v. Ramsden, 1 Ellis, B. & E. 949. ' Doug. 745. * 4 M. & S. 387. ' Taylor v. Whitehead, Doug. 745 ; and see Pomfret v. Eycroft, Saun- ders, 323, note b ; Williams v. Safford, 7 Barb. 309 ; Holmes v. Seeley, 19 Wend. 518. CHAP. I.] TURNPIKE EOABS. 7 distinction, that the right of going on the adjoining land extends not to private as well as to public ways. § 7. Again, public highways, in reference to posi- tion or locality, may be called urban, suburban, and rural, although the same principles of law apjDly to each. Where a private act of Parliament empow- ered a water company to "break up the soil and pavement of roads, highways, footways, &c., and ' public places,' " it was held, that the word " foot- way," as there used, meant those footways in large towns which are too narrow to admit of carriages and horses, and not a path over a private ground. " Looking," says Burrough, J., at the general purview of the act, and the context, it is clear that the word footway means one of those paved ways running by adjacent buildings, and not a path over a private ground." ■■■ 3. Turnpike, Roads. § 8. A distinct class of highways has been created under the appellation of turnpike roads, which are, in general, constructed by incorporated companies with provisions in the act of incorporation for their management. And the legislature has power to au- thorize a turnpike company to lay out their road upon a common public highway.^ The same dili- ' Scales V. Pickering, 4 Bing. 448. 2 State V. Hampton, 2 N. H. 22. The easement enjoyed by the pub- lic in a turnpike road is vested in the public as much as that of a common highway, and the resumption of the franchise leaves the easement of the public in the road, disburdened of tolls, but otherwise unaffected. State V. Maine, 27 Conn. 641. 8 LAW OF HIGHWAYS. [CHAP. I. gence, it may be stated, is required of turnpike com- panies, which is demanded by towns, to insure safety to travellers, upon other highways, and they, as well as towns, are primarily liable to the traveller/ And if the corporate franchise of a turnpike company ex- tends to the building of toll-houses within the corpo- rate limits, they would be forfeited, if turned to uses foreign to the original purpose.^ § 9. A turnpike road is distinguishable from high- ways in general, by the manner in which the ex- pense attending the construction and maintenance of it is defrayed, viz. by tolls collected from the pas- sengers? The principal question in Commonwealth V. Wilkinson, in the Supreme Court of Massachu- setts,* was whether a turnpike road, in that State, was a highway, and whether an action would lie against any person for an obstruction thereon as a public nuisance ; and, by Shaw, C. J. : " We think, that a turnpike road is a public highway, established by public authority for public use, and is to be re- garded as a public easement. The only difference between this and a common highway is, that instead of being made at the public expense in the first in- stance, it is authorized and laid out by public au- thority, and made at the expense of individuals in the first instance, and the cost of construction and maintenance, is reimbursed by a toll, levied by pub- lic authority, for the purpose. Every traveller has ' Mathews v. Winooski Turnpike Co. 24 Vt. 480. ' Fisher v. Coyle, 3 Watts, 407. ' 3^ Stephens, Comm. 259 ; Northern Bridge and Eoad Co. v. London and Southampton Railway Co. 6 M. & Welsh. 428. ' Commonwealth v. Wilkinson, 16 Pick. 175. CHAP. I.] TURNPIKE EOADS. 9 the same right to use it, paying the toll established by law, as he would have to use any other public highway." ^ § 10. The penalty of the payment of a sum of money, imposed by statute upon any person who shall " forcibly or fraudulently pass any gate on any turnpike or plank road, without having paid the legal toll, is not incurred by an individual who merely passes through a gate with his team, and offers a bank-bill in payment of the toll, and refuses to pay in any other way." To make the passage fraudulent, some artifice must be employed, or some deception practised on the toll-gatherer.^ In the absence of a toll-gatherer, his wife will be deemed to be his agent, for the purpose of demanding and re- ceiving toU.^ f ' And see Buncombe Turnp. Co. v. Baxter, 10 Ired. 222. And see Clarkville, &c. Turnp. Co. v. Atkinson, 1 Sneed, 426 ; Louisville and Nashville Turnp. Co. v. Nashville and Kentucky Turnp. Co. 2 Swan, 282 ; Turnp. Road v. Brosi, 10 Harris, 29 ; Sturtevant v. County of Plym- outh, 12 Met. 7; Stormfeltz v. Turnp. Co. 1 Harris, 555; and see 2 Ibid. 152. Under the provisions of the charter of a turnpike company, which gives the right to recover damages for an injury occasioned by the insufficiency only to those from whom toll is demand able, the person in- jured may sustain an action, if toll were demanded of him at any gate upon the road, although he was not, at the time of the injury, passing, or intending to pass, through or near any gate. Brown v. Winooski Turnp. Co. 23 Vt. 104 ; 22 Ibid. 14. Where a turnpike company have established its toll-gates within the distance authorized by law, and have fixed the rates of toll at the several gates, so as not to exceed the legal rates of toll for the entire distance, and for the distance between the several gates, they may lawfully exact the full toll at a particular gate ; though the traveller may not have travelled upon the road a distance which, at the legal rate per mile, would amount to such toll. Mallory v. Austin, 7 Barb. 626. ° Monterey and Plank-road Co. v. Faulkner, 212. ^ Marselis v. Seaman, 21 Barb. 319. 10 LAW OF HIGHWATS. [cHAP. I. § 11. As to exemption from tolls. Under tlie Act of the State of New York of 1849, in relation to turnpike roads, all persons travelling over a turn- pike road in going to a religious society of any sect, creed or denomination, having for their professed object the worship of God, and which are tolerated by the Constitution of that State, whether such per- sons go for the pure purpose of conducting, or of uniting in the exercises of devotion, are equally ex- empt from the payment of toll. And persons thus exempt from the payment of toll, may, if compelled to pay it, maintain an action against the toll-gath- erer for the penalty imposed by the statute for de- manding and receiving more toll than by law he is authorized to collect.-'- § 12. Erecting a toll-hoard, with rates of toll, writ- ten chiefly in the small Roman letter, though but of a size to be legible at a distance of three roods, is a compliance with the statute requiring them to be in " large capital letters." ^ § 13. It is not a ground of forfeiture of the char- ter of a company, that they do not, in all cases, charge the full tolls authorized by the charter ; and, unless forbidden by the charter, they may commute tolls for an annual sum.^ • ' Skinner v. Anderson, 12 Barb. 648. Conkling v. Elting, 2 Johns. 410; and Norvall v. Cornell, 16 Ibid. 73, were decided under tlie pro- visions of the Act of 1813, -which differed essentially in its terms. And see Chetney v. Coon, 8 Johns. 150. " Nichols V. Bertram, 3 Pick. 342, ^ Commonwealth v. Alleghany Bridge Co., 8 Harris, 185; and so of a canal company, Delaware and Hudson Canal Co. v. Pennsylvania Canal Co. 9 Harris, 131. , CHAP. I.] PLANK ROADS. 11 4. Plank Boads. I 14. What are called plank roads (the name of which indicates the material used in their construc- tion), now extensively used in different portions of the United States, are public highways when estab- lished by law. They are established, like common turnpike roads, and like them public, in the sense that every citizen has the right to travel on them, either on foot, on horseback, in his carriage, or with his team, subject to the payment of legal toUs.-^ § 15. A common public highway, taken by a plank road corporation, by virtue of the statute and of its act of incorporation, in New York, does not cease to be a public highway ; and on a compliance with the requisitions of the law, the corporation succeeds to the rights of the town commissioners to make the repairs and alterations of grade which the public in- terest requires ; and a person suffering damage from reasonable and proper repairs and grading, so made, cannot recover in an action therefor ; although for any unreasonable use of its powers the corporation is responsible.^ § 16. In the State of New York, the inhabitants »• Fort Edward and Fort Miller Plank-road Co. v. Payne, 17 Barb. 567; Eensaeller v. Plank-road Co. 21 Barb. 56; Plank-road Co. v. Husted, 3 W. & Smith, Ohio, 697; Benedict v. Goit, 3 Barb. 459; Commissioners of Highways (matter of), 15 Barb. 136; McAllister v. Albion Plank-road Co. 11 Barb. 610 ; 1 Kern, 102; Plank-road Co. v. Thomas, 8 Harris, 91 : Same v. Ramage, lb. 95 ; Same v. Rineman, lb. 99 ; Mallory v. Austin, 7 Barb. 626. See "Practical Compend of the Powers and Duties of the Commissioners and Overseers of Highways, in the State of New York,'' Auburn, 1851, 19-54 ; and " General Railroad Law of the State of New York," in reference to the crossing by a railroad' over a plank road, p. 93, Rochester, 1853. " Benedict v. Goit, 3 Barb. 459. 12 LAW OP HIGHWAYS. [CHAP. I. residing in any road district, may grade, gravel, or 2olanh the road in such district, by anticipating the highway labor of such road district, for one or more years, and by applying it to the immediate construc- tion of such plank or gravel road ; and they will thereupon be exempt from the labor so anticipated and applied, except so far as their labor may be ne- cessary* to keep such road in repair. Any road so constructed or improved, will be a free road.^ 5. Railroads. § 17. Eailroads are distinguishable into two classes. 1st, railroads at common law ; 2dly, railroads con- structed under the authority of the legislature. The former species of railroad again subdivides itself into two, viz. : 1, a simple rail or tramway, made by the owner of property on his own land for its more con- venient use and occupation, or by several owners of co-terminous property, in pursuance of some mutual arrangement for that purpose between themselves ; and 2, a tram or railway constructed under a way leave, or grant, or right of way.^ § 18. A railroad established and existing under an act or charter of incorporation, like a turnpike or a plank road, is a public highway ; but only to be used in a different mode.^ In Beekman v. Saratoga and • Laws of New York of 1849, chap. 250. " Keppel u. Bailey, 1 My. & Keen, 547 ; Hemmingway v. Fernanden, 21 English Law Journ. Chan. 130 ; and S. C. 13 Sim. 228 ; and see Wal- ford on Railways, 1. " Per Holroyd, J., in Rex v. Severn and "Wye Railway Co. 2 B. & Aid. 646 ; and see Waif on Railways, 151, 152. A railroad which le- gally forfeits its charter, remains what it was, a public highway. The corporation loses its franchise, which passes to the State. Erie & N. E. Railroad v. Casey, 26 Penn. State, 287. CHAP. I.] EAILROADS. 13 Schenectady Railroad Company,^ Chancellor "Wal- worth thus expresses himself: "It is objected, how- ever, that a railroad differs from other public im- provements, and particularly from turnpikes and canals, because travellers cannot use it with their own carriages, and farmers cannot transport their produce in their own vehicles ; that the company are imder no obligation to accommodate the public with transportation, and that they are unlimited in the, amount of tolls which they are authorized to take. If the making of a railroad will enable the traveller to go from one place to another, without the expense of a carriage and horses, he derives a greater benefit from the improvement than if he was compelled to travel with his own conveyance over a turnpike road at the same expense. And if a mode of conveyance has been discovered by which the farmer can procure his produce to be transported to market at half the expense which it would cost him to carry it there with his own wagon and horses, there is no reason why the public should not enjoy the benefit of the discovery. And, if any individual is so unreasonable as to refuse to have the railroad made through his land, for a fair compensation, the legislature may lawfully appropriate a portion of his property, or may authorize an individual or a corpo- ration thus to appropriate it, upon paying a just compensation to the owner of the land, for the dam- age sustained." ^ • Beekman v. S. & S. Kailroad Co. 3 Paige, 74. ' And see Inhabitants of Springfield v. Connecticut River Railroad Co. 4 Cush. 572. The following are Ameriean cases of interest in relation to Railroads : March v. Ports. & Concord Railroad, 19 N. H. 372 ; Taylor v. County Commissioners, 13 Met. 449 ; Porter v. Same, Ibid. 479 ; 14 LAW OF HIGHWAYS. [CHAP. I. § 19. In one case ^ a railroad was made under au- thority of Act of Parliament, by which the proprie- tors were incorporated, and by which it was provided that the public should have the beneficial enjoyment of the same. The company having determined to render one branch of the railroad impassable, caused the iron tram-plates, for the space of several hun- dred yards, to be taken up, and thereby destroyed that branch. An application was thereupon made to the proper Court for a mandamus to compel the company to reinstate the railroad. Holroyd, J., said : " It is a public highway, to be used in a particular mode." And all the Judges agreed, that for the offence complained of, the company had rendered themselves liable to an indictment. But because that remedy was not so effectual, as the one by man- damus, and as the Court were of opinion, that the circumstance of the corporation being liable to an indictment, was no objection to the granting of a mandavnus, the rule to that effect was made abso- Wyman v. Lexington and West Cambridge Railroad Co. Ibid. 316 ; Brad- ley t;. Boston and Maine Railroad Co. 2 Cush. 539 ; Same v. Same, 3 Cush. '91 ; Pennsylvania Railroad, 10 Harris, 356; Hudson River Rail- road Co. V. Cutwater, 3 Sand, 689 ; Northern Railroad Co. 7 Post. 183 ; Mason v. Kennebec and Portland Railroad Co. 1 Red. 215 ; Hasvpell v. Vermont Central Railroad Co. 23 Vt. 228 ; Field v. Vermont and Mas- sachusetts Railroad Co. 4 Cush. 150 ; Meacham v. Fitchburg Railroad Co. 4 Cush. 291, and lb. 440 and 467 ; Polly v. Saratoga and Washington Railroad Co. 9 Barb. 449 ; Hamilton v. Annapolis, &c. Railroad Co. 1 Md. Ch. 107 ; Metherell, Ex parte, Eng. Law & Eq. 139 ; Salisbury v. Great Northern Railroad Co. 10 Eng. Law & Eq. 8 ; Powvey u. Calais Railroad Co. 17 Shep. 498 ; Vermont Central Railroad Co. v. Baxter, 22 Vt. 365 ; Willard u. Newbury, 27 Vt. 458; Hart v. Western Railroad Corp. 13 Met. 99. And see the " General Railroad Laws of the State of New York, with Notes and References," by William S. Bishop, Rochester, N. Y. 1853. ' Rex V. Severn and Wye Railway Co. 613. CHAP. I.] RAILROADS. 15 lute. And Abbott, C. J., said : " The writ should be to reinstate and lay down again, but not to maintain the tram-road." ■'■ § 20. Although an act of the legislature which au- thorizes the construction of a railroad between cer- tain termini without prescribing its precise course and direction, does not, prima facie, confer power to lay out the road on and along an existing highway ; yet it is competent to the legislature to grant such authority even by implication ; and such implication may result either from the language of the act, or from its being shown, by an application of the act to the subject-matter, that the railroad cannot, by rea- sonable intendment, be laid in any other line.^ Take, for example, the familiar case of the Notch in the White Mountains, a very narrow gorge, which af- fords the only practicable passage, for many miles, through that mountain range. A turnpike road through it has already been granted. Suppose the gorge not wide enough to accommodate another road, but the legislature of New Hampshire, in order to accommodate a great line of public travel, should grant power to lay a railroad on that line ; they would, by necessary implication, grant a power to take some portion of the road-bed of the turnpike.^ The case referred to was a bill in equity, brought to enjoin a railroad company from maintaining a rail- road, and running cars thereon, upon and over a public highway in Springfield, Massachusetts, on the I A , K. 646; People v. Albany &c. Railroad Co. 24 N. Y. (10 Smith), 261. ^ Springfield v. Connecticut Railroad Co. 4 Cush. 63. ' Ibid. Per Shaw, C. J. As to the right of appropriating a corporate franchise, for the public benefit, s^e,post, Chap. II. 16 LAW OF HIGHWAYS. [CHAP. 1. ground, tliat such maintenance of the railroad was unauthorized, and constituted a nuisance. § 21. In the absence of any action of the legisla- ture, a railroad company is under ' no obligation to enclose their road against the entrance upon it of cattle from the adjacent grounds, so that the com- pany is not answerable, without gross negligence, in running an engine upon, and killing cattle, which escape from the owner's enclosure and stray upon the track.'^ But in the charters to some companies of this kind, it is made obligatory to fence in the line of their road against the inroad of cattle, and then, if the railroad company do not observe the directions of the act, the company is chargeable in such case, and responsible for injury. The general railroad act of the State of New York, contains the following : "Every corporation formed under this act, shall erect and maintain fences on the sides of their road, of the height and strength of a division fence re- quired by law, with openings, or gates, or bars there- in, and farm-crossings of the road for the use of the proprietors of lands adjoining such railroad; and also construct and maintain cattle-guards at all road- crossings, suitable and sufficient to prevent cattle and animals from getting on to the railroad. Until such fences and cattle-guards shall be duly made, the corporation and its agents shall be liable for all damages which shall be done by their agents or en- gines, to cattle, horses, or other animals thereon; ' The cattle are to be regarded as trespassers, and the law charfes their owners with negligence. Hunger i;. Tonawanda Railroad Co. 5 Denio, 255 ; and 4 Comst. 349 ; Waldron v. Rensellaer Railroad Co. 8 Barb. 390 ; Clark v. Syracuse and Utica Railroad Co. 11 Barb. 112. CHAP. I.] EAILKOADS. 17 and after such fences and guards shall be duly made and maintained, the corporation shall not be liable for any such damages, unless negligently or wilfully done ; and if any person shall ride, lead, or drive any horse or other animal upon such road, and within such fences and guards, other than at farm-crossings, without the consent of the corporation, he shall for every such offence forfeit a sum not exceeding ten dollars, and shall also pay all damages which shall be sustained thereby to the party aggrieved. It shall not be lawful for any person, other than those connected with or employed upon the railroad, to walk along the track or tracks of any railroad, ex- cept where the same shall be laid along public roads or streets." Since the above enactment, it has been decided in Suydam v. Moore,^ that if a railroad com- pany neglects to erect fences on the sides of the rail- road, and construct and maintain cattle-guards at road-crossings, as required by the above statute, and a cow comes upon the track, and is run over by the engine, and killed, the company is liable to the owner of the cow ; for although the accident in this case appears by the evidence to have been clearly, if not quite inevitable, yet no man can shelter him- self from responsibility for an act brought upon him by his own violation of duty.'^ Had the fences been erected and the cattle-guards constructed, as by stat- ' Suydam v. Moore, 8 Barb. 358 ; Rogers u. Newburjport Railroad Co. 1 Allen, 16. ° Rears v. Newburyport Railroad Co. 1 Allen, 1 6. Railroad com- panies owning railroads that are public highways are bound to make such landings or places of access to their roads as are necessary for the public accommodation, and to keep them in suitable and safe state. March i>. Concord Railroad, 9 Foster, 9. 2 18 LAW OP HIGHWAYS. [CHAP. I. ute required, the injury to the plaintiff's property would not have been occasioned. The legislative action above does not apply to streets in cities and villages, in which cattle-guards would be a nuisance.-^ § 22. A railroad company, by giving permission to another railroad company to use a part of their ti'ack, do not bind themselves to make their track safe, nor to put it in repair, nor to make any change in its existing state.^ And if a company construct a railroad for its own profit, and open it to the public \ipon payment of tolls, all who choose to use it may do so, without danger to lives or property.^ § 23. Under the Eevised Statutes of Massachu- setts, providing that every railroad corporation may rsiise or lower any turnpike or way for the purpose of having their railroad pass over or under the same, a railroad corporation may raise a turnpike road for the purpose of constructing the railroad across it iipon the same levels But in case of laying out a turnpike road or highway over an existing railroad, under the statute which provides that in such case the highway may be so made as to pass under or over, and shall in all cases be so made as not to ob- struct or injure such railroad, it is held that the con- struction given above is not the natural one, and that there is uothing in subject-matter to require a construction different from the natural one; and the laying out of a highway across an existing rail- ' Vandekar v. Eensellaer and Saratoga Railroad. Co. 13 Barb". 390; and see New York and Erie Railroad Co. 1 Am. Law Reg. 97. " Murch V. Concord Railroad Co. 9 Foster, 9 ; Fletcher v. B. & M. Railroad, 1 Allen, 9. ' Lancaster Canal Navigation Co. v. Parmely, 5 Adol. & Ell. 223. * Newburyport Turnpike Co. v. Eastern Railroad Co. 23 Pick. 326. CHAP. I.] STREET AND CUL-DE-SAC. 19 road so as to cross at the same level is void for want of authority.-^ 6. Street and Cul-de-Sac. § 24. The word " highway " is considered as the genus of all public ways/ so that a common street in any city or town, being common to all people, is a public highway.* Exceptions were taken in a case in the Supreme Court of Pennsylvania, which related to an act of the legislature respecting roads, and to the proceedings under it, that an application was not for a highway, but for a street. But Judge Gib- son, in giving the opinion of the Court, said : " In common parlance, the word ' street ' is equivalent to ' highway,' and the very words of the act need not be pursued ; a substantial compliance with its pro- visions is all that is required. Few records of pro- ceedings of this nature would stand the test of a construction so severe as that contended for." * § 25. A correct distinction has been suggested be- tween a highway in the country, and a street in a populous commercial city; and it has been con- sidered, that the restricted use of highways in the country has been, that they have been needed for no other purposes j but such is not the case with the streets of a city. There are certain uses to which, ' Boston and Maine Railroad v. Mayor, &c. of Lawrence, 2 Allen, 107. i> Per Holt, Ch. J., in Regina v. SaintifF, 6 Mod. 255. = State V. Wilkinson, 2 Vt. 480 ; Benedict v. Goit, 3 Barb. 459 ; Ad- ams V. Rivers, 11 Barb. 399 ; City of Cincinnati v. White, 8 Peters, 431 ; Livingston v. Mayor of New York, 8 Wend. 85 ; Wyman v. Same, 1 1 Ibid. 486. * Case of the Road from Fitzwater Street to Shippen Street, in Moya. mensing, 4 S. & Rawle, 106 ; and see Hobbs v. Lowell, 19 Pick. 405. 20 LAW OF HIGHWAYS. [CHAP. I. in modern times, the latter have generally been ap- plied, — uses not merely conducive to, but almost necessary for, the comfort, health, and prosperity of the public ; and they have been both sanctioned by custom and approved by experience.^ It may be taken for granted, that one of certain uses here re- ferred to is the use of water pipes beneath the sur- face of a street. A water company, having observed the directions of the act of the legislature in laying down their pipes, is not responsible for an escape of water from them, not caused by their own neg- ligence.^ § 26. Streets in a city sometimes have their origi- nal termination at a river or an arm of the sea. It has been held, that where an act of the legislature authorized a proprietor of lands lying on the East Eiver, upon which the city of New York is bounded, which is an arm of the sea, to construct wharves and bulkheads in the river, in front of his land, and there was, at that time, a public highway through said land, terminating at the river ; such proprietor could not, by filling up the land between the shore and the bulkhead, obstruct the public right of passage from the land to the water ; but that the street was, by operation of law, extended from the former ter- minus, over the newly made land, to the water. The design of the act was to confer privileges on the owners of land adjoining the East Eiver, but not to destroy the right of the public to reach its waters through Warren, or any other street, which then led ' Per Edwards, J., in Milhau v. Sharp, 15 Barb. 210. Blyth V. Birmingham Water Works Co. 4 Exch. (Hurlston & Gord.) 781 CHAP. I.] STREET AND CUL-DE-SAC. 21 to its shore ; nor should the act be so construed as to work a public mischief, unless required by words of the most explicit and unequivocal import.^ By the extension of a straight street is to be understood its continuance in a straight line.^ § 27. It has in England been a matter of consid- erable discussion by the judicial tribunals, whether a passage-way, leading from a street in a town or city, and which is entirely obstructed by buildings at its extreme end, so that there is no communication with any thoroughfare beyond it, is a public highway. Such a passage is termed a Cul-de-Sac, a French phrase, signifying literally the bottom of a hag, and, figuratively, a street not open at both ends.^ It was expressly decided by Lord Ellenborough, in a case at ' People V. Lambier, 5 Denio, 9. ' " Charlotte Street, 11 Harris, 28G ; Cole v. Canaan, 9 Foster, 88. ' 2 Bouv. Law Diet. 357 ; Woodyer v. Hadden, 5 Taunt. 125. Cul- de-Sac : " A blind alley," Spier's Diet. Lord Hale, in Austin's case (1 Ventr. 189), observed: " If a way lead to a market, and were a way for all travellers, and did communicate with a great road, it is an highway ; but if it lead only to a church, to a private house or village, or to fields, there 'tis a private way. But it is matter of fact, and much depends upon common reputation." The observations of the same learned Judge in Thrower's case (1 Vcntr. 208) are more clear upon this point. The defendant in that case was indicted for stopping communem viam perlextrem ad ecclesiam. It was objected, that an indictment could not lie for a church-path ; besides, the damage, it was said, is private, and concerns only the parishioners. Hale said : " If this were alleged to be communis via pedestris ad ecclesiam pro parocMansis, the indictment would not be good ; for then the nuisance would extend no farther than the parishion- ers, for which they have their particular suits ; but, for aught that ap- pears, this is a common footway, and the church is only the terminus ad quern, and it may letbd farther, the church being expressed only to ascer- tain it ; it is laid ad commune nocumentum." The reason here given is, that the way in question was a common footpath, which miglit lead farther ; that is, that it must be presumed to be a thoroughfare, and therefore a highway. See Wellbeloved on the Law of Highways, 7. 22 LAW OF HIGHWAYS. [CHAP. I. Nisi Prius/ that any way which is open to the pub- lic to pass through it, or, in other words, a thorough- fare^ is a highway. In this case, an indictment was brought for obstructing a passage which led from part of a street (circuitous route) to another point in the same street, and which had been open to the public as far back as could be remembered; and though it could, in general, be of no use to those walking up and down the street, being a most indi- rect route, which no one would willingly take, yet it was convenient for the public when the street was blocked up by a crowd. The learned Judge held, that this was a highway, for removing the obstructions of which it was proper to proceed by indictment. § 28. In the above case, there is this dictum of Lord , EUenborough : "I think, that if places , are lighted by public bodies, this is strong evidence of the public having a right of way over them ; and to say that this right cannot exist because a particular place does not lead conveniently from one street to another, would go to extinguish all highways, where there is no thoroughfare." But this is a mere dic- tum, the point in issue being taken for granted. § 29. The cases in the old books certainly do not favor such a position as that of Lord EUenborough, as above stated.^ There is one modern decision which, however, supports it, viz. the case of Eugby ' Eex V. Lloyd, 1 Campb. 260. 2 " Thorough " and " Thoroughfare." " The first is evidently from the root door, which signifies a passage, and the radix of the word signifies to pass." — Webster, Diet. The second is defined, ' A passage through ; a passage from one street to another ; power of passing." — Ibid. ; and see Ibid. " Door." ' See ante, § 27, note. CHAP. I.] STREET AND CUL-DE-SAC. 23 Charity v. Merryweather.^ It appeared in evidence in this case, that the right of soil was clearly in the plaintiffs ; but there had been a common street there, though no thoroughfare, by reason of houses at the end,^ for above fifty years. Lord Kenyon, in addressing the jury, said : " If this rested solely on the ground of a question of right between the plain- tiffs and the Foundling Hospital, the former cer- tainly would not have been barred by the time which elapsed from 1780 till the obstruction was put up, pending the treaty between them ; but dur- ing all that time they permitted the public at large to have the free use of this way, without any imped- iment whatever, and, therefore, it is now too late to assert the right, for this is quite a sufficient time for presuming a dereliction of the way to the public. 'And as to this not being a thoroughfare, that can make no difference' " The jury found a verdict for the defendant upon the issue, on the plea of a com- mon highway.^ ' Rugby Charity v. Merry weather, 11 East, 375 (note). ' In Woodyer v. Hadden (5 Taunt. 138), Chambre, J., observed, " That there is a slight error in this report, in stating that it was no thoroughfare, by reason that houses were built across at the end. I have the briefs on both sides, and was in the cause." " But, at any rate," says Wellbeloved on Highways (p. 10, note a), " There was no thoroughfare, on account of the land at the end of the locus in quo being private property." ' Wellbeloved, in his work on the Law of Highways (p. 11), remarks, " It is evident that Lord Kenyon, in the above observations, and also Lord EUenborough, in Rex v. Lloyd, were misled by paying too much attention to the particular instance of the streets in so large a town as London, and overlooking the requisites and legal distinctions attached to highways in general. The parishes in London are, I believe, without exception, paved, lighted, and watched, under the regulation of divers acts of Parliament ; and are thereby completely withdrawn from the rules of ike common law, it is, therefore, incorrect, and contrary to all sound 24 LAW OP HIGHWAYS. [CHAP. I. § 30. Upon this subject, the interest of the ten- ants residing in the passage, it seems, should be re- garded. Lord C. J. Mansfield, in Woodyer v. Had- den,^ observed : " It is intimated that this was an attempt of the plaintiffs to extort a sum of money for passing over this way ; but I think the plaintiff's would not act handsomely, if legally, if, for any price, without the consent of the tenants — the inhabitants of these houses — they should agree to its becoming a public way; for there are many conveniences at- tending a private Cul-de-Sac, of which, having so let it to them, the lessors have no right to deprive them." The decision in this case, it will be seen, by an attentive examination of it, is opposed to the one in the case of the Eugby Charity. § 31. In the still later case of "Wood v. Veal,^ Ab- bott, C. J., in referring to Lord Kenyon's decision, which had been urged in the argument, said : " I have great difficulty in conceiving that there can be a public highway, which is not a thoroughfare, be- cause the public at large cannot he in the use of it." And Holroyd, J., said: "The opinion of Lord Ken- yon, in Rugby Charity v. Merryweather, is some- what shaken by the observations of Lord C. J. Mans- field, in Woodyer v. Hadden." So also Best, J.: "No man has a greater respect for Lord Kenyon than I have, but I think that decision was a depart- ure from the principles usually received in law. If reasoning, to extract the qualities of highways in general from the partial instance of the streets of the metropolis; yet, with all deference to these great Judges, this is the source from whence their arguments are derived." ' Woodyer v. Haddon, 5 Taunt. 125. " Wood V. Veal, 5 Barn. & Aid. 454. CHAP. I.] RAILWAYS IN STREETS. 25 a road be for the accommodation of particular per- sons only, it is not a public road ; and, therefore, I see no reason why the inhabitants of a street, which is not a thoroughfare, should not put up a fence at the end of it, and exclude the public." Undoubtedly, if a lot of land bounded in front upon a Gul-de-8ac, and upon a common street in the rear, the grantee is entitled to have the latter kept open for a neces- sary passage to the rear of his building.^ 7. Railways in Streets. § 32. The introduction and use of railways in the streets of a ciiy have existed in the city of New York for a number of years, and the question as to the general power of the city corporation to author- ize the laying of a railway track in that city, was well settled in 1849, in the case of Drake v. The Hudson River Eailroad Company.^ It appeared in the case, that by an act of the legislature, the com- pany was authorized to construct a railway between the cities of New York and Albany, commencing in the city of New York, with the consent of the city corporation, and the directors were authorized to locate such railway on any of the streets or avenues of the city, westerly of, and including the Eighth ' Livingston v. New York, 8 Wend. 99. It is settled by the later decision that a Cul-de-Sac may be a good highway if laid out by the proper authorities, or dedicated as such, and the dedication or laying out may be shown as in the case of any travelled way ; whether it is a public or private way may depend upon the character of the use in the absence of other evidence. Wiggins v. Tallmadge, 11 Barb. 457 ; Hol- dane v. Coldspring, 21 N. Y. 474 ; People v. Kingman, 24 N. Y. 559 ; People V. Johnson, 7 Mich. 492 ; Danforth v. Duvall, 8 Allen, 242 ; Bateman v. Black, 14 Eng. Law & Eq. 69. * Drake v. Hudson Kiver Railroad Co. 7 Barb. 508. 26 LAW OF HIGHWAYS. [CHAP. I. Avenue, on, or westerly of, Hudson Street ; provided, that the consent of the mayor and common council shouhl be first obtained. Two questions in the case were distinctly passed upon, and decided by the Court : First, that a railway in a city is not 2^er se a nuisance or a purpresture ; and, second, that the cor- poration of the city has the power and the right to authorize the use of its streets for that purpose. § 33. In Milhau v. Sharpe, it was held, that the corporation of the city of New York had the power and right to authorize parties to use its streets for the purpose of a railway track, as one of the general municipal powers of the corporation, that body be- ing invested with the largest discretion, so that, whether its laws were wise or unwise, it is not the province of the courts to inquire, and the same was also held in several other cases in the State of New York, and in some other States.'^ But subsequently in the Court of Appeals in New York, in the case of Davis w. Mayor, &c. of New York, it was held, that a resolution or ordinance of the common council of New York city, granting to certain individuals the right to construct and maintain a railway in some of the streets of the city for the transportation of pas- sengers for private gain, is void, and it is now the settled law of New York, that the right to construct and operate a railway in the public streets, is a fran- chise obtainable only by grant from the legislature.^ And such is the general rule, not, however, without ' Drake v. lludson River Railroad Co. 7 Barb. 508. 2 Milhau V. Sharpe, 15 Barb. 193; Davis v. Mayor, &c. New York, 4 Kern. 506 ; Wetmore v. Story, 22 Barb. 444 ; People v. Thinl Avenue Railroad Co. 45 Barb. 63 ; Same v. New York & Harlem Railroad Co. Id. 73. CHAP. I.] EAILWAYS IN STREETS. 27 exceptions,^ more especially in the case of streets of a city concerning which it is said that the municipal corporation is the owner of the fee, and has a greater right and control than pertains to similar bodies in case of highways in the country.^ By the ancient charters the fee in the streets of New York city is said to ■ be vested in the corporation, and though it was at first held that the power to grant license to use the streets to railways was one of the general municipal powers of the corporation, it is subse- quently held, that there is no such power in the corporation, and that the fee in the land vested by charter in them, is held in trust for the public use as a highway, and gives the corporation no power to dispose of or divert it.-' And the inquiry as to the distinction between, the use of streets in towns and cities, and highways in the country seems not to be of practical utility. The error of the earlier cases was in giving too great a significancy to the propo- sition that a railway is but a new and unimproved kind of highway, which is true in some sense as it is of a canal, and perhaps of a telegraph wire ; but when considered with reference to the character of the use is essentially untrue. Of course it is possi- ble to conceive of a railway laid in the street, open to use by all in their own vehicles, and it is not im- probable that in the progress of time and develop- ment of resources, such a structure in some locali- ties may be not only desirable, but a public need, and if so, the powers of municipal corporations will ^ Lexington & Ohio Railroad v. Applegate, 8 Dana, 289 ; Milburn V. City of Cedar Rapids, 12 Iowa, 246 ; Haight v. City of Keokuk, 4 Id. 199. 28 LAW OF HIGHWAYS. [CHAP. I. be found ample to provide it ; but with such a road we have nothing to do at present, though it could hardly be among the prerogatives of municipal cor- porations to grant a franchise to collect tolls even upon such a road. The franchise of a street railway is defined to be a right to construct and maintain a railway on the surface of a street, and to carry pas- sengers and to demand tolls, and is so far exclusive that others may not use it without a grant from the legislature.^ § 34. The right of the railroad corporation is, how- ever, subject to the police power of the municipal authorities, and must be so exercised as not unne- cessarily to interfere with the free use of the street.^ Where the charter of a company authorizes it to es- tablish a railway along a public street to a particu- lar point, and to run a locomotive on a turn-out ' Brooklyn Central K. R. Co. v. Brooklyn City E. R. Co. 32 Barb. 388 ; People v. New York & Harlem Railroad Co. 45 Barb. 73 ; Sixth Avenue Railroad Co. v. Kerr, 45 Barb. 138 ; People v. Kerr, 24 N. Y. 188 ; Redfield on Railways, 3d ed. § 76, note. ^ Milhau V. Sharpe, 15 Barb. (N. Y.) Sup. Ct. 193. So in the case of Plant V. The Long Island Railroad Co. 10 Barb. 26, it was held, that the corporation of the city of Brooklyn had the right to authorize a railroad company to tunnel a public street for the purpose of laying a railway track. And in the case of Adams v. S. &. W. Railroad Co. 11 Barb. 414, a similar power was recognized in the Village of "Whitehall. In each of these cases, the recipient of the right or thing granted was a body corporate, created by an act of the legislature, but, in every case, the right, or thing granted, was given by the city or village corporation, by virtue of its general powers over its streets. Hamilton v. The New Y'ork & Harlem Railroad Co. 9 Paige, 171 ; Drake v. Hudson River Railroad Co. 7 Barb. 508; Stuyvesant v. Pearsall, 15 Id. 244; Chapman v. Albany, &c. Railroad Co. 10 Id. 360; Williams v. New York Central Railroad Co. 18 Id. 222 ; Lexington & Ohio Railroad v. Applegate, 8 Dana, 289 ; Hentz v. Long Island Railroad Co. 19 Barb. 646 ; Parrot v. C. H. & D. Railroad, 3 Ohio, 330 ; Newark Plank Road v. Elmer, 1 Stockton, 754. CHAP. I.] RAILWAYS IN STREETS. 29 from the main track to communicate with a depot erected by them near the terminus of the road, con- taining the machinery necessary for reversing the engine, &c., where no objection exists as to the con- struction of a turn-out at that particular point ; such liberty is subject to the police power of the munici- pal authority, and must be so constructed as not un- necessarily to interfere with the free use of a street.-^ The Philadelphia, Wilmington, and Baltimore Rail- road Company made a railroad, under authority of law, through the city of Wilmington, in the State of Delaware, by virtue of which the company had pow- er to use locomotive engines propelled by steam, with all the incidents of that mode of conveyance ; the company being responsible, as individuals would be, for the exercise of due care and prudence. In an action on the case, against the company, for neg- ligently running over the plaintiff's not well-broke horse, the Court held : " Being authorized to use steam as the propelling power of these engines, the smoke and. noise of steam escaping are indispensa- ble, as well as the noise occasioned by the cars, and the usual notice bells ; and the company would not be liable from mere accidents arising from fright to horses occasioned by these noises. In the exercise, however, of the right to use this steam-power in pass- ing through a populous town, the company are bound to use all due precaution to avoid danger to others, ' New Orleans &c. Railroad Co. v. 2d Municipality, 1 La. An. 128; Murch u. Concord Railroad Co. 9 Foster, 9 ; in which case it was held, that the owners of a railroad company are liable, like towns, for all inju- ries sustained from defects in their road, by persons travelling either on foot or in their own carriages, or in those of other persons. Veasie v. Mayo, 45 Me. 560 ; Redfield on Railways, ubi supra. 30 LAW OF niGHWATS. [CHAP. I. and to travel at a rate of speed prudent under the circumstances. This prudent and proper rate of speed is either regulated by law, or by the usual and customary speed. It will be for the jury to say, if, on the evidence, the defendants were going on their train at the usual and proper rate of speed, or if they abused, in any manner, their lawful right." ^ And the law of the road, modified in so far as the provisions of law peculiar to street railways requires use to be applied to the joint use of streets and highways by the company and the public.^ The rights, duties, and liabilities of street railways are usually prescribed by legislative authority with great care and minuteness in the various charters or in general statutes upon the subject, and though many and difficult questions as to the interest or estate of the railway companies under grants to lay a railway in the highway, and also in consequence of the pecu- liar and somewhat conflicting relations which the companies and the municipal authorities sustain^ have arisen during the comparatively short period since street railways have been in use, and they are very far from being uniformly or definitely settled, their determination is dependent upon the peculiar provisions of individual charters and of state laws, and they are not included in the plan of this work ; and they find a more appropriate place in treatises upon railways, to which the reader is referred. ^ Burton v. Philadelphia, Wilmington, and Baltimore Railroad Co. 4 Barring. 252. See 18 Barb. 222. See Redfield on Railways (3d edit.), § 76, and note. As to compensation to owners of the fee whose highway is occupied by railway, %ee post, 91 a. ' Commonwealth v. Temple, 14 Gray, 69; Heegan u. Eighth Avenue Railroad, 15 N. Y. 80; McCarthy v. State, 37 Miss. 411 ; "Wilbrand v. Eighth Avenue Railroad Co. 3 Bosw. 314. CHAP. I.] BRIDGES. 31 8. Bridges. § 35. A hridffe has been defined " a building of brick, wood or iron, erected across a river, ditch, valley, or other place otherwise impassable, for the convenience and benefit of travellers." ^ Again, " a building constructed over a river, . creek or other stream, or over a ditch or other place, in order to facilitate the passage over the same."^ The term " bridge," is a comprehensive one, and embraces every structure in the nature of a bridge, whether over a large stream or a mere culvert or sluiceway.^ There are, as is generally well known, bridges of a different character. A private bridge is one erected for the use of one or more private persons, although it may occasionally be used by the public* § 36. "How far," says a late writer on Criminal * Whart. Lexicon, 114. * 1 Bouv. Law Diet. 224. ' See pamphlet entitled " A Practical Compend of the Powers and Duties of Commissioners and Overseers of Highways in the State of New York," p. 12. In that State, whenever new roads are laid out in such direction as cross the line of any canal, and in such manner as to require the construction of a new bridge, such bridge must be constructed and forever maintained at the expense of the town in which it may be situate. Ibid., and 1 N. Y. Rev. Sts. 247, 248, §§ 174, 175 (3d edit.), 279, §§ 220, 221. A bridge as known to the common law, was a structure over a stream havino' a foot-way for man and beast; and this foot-way is essen- tial to constitute the structure a bridge. Proprietors of Bridges v. Ho- boken Land Co. (2 Beas.), 10 N. J. 504. A viaduct over a river for a railway, to be used exclusively for the passage of locomotives and railroad cars, is not a bridge within the meaning of a previous charter which makes the erection of any other bridge or bridges unlawful. Bridge Co. V. Hoboken Land Improvement Co. 10 N. J. 81, affirmed in Sup. Ct. U. S. 1 Wallace, 116 ; Tucker u. Cheshire Railroad Co. 1 Foster,. 29 ; McLeod V. Savannah, &c. Railroad Co. 25 Geo. 445; Mohawk Bridge Co. v. TJtioa and Sch. Railroad Co. 6 Paige, 564. But see Enfield Toll-bridge Co. V. Hartford and New Haven Railroad, 17 Conn. 56. ' See ante, § 1. 32 LAW OF HIGHWAYS. [CHAP. I. Law,^ "it is essential to the legal character of a bridge, that water should flow under it, may not be , entirely clear ; but it need not flow at all seasons of the year ; especially if there is one structure, having several arches, the whole may be deemed in law a bridge, though the water pass under some of the arches only at flood times." ^ § 37. A bridge with lateral embankments, erected by a railroad corporation for the purpose of raising a highway, and carrying over their roads, is as much a part of the structure authorized by the charter, as the railroad itself.^ § 38. Puhlic bridges may be divided into three classes ; first, those which belong to the public, as state, county or township-bridges, over which all people have a right to pass, without or with paying toll ; these are built by public authority at the pub- lic expense, either of the State itself, or of a district or portion of the State ; secondly, those which have been built by companies (like turnpike and railroad companies),* or at the expense of private individuals, and over which all persons have a right to pass, on the payment of a toll fixed by law; thirdly, those which have been built by private individuals, and which have been surrendered or dedicated to the use of the public* And a bridge may be a pub- ' 1 Bishop on Criminal Law, § 183. ^ And he refers to Rex v. Derbyshire, 22 B. 145 ; 2 Gale & Dav. 97 ; 6 Jur. 438, and oases there cited. " Parker v. Boston and Maine Railroad, 3 Cush. 107; Sussex v. Stra- der, 3 Harrison, 168. * See ante, §§ 8 and 14. ^ Rex V. Inhabitants of Bucks, 12 East, 200; Rex v. Inhabitants of Northampton, 2 M. & Sel. 262; Piscataqua Bridge Co. v. N. Hamp. Bridge Co. 7 N. H. 69; Callender v. Marsh, 1 Pick. 432; Charles CHAP. I.J BRIDGES. • 33 lie bridge which is used by the pubUc at all such times as are dangerous to pass through the river.'^ § 39. A causeway and bridge were only used by the public in time of floods, and in the time of very high floods the bridge itself was impassable, but they were at all times open to the public ; and this, it was held, was a public bridge.^ § 40. A public bridge being a highway, it follows, that those principles of the common law which relate to highways in general are alike applicable to public bridges; but although the principles are the same, yet from a diflference in the nature of the respective objects of their operation, their reduction to practice in the one case varies from that of the other. A common way may, with the consent of the proprie- tor, be at once subject to general user, without any antecedent act to bring it into existence ; but a bridge must have been erected before it can be traversed, and this distinction is the foundation of all the diflference between the two cases.^ The term " highway " does not import a bridge ; and in any case where there is occasion to notice any of the differences which exist between highways generally, and bridges, it is indispensable that the diflference should be marked by the use of the terms appropii- Kiver Bridge u. Warren Bridge, 7 Pick. 344, and S. C. H Peters, 539 ; and see 1 Campb. 26, n. ' Rex V, Inhabitants of Northampton, 2 M. & Sel. 262. And see post, Ch. III. ' Rex V. Inhabitants of Devon, 2 Ry. & Mood. 144. ^ Wellbeloved on Law of Highways, 4, 324 ; Shelford on Highways, 34. Woolrych says : " The principal circumstance necessary to constitute a public bridge, is, that the people at large may have a free and uninter- rupted use of it, not upon sufferance, but as a matter ot right. Wool- rych, Law of Ways, 196. 3 34 • LAW OP HIGHWAYS. [CHAP. I. ated to each. So that if a party is to be charged with neglect to build or repair a bridge, it must be by the term " bridge," which alone describes such a structure.-^ § 41. No State constitution, it is believed, gives the legislature, in terms, a right to make bridges, but such power has always been exercised, and no one doubts the legislative power to make such grants.^ An act of the legislature authorizing the erection of a bridge over navigable water, within the limits of the State, is clearly constitutional.^ It was said by the counsel, in the case just referred to at the bottom, that the grant of a right to build a bridge was upon the petition, and for the especial ' State V. Canterbury, 8 Foster, 195. And in the term "bridge" is included the abutments and embankments proper to secure safe and convenient access and passage over the stream., Sussex v. Strader, 3 Plar. 102; Proprietors Bridge Co. v. Hoboken Land Co. 10 N. J. 504; Tolland v. Wellington, 26 Conn. 578 ; Linton v. Sharpsbury Bridge, 1 Grant's Cases, 414. ° Piscataqua Bridge Co. v. N. Hamp. Bridge Co. 7 N. H. 35 ; and see Fletcher v. Peck, 6 Cranch, 128; Central Bridge Corp. v. Bailey, 8 Cush. 389 ; lb. v. Sleeper, 8 Cush. 324 ; South Carolina Railroad Co. V. Jones, 4 Kioh. 459 ; Hall v. Boyd, 14 Georgia, 1 ; Towles v. Justices, &o. 14 Georgia, 301 ; Erie City v. Schwingle, 10 Harris, 384 ; Indian- apolis V. McClure, 2 Cart. 147 ; Meadville v. Erie Canal Co. 6 Harris, 66; Harrell v. Ellsworth, 17 Ala. 576 ; Damariscota Toll-bridge Co. v. Cutter, 1 Red. 357 ; State v. Milo, 2 Red. 57; Mayor, &c. v. Macon and Western Railroad Co. 7 Geo. 221 ; Strong v. Dunlap, 10 Humph. 423 ; State V. Gilmanton, 14 N. H. 467 ; Schuylkill Bridge v. Frailey, 13 S. & R. 422; Charabersburg, &c. Co. v. Commissioners, 6 S. & Rawle, 229; State V. Canterbury, 8 Foster, 195; State v. Boscawen, 8 Foster, 195. There are three cases wherein authority from the legislature to erect a bridge is necessary : 1st. Where the stream is navigable ; 2d. Where the State owns the bed of the stream ; 3d. Where the right to take tolls is desired. The Fort Plain Bridge Co. v. Smith, 30 N. Y. 44. ' Commonwealth v. Breed, 4 Pick. 460. CHAP. I.] BEIDGES. ' 35 benefit, of a single individual ; this, said the Court, was doubtless true ; and that it was also true, that many other enterprises had originated in motives of private gain, which had resulted in great public impi-ovements.^ § 42. Where a bridge corporation erected a bridge, a part of which extended beyond the limits of the State, it was held, the corporation could not enforce the payment of a toll against a person passing over that portion only of the bi-idge which is without the limits of the State, the legislature having no power to give such authority.'^ § 43. A toll-bridge, made by two men across a stream, between their lands, by authority of the legislature, is real estate, and on sale thereof by the sheriff the proceeds of the sale are to be dis- tributed accordingly.^ § 44. By a statute of Connecticut, a turnpike com- pany are bound to repair all bridges which they shall build, if their charter do not designate what bridges they shall build. But if, when erecting them, they insist that the town ought to build and support them, they are not bound to repair them.* ^ And see Austin v. Carter, 1 Mass. 231 ; Commonwealth v. County Commissioners, 3 Met. 202; Parker v. Cutler Milldam Corp. 2 App. 353. ' Middle Bridge Corp. v. Marks, 13 Shep. 326. The right to make and maintaili a bridge, and take tolls thereon, over a navigable river which forms the co-terminous boundary between two States, can only be conferred by the concurrent legislation of both States. President, Mana- gers, &c. V. Trenton City Bridge Co. 13 N. J. 46. ' Meason's Estate, 4 Watts, 341. * Canaan v. Greenwood's Turnpike Co. 1 Conn. 1. Towns, in Ver- mont, are bound to repair injuries to bridges. Briggs v. Guilford, 8 Vt. 267. So, in Massachusetts and Connecticut. Lobdell v. New Bed- .ford, 1 Mass. 153 ; Lewis v. Richfield, 2 Boot, 436 ; Eldridge v. Pomfret, 1 lb. 153. So it is presumed in other States. 36 LAW OF HIGHWAYS. [cHAP. I. § 45. A vote by the proprietors of a bridge, that " all the present proprietors of stock therein shall have the right to pass free of toll, with their horses and carriages," is confined to the then proprietors, and does not extend to those who subsequently be- come the purchasers of the stock then existing.-^ 9. Ferries. § 46. The right to a ferry, it is said, must have originally belonged to the owner of the land, and must still be derived through him.^ But it does not follow, that this is a franchise inseparable from the soil, and that the lord would have no power to grant it to another. Holroyd, J., calls it an incorporeal hereditament; it being- such, it may certainly be the subject of a grant.^ It was in one case said argu- endo, that a ferry is real property, — an incorporeal hereditament within the parish, — that it is demand- able in a precipe quod reddat, — that an assize clearly lies for it, — that the owner may have a seisin in fee of it. It owes its birth to the land over which it is exercised ; but it by no means follows that it can- not have an independent existence. Though in its nature sui generis, the same principle which author- izes calling a bridge a public highway is applicable to the transverse navigation by a ferry ; and it is not inconsistent with the general principles of law re- garding highways.* In England, a number of stat- ' The Central Bridge Corporation v. Abbott, 4 Cush. 473. ° Wellbeloved on Highways, 33, etseq. ' Peter v. Kendal, 6 B. & Cress. 703. • Rex V. Nicholson, 12 East, 334 ; Walker v. Jackson, 10 M. & Welsb. 161; Smith t). Seward, 3 Barr, 342 ; Pomeroy v. Donaldson, 5 Missouri 30 ; Cohen v. Hume, 1 N. & McCord, 19 ; Gardner v. Greene, 8 Ala. 96 ; CHAP. I.] FERRIES. 37 utes have been passed, regulating the prices of carriage by ferrymen,^ but then these acts do not vary their liabihty at common law, as carriers^. The duty of a ferryman is to have the landing in a proper state for the reception of travellers, and to be pro- vided with proper easements for entering the boat, § 47. The right to keep a ferry is, in England, an incorporeal hereditament, being a franchise granted by the crown or depending upon prescription, which supposes a grant. The party entitled to the fran- chise has imposed upon him by law certain duties, incurs certain liabilities, and has a remedy against any one who, without right, interferes with his profits, or disturbs him in the enjoyment of his property.^ Perries received the attention of the colonial government of Massachusetts, soon after its first settlement ; but how granted, for what periods, for what purpose, or by what tenures, does not ap- pear. All ferries in Massachusetts and in Maine depend upon the general law, except such as were stated and settled as early as 1695.* The judicial authorities, in the State of New York, have power to grant licenses to keep ferries on the river Niag- ara, for the purpose of transporting across persons or goods for profit.^ Trent v. Cartersville Bridge Co. 11 Leigh, 521 ; Spivy v. Farmer's Admr. 1 Murph. 339. ' 1 Bac. Abr. "Ferry," and see Cohen v. Hume, 1 MoCord, 439. » Pate V. Henry, 2 Stew. & Port. 101. ' Blisset V. Hart, Willes, 508; 5 Com. Dig. 291. Ferry franchises are real estate, and must be conveyed like other real estate. Dandy v. Chambers, 23 111. 369. ' Day V. Steson, 8 Greenl. 365. ' People V. Babcock, 11 Wend. 584. 38 LAW OF HIGHWAYS. [CHAP. I. § 48. A ferry should be regularly established by law ; for the owner of a private ferry is not author- ized to land passengers on the opposite side of the stream, without the consent of the opposite riparian proprietor.^ In a petition to establish a ferry in Virginia, it must state, that the applicant owns the land on both sides, or on one side of the stream, and that a public road has been established through the land, to the place where the ferry is sought to be established.^ To justify the establishment of a ferry across the Ohio Eiver, the applicant must own the land on the Kentucky shore.^ 10. Canals. § 49. It is almost superfluous to represent that the importance of canals, as a means of inland navi- gation, attracted attention even in the earliest ages. The Egyptians, who were justly renowned for sci- ence and the arts, completed the character of high civilization by an assiduous attention to their inter- nal trade ; and the intercourse necessary to conduct it was facilitated by the same canals, which were constructed by the provident labor of that people, to distribute the capacious bounty of the Nile.* Modern nations have respected their example ; and in the United States, while nature has greatly as- ' Chess V. Manown, 3 Watts, 219 ; Chambers v. Furey, 1 Yeafes, 167 ; Bird u. Smith, 9 S. & Rawle, 26 ; Mills County v. St. Clair, 2 Gillm. 197; Lombard v. Cheever, 3 Ibid. 469 ; and see the doctrine of riparian own- ership fully considered by the Judges of the King's Bench, in the impor- tant case of Blundell v. Catterall, 5 B. & Aid. 91 ; and Gould v. Hudson Railroad Co. 12 Barb. 616. ^ Zane v. Zane, Virg. Cases, 63. ' Jefferson Seminary v. Wagnor, 2 A. K. Marsh. 379. ' See Balmano's Intr. to Sir William Jones on Bailments, 16, 17. CHAP. I.] CANALS. 39 sisted the internal trade of the country, it is a just tribute to the enterprising genius of the people, to admire the extent to which that advantage has been augmented by the means of beatable canals,^ which are highways of a particular kind. Their peculiar importance is attested by the fact, that upon their banks one horse will draw as much as thirty horses do on the ordinary turnpike, or on which one man alone*will transport as many goods as three men and eighteen horses usually do on common roads.^ When made by public authority, they are in law public highways, with the right of tolls attached.^ § 50. Canal boats do not come within the descrip- tion of " vessels of the United States," mortgages of which are declared by act of Congress to be void, unless recorded in the office of the collector of cus- toms, where such vessels are registered or enrolled. And there is no law now in force, requiring canal boats to be registered in the collector's office of the United States.* ' See in regard to the importance of canals to the commercial interest of a country, " Smith's Wealth of Nations," Vol. I. pp. 28, 228. * See Phillips's History of Inland Navigation, Preface, p. 9. ° Eex V. Kent, 13 East, 220 ; Kex v. Lindsley, 14 East, 317; Eex v. St. Mary's, Leicester, 6 M. & Sel. 400 ; Rex v. Trent and Mersey Canal Co. 2 D. & Ry. 752; and S. C. in 1 B. & Cress. 545; Rex v. Wok- ing, 5 Adol. & Ell. 50; Rex v. Oxford Canal Co. 6 D. & Ry. 86 ; Rex V. Aire and Calder Navigation, 4 Man. & Ry. 84 ; and S. C. 9 B. & Cress. 95 ; Eex v. Chelsea Waterworks, 5 B. & Aid. 156 ; Rogers v. Bradshaw, 20 Johns. 735 ; and see also 7 Johns. 326 ; Cooper v. Wil- liams, 4 Ham. 391 ; Commonwealth v. Fisher, 1 Penn. 462 ; Rogers's case, 7 Cow. 526 ; Farnum v. Blackstone Canal Corp. 1 Sumn. 46 ; Riddle <>. Proprietors of Locks, &c. 7 Mass. 169 ; City of Lowell v. Proprietors of Locks and Canals, 7 Met. 1. And see the authorities referred to in the different vols, of the United States Digest, tit. " Canal." Also, " A Prac- tical Compend of the Powers and Puties of Commissioners and Overseers of Highways, in the State of New York," Auburn, 1851. ♦ Hicks V. Williams, 17 Barb. 523. 40 LAW OF HIGHWAYS. [CHAP. I. § 51. A canal company is not bound by the prin- ciples of the common law, independent of its charter, to erect and maintain a bridge over the canal where a highway may be laid over the same, after its con- struction;^ and the authority conferred by canal commissioners in the State of New York, to take possession of lands of individuals for the use of the canal, can only be executed by them, or under their express direction, in each instance.^ § 52. Freight boats passing on the Erie and Champlain Canal are bound to give every facility for the passage of packet boats, as well through the locks as elsewhere ; and where a freight boat, passing west on the Erie Canal, was waiting for the emptying of a lock, when a packet boat overtook her, the lat- ter was held entitled to pass first.^ 11. Navigable Rivers. § 53. " God," says Domat, " has given us the use of the seas and rivers which opens the communica- tion with all the world to use, and makes us ac- quainted with our fellow-men in distant countries."* The public right to the use of tide-waters for navi- gable purposes has never been called in question ; it is said to exist of common right, which is but an- other epithet for common law ; and a right to which ' Morris Canal and Banking Co. v. State, 4 Zabriskie, 62 ; and see King V. Kerrison, 3 Maule & Sel. 526. The owner of private road crossed by canal may compel canal owners to bridge it. Habersham v. Savan- nah, &c. Canal Co. 26 Geo. 655. ^ Lyon V. Jeremy, 2 Wend. 485. ' Farnsworth v. Groot, 6 Cow. 608. In respect to collision of canal boats, see Dygent v. Bradley, 8 Wend. 469. * 1 Domat, Civ. Law, 280. CHAP. I.] NAVIGABLE RIVERS. 41 the public right of fishery must always yield, when- ever the two rights come in conflict.^ § 54. All rivers, above the flow of tide-w^ater, are, by the common law, prima facie private ; but when they are naturally of sulficient depth for valuable flotage, the public have an easement therein for the purposes of transportation and commercial inter- course ; and, in fact, they are public highways by water.- Such is the common law, as laid down in the excellent treatise of Sir Matthew Hale,^ which in England has ever commanded profound respect. It certainly has the merit of defining, with much precision, vrhat constitutes a public highway by water, and of illustrating, with an equal degree of perspicuity, the distinction between such rivers as are exclusively private, and those in which the com- munity may assert an interest. Fresh rivers, of what kind soever, says he, do, of common right, be- long to the owners of the adjacent soil ; but that such rivers, as well as those which ebb and flow, may be under the servitude of the public interest ; that is to say, they may be of public use for the carriage of boats. As instances, he mentions the Wye, the Severn, and the Thames, which, he says, are public rivers, juris puhlici, as well above as below the flow- ing of the tide, and as well in the parts where they are of private as of public (as in the case of tide rivers) property; and nuisances and impediments ' 2 Inst. 56 ; Callis on Sewers, 25 ; Anonymous, Durham Assizes, Campb. 516, note ; Mayor of Colchester v. Brook, 2 Jur. 290, and 5 Harr. Dig. 781 ; Hart v. Hill, 1 Whart. 136 ; Post v. Mann, 1 South. 61 ; Wil- son V. Blackbird Creek Co. 2 Peters, 245 ; Gould v. Hudson Kiver Rail- road Co. 12 Barb. 616. ^ Harg. Tracts, De Jure Maris, &c. 42 LAW OF HIGHWAYS. [CHAP. I. therein are liable to be punished by indictment. They are called public rivers, not in reference to the property of the river, for that is in the individuals who own the land/ but in reference only to the pub- lic use.^ § 55. The territory of the United States is distin- guished, especially, for such rivers as come within the above description of public highways by water ; and to them has the public at large been extensively indebted for the easy and convenient communication by them afforded, between the maritime cities and the rapidly growing and productive regions of the interior. They have imparted energy to the enter- prising genius of the people, and been the means of transforming deserts and forests into cultivated and fruitful fields, flourishing settlements, and opulent cities. That portion of the river Connecticut, which is as high up from tide-water as the State of New Hampshire — it there affording flotage — is, by the common law, a public highway.^ The Potomac is part of the jus publicum, and any obstruction to its navigation would, upon the most established princi- ples, be a public nuisance.* This river, above tide- water, was not originally navigable ; but it has been made so, in a qualified manner, by law in Maryland, to which State it entirely belongs.' The river Mis- sissippi is pre-eminently an open highway, and upon ' See ante, Chap. I. § 2. ^ Royal Fishery in the Kiver Banne, Davis, 152 ; Carter v. Murcot, 4 Burr. 2162 ; Callis on Sewers, 78. ' Scott V. Wilson, 3 N. H. 321 ; and see MoflFett v. Brewer, 1 Greene, 348 ; Moore v. Veazie, 2 Red. 343. * Georgetown v. Alexandria Canal Co. 12 Peters, 91. ' Binney's case, 2 Bland, 99. CHAP. I.] NAVIGABLE RIVERS. 43 principles of international law, the right of passage in it, by a citizen of one State, within the jurisdic- tion of another, is classed among imperfect rights ; but the right was made perfect by the Constitution of the United States, which provides that the citi- zens of each State shall be entitled to the privileges of the several States.' Under the ordinance of 1787, stipulating that " the navigable waters leading into the Mississippi and St. Lawrence shall be com- mon highways, and forever free," he who owns the lands on both banks owns the entire river, subject only to the easement of navigation; and he who owns the land upon one bank only, owns to the middle of the river, subject to the same easement.^ The river Muskingum is a common highway under the ordinance above mentioned, and the legislature cannot authorize a dam to be built across which ob- structs its navigation.^ § 56. If a stream is naturally of sufficient size to float boats or mill-logs, the pubhc have a right to its free use for those two purposes, unincumbered with dams, &c.* In Varick v. Smith, in New York,* the Vice-Chancellor held, that the doctrine that fresh- water rivers, above tide-water, belong to the owners of the soil adjacent, though capable of being used for the purposes of navigation, had been sanctioned and confirmed by repeated decisions in that State, ^ Per Catron, C. J., in Corporation of Memphis v. Overton, 3 Yerg. 389. = Gavit V. Chambers, 3 Ohio, 495; Cowper v. Hall, 5 Ohio, 320; Morgan v. King, 30 Barb. 9. = Hogg V. Zanesville Canal Co. 5 Ohio, 410. « Wadsworth v. Smith, 2 Fairf. 278. ' Varick v. Smith, 9 Paige, 547. 44 LAW OF HIGHWAYS. [CHAP. I. and applied to streams which were navigable for boats and rafts, which had been declared to be pub- lic highways by statute. In Scott v. Wilson, in New Hampshire/ it was held that the river Connecticut, above the ebb and flow of the tide, had been so long used for the purposes of boating and rafting, that it must be considered a highway. If a stream has a broad and deep channel, calculated for the purposes of commerce, it would be natural to conclude that it has been a public navigation ; but if it is a petty stream, navigable only at certain periods, and then only for a short time, and by very small boats, it is difficult to suppose that it ever has been a public channeP Upon this it has been remarked : " It might as well be said, that it is difficult to suppose a footpath can be a highway, because horses and carts cannot traverse it. It is a new distinction that the size of a carriage is to determine the nature of the way. It may be evidence to go to a jury, as to the actual public use thereof; but can have nothing to do with the abstract principle." ^ And in the United States, it is held that the right of public servitude in a stream depends, not upon its navigability in the common-law sense of the terra, but upon its capacity ' Scott V. Wilson, 3 N. H. 321. When timber is forfeited under the act regulating the mode of putting pine timber into the Connecticut River, the title of the former owner is wholly lost, and a contract with the person who has taken it up, to pay him for his trouble, and take it away, does not re-vest the title until the contract is executed. lb. Pine timber put into the Connecticut River, and which may have been liable to forfeiture, cannot be seized as forfeited, after the owner has regained the possession of it, and has it in his custody. Barron v. Davis, 4 N. H. 838. ' Rex V. Montague, 4 B. & Cress. 596. Mr. J. Bailey. " Wellbeloved on Highways, 21, note. CHAP. I.] NAVIGABLE RIVEKS. 45 for the purposes of trade business and commerce. Any stream capable of being used in the transpor- tation of any kind of property to market, whether in boats, rafts, or single pieces, is a public stream, and subject to the public use. The ebb and flow is not the only test, nor is the public easement always founded upon usage or custom ; the test is, whether there is in the stream capacity for use for the pur- pose of transportation valuable to the public ; and in this view it is not necessary that the stream should have a capacity for flotage at all seasons of the year, nor that it should be available for use against the current as well as with it, if in its natural state and with its ordinary volume of water, either constantly or at regularly recurring seasons, it has such capac- ity that it is valuable to the public, it is sufi&cient.^ § 57. The public likewise have a right to travel on a public river upon the ice ; and, therefore, if any one cuts holes through the ice upon or near the place where there has been a winter-way for twenty years, he is liable to the payment of all damages sustained thereby by those travelling upon such way, without carelessness or fault on their part. The waters of the river Penobscot are, of common right, a public highway, and though the right so to use it by all the citizens is generally exercised when its waters are in a fluid state, yet when they are con- gealed, the citizens have still a right to traverse their '*Morgan v. King, 35 Barb. 9; Moore v. Sanborne, 2 Mich. 519; Browne v. Chadbourne, 31 Me. 9; MeManus v. Carmichael, 3 Clarke, 1 ; Treat v. Lord, 42 Maine, 552; Lorman v. Benson, 8 Mich. 18; Rhode V. Otis, 33 Ala. 578 ; Stuart v. Clarke, 2 Swan, 9 ; Dalrymple v. Mead, 1 Grant, 197; and see as to burden of proof, Ellis v. Carey, 30 Ala. 725 ; Am. Kiver Water Co. v. Amsden, 6 Cal. 443. 46 LAW OF HIGHWAYS. [CHAP. I. surface at pleasure. Assuming that the riparian owners have as good a right to the use of the water as the pubUc generally have to the right of passage, the use of the privilege should be such as may be most beneficial and least injurious to all who have occasion to avail themselves of it.-^ § 58. A riparian proprietor does not, in England, make his watercourse a public one, or one subject to public use, by making it at his own expense boat- able by artificial means, as by locks, or by uniting other waters, unless the improvement be made by public authority, or for a long continuance of time it has been used by the public.^ In this country, likewise, such little streams as are not boatable, that is, as cannot, in their natural state, be used for the carriage of boats, rafts, or other property, are wholly and absolutely private ; not subject to the public interest, nor to be regarded as public highways by water.^ If a person be the owner on both sides of such a watercourse, and at his own expense makes it boatable by artificial means, it does not thereby be- come public ; it is still private property, and cannot be infringed, even by the legislature, without a sat- isfaction being made.* • French v. Camp, Shepl. 438. As incident to the use of public rivers as highways, the public may use the banks so far as the same may be essential to the enjoyment of the easement. Lewis v. Keeling, 1 Jones, Law 299 ; Baker v. Lewis, 33 Penn. 301 ; Dalrymple v. Mead, 1 Grant's Cases, 197 ; Treat v. Lord, 42 Me. 552. " Harg. Tracts, Hale's Treatise, De Jure Maris, &c. In England, a person, by license from the crown, may make locks upon a public river flowing through his land for the advantage of the navigation ; and the owners of barges passing through the same are under obligation to pay such tolls as the Privy Council shall appoint. Cro. Car. 132 ; Cowp. 47. ' Gates V. AVadlington, 1 McCord, 580. * Wadsworth v. Smith, 2 Fairf 278. CHAP. I.] NAVIGABLE RIVERS. 47 § 59. But should a person obstruct the flow of the ■waters of a stream over their accustomed bed, so that it could not be used as formerly for the purpose of boating or floating rafts or logs, and should turn them into a new channel, he would thereby author- ize the public to make use of them in the new chan nel, as they had been accustomed to use them in their former channel.-' But on the same principle that a riparian owner may improve his watercourse, by locks or otherwise, he may make a new water- course upon his own land, and withhold its use from all who will not make compensation, and authorize its use by those who will. Nevertheless, those who have been injured by the opening of such new watercourse may abate it as a nuisance, or recover damages for the injury in an action at law.^ § 60. The legislature of a State cannot, by declar- ing a river navigable, which is not so in fact, deprive the riparian owners of their rights to the use of the water for hydraulic and other purposes, without ren- dering them compensation ; ^ and the provisions of the legislative resolutions of Ohio, providing for the assessment of damages to the riparian owners upon navigable streams, are construed to extend to all streams which have been by the legislature de- clared navigable.* Indeed, it has been shown that, by the law of eminefit domain,^ a State has not the right, without making compensation, to destroy ' Divinel v. Veasie, 44 Maine, 167. ' Divinel v. Barnard, 28 Maine, 554. ' Walker v. Board of Public Works, 16 Ohio, 540 ; Moore v. Veazie, 2 Bed. 343 ; Bell v. Gough, 3 Zabr. 624. * Walker, &c. ub. sup. See State v. Galium, 2 Speers, 581. ' Post, Chap. II. 48 LAW OP HIGHWAYS. [CHAP. I. the property of individuals situated upon a -water- course, in making it navigable, when it is not so by nature ; or in appropriating such watercourse to the public use, by artificial erections and improvements.^ A company incorporated for the purposes of lock- navigation cannot claim the privileges of a riparian owner; and, therefore, it has no right to increase the water beyond what it derives from the act of incorporation ; and being by this required to make compensation "for any damage done to lands or property," must do so imder all circumstances, when its works are the cause of the injury ; and is answer- able for injury even in times of flood, from the forcing back of the water by its dam upon its neigh- bors.^ A stream in Pennsylvania, which has been declared by the legislature to be a public highway, is a " navigable " stream in the sense in which all boatable rivers are viewed by the courts of that State ; ^ but such declaration will not divest prop- erty previously acquired to the middle of the stream by a grant from the State.* At the same time an act of a State legislature imposing reasonable tolls, as a compensation for improving the navigation of a public river, is constitutional and valid, unless it conflicts with the power of Congress in its actual exercise.^ ' See the opinion of Chancellor Bland, in Binney's case, 2 Bland, 158. » Monongahela Nav. Co. u. Coons, 6 Barr, 379. ' See post, Pt. 11. of this chapter. * Coovert V. O'Connor, 8 Watts, 447. And see Monongahela Nav. Co. V. Coons, 6 Watts & S. 101 ; Susquehanna Canal Co. v. Wrio-ht 9 Watts & S. 9. ° ' " Thames Bank v. LovcU, 18 Conn. 566. And see Spring v. Russell, 7 Greenl. 273; Shrunk v. Schuylkill Nav. Co. 14 S. &°Rawle 7] • Hart V. Hill, 1 Whart. 136. ' ' CHAP. I.] NAVIGABLE EIVEES. 49 § 61. It was not the intention of the ordinance of 1787, in declaring the navigable streams of the Northwestern Territory public highways, to prohibit the making of such improvements as might be de- manded by the public interests or convenience of the people of the States through which they flow, though some inconvenience might arise to those who were in the habit of using them in a particular man- ner, before such improvements were authorized.'' § 62. It has appeared, that the line of. demarca- tion of the common law, between such streams of water as are private, and such as are altogether pub- lic, is that at which they begin to partake of the sea. Below this point, the water is not only public for all floatable uses, but the hed or soil over which the water runs is also public ; both the use and the prop- erty, in other words, are public. The river Hudson, for example, is entirely private property, in one part ; is subject as such to public use in another part; and is wholly and entirely public property from its mouth to as high up therefrom as the tide flows. In that part of the stream wherein the en- tire right of property is in the public, it is called by the law "navigable," which, in the technical sense, and different from the common acceptation of that word, is confined in its application to fresh-water rivers only to the extent to which they are pro- pelled backward by the ingress and pressure of the ocean tides.^ §63. To determine whether a river is "naviga- ' Williams v. Beardsley, 2 Cart. 591 ; and see Board of Commis- sioners, &c. Ibid. 162. 2 Gould V. Hudson River Railroad Co. 2 Seld. 522. 4 50 LAW OF ■ HIGHWAYS. [CHAP. I. ble " in the admiralty acceptation of tliat term, re- gard must be had to the ebbing and flowing of the tide.^ In the Supreme Court of the United States, in a case which came up from the District Court of the eastern district of Louisiana, the question was presented of admiralty jurisdiction in the river Mis- sissippi, which the Court considered was to be de- termined by the ebbing and flowing of the tide ; and, in determining the question, the ordinary state of the water, uninfluenced by any extraordinary fresh- ets, was to be regarded.^ § 64. It was urged in Rex v. Smith,^ that the river Thames, above London Bridge, was not " navigable," although it was flowing and reflowing, inasmuch as the tide beyond that limit was occasioned by the pressure and accumulation backward of fresh water. But the distinction attempted was, by Lord Mansfield, pronounced new and inadmissible. In a case in the British House of Lords, where the question was, what was to be considered "river" and what "sea"; and where the direction was, that the thing to be looked to is the fact of the absence or prevalence of the fresh water, though strongly impregnated with salt ; the direction was held to be erroneous.* The Supreme Court of the United States, referring to the above case of Rex v. Smith, have decided, that although the current in the river Mississippi, at New Orleans, may be so strong as not to be turned back- wards by the tide; yet, if the ejBfect of the tide upon ' Sir Henry Constable's case, 5 Ca. 107. ' Peyroux v. Howard, 7 Peters, 824. ' Rex V. Smith, 2 Doug. 441. * Home V. Mackenzie, 6 Clark & Fin. 628. CHAP. I.] NAVIGABLE RIVERS. 51 the current is so great as to occasion a regular rise and fall of the water, it might properly be said to be within the ebb and flow of the tide.^ § 65. This distinction as it regards the law of meum and ttium between the term " navigable," in its technical sense, when applied to a river, and in the common acceptation of it when so applied, is important. In the case of the Royal Fishery of the river Banne, in Ireland, it was resolved, " that there are two kinds of rivers, navigable, and not naviga- ble ; that every navigable river, so high as the sea ebbs and flows in it, is a royal river, and belongs to the king, by virtue of his prerogative ; but in ever?/ other river, and in the fishery of such other river, the ter-tenants on each side have an interest of com- mon right ; the reason for which is, that so high as the sea ebbs and flows, it participates of the nature of the sea, and is said to be a branch of the sea so far as it flows." ^ But all rivers entirely above the influence of the tide, if they are so large as to admit of navigation, and to be of public use for the passage of vessels, boats, &c. may, as well as those which ebb and flow, be under the servitude of the public inter- est, and be used as " public highways " by water. They are regarded as public, not in reference to the property in the soil or bed of the river, for that is in the riparian proprietors; but only in reference to public use. The doctrine of the common law as to this distinction, w^e have seen, is clearly and explic- itly laid down by Lord Hale.^ The right of prop- ' Peyroux v. Howard, 7 Peters, 324. ^ Royal Fishery, in the river Banne (case of), Davies, 149. ' De Jure Maris, &c. 52 LAW OP HIGHWAYS. [CHAP. I. erty in the soil and bed of " navigable " rivers being thus vested in the sovereign, and that in the soil and bed of rivers which are only " public highways " being in the riparian proprietors, in adjusting con- troversies arising between the public and individu- als, as to the right of soil covered by water, and the consequent rights o? fishery, it may be necessary to ascertain the extent of the flowing of the tide. § 66. But the Courts of some of the States in this country have adjudged, that the common law, so far as it recognizes the above distinction, does not apply to our large fresh-water rivers, and that these rivers, without reference to the flow and ebb of the tide, do not belong to the owners of the land adjacent, and that they have not the property in the soil under the water, and the consequent exclusive right of fishing usque adfilum aquce, or, to the middle of the river; or, in other words, these rivers are to be deemed not merely "highways" but "navigable." Learned Judges in New York have been inclined, on some occasions, to doubt the propriety of apply- ing the rule of the common law to the extensive boatable rivers of this country, which are capable of being used as public highways far above where they are affected by tidal influence. Still, however, the rule remains unaltered in that State.^ The ques- tion was directly passed upon in the Court of Chan- cery of New York, in Varick v. Smith,^ whether the complainant, in the character of riparian proprietor, > See Palmer v. Mulligan, 3 Caines, 307 ; Shaw v. Crawford, 10 Johns. 236 ; People v. Piatt, 17 lb. 15 ; Hooker v. Cummings, 20 lb. 90 ; Jen- nings, ex parte, 6 Cow. 518 ; Canal Commissioners v. The People, 6 Wend. 423 ; People v. Canal Appraisers, 13 lb. 355. ' Varick v. Smith, 5 Paige, 137. CHAP. I.] NAVIGABLE RIVERS. • 53 was to be regarded as the ovrner of the bed of the river Oswego, to the middle of the stream, adjacent to his possessions described in the bill; and Wil- liams, V. C, considered it as settled in that State, that grants of land bounded on rivers above tide- water extend usque adfilum aquce, and if the stream is in point of fact navigable for boats or other craft, the public have the easement of a right of passage, and nothing more. Upon an appeal of this case, in 1842,^ it was, however, contended, that the decision of the Court of Errors, in the case of Canal Apprais- ers V. The People, on the relation of Tibbetts/ and certain remarks of the Chancellor himself, made in the course of his opinion in that case, and some few facts given in evidence by the defendants, throw a doubt upon the point. V. C. Gridley, in delivering his opinion upon making the decree appealed from, said it was true, that the counsel in the case just mentioned contended that the common-law doctrine was not at all applicable in New York ; but, said he, " it would seem to be enough that the most strenu- ous advocates for the right of the State to the bed of navigable rivers — Senators Beardsley and Tracy — with this very evidence before them, took the precaution to repel, by unequivocal language, the application ,of the principle contended for, in the case before cited, to any other river than that of the Mohawk; and expressly reserving their judgments as to all other cases." An opinion seem to have been entertained, that the various acts of the leyis- ' 9 Paige, 547. ^ Canal Appraisers v. The People, ex rel. Tibbetts, 17 Wend. 574, (in 1836). 54 LAW OF HIGHWAYS. [CHAP. I. Idture in relation to the river Mohawk were evi- dence that the State was the owner of the bed of that river. But all of doubt or uncertainty upon the subject in New York, if any remained, were re- moved by the decision in the Court of Errors in that State, in the case of the Commissioners of the Canal Fund v. KempshalV in which the judgment of the Supreme Court, in favor of the riparian own- ers, was unanimously affirmed. § 67. This rule of the common law has also been recognized in the States of Massachusetts and New Hampshire, and has been applied by the Courts of both to the river Connecticut, at a point far above that to which the water is propelled backwards by the ingress and force of water from the sea.^ It has been recognized also as law in the States of Con- necticut,^ Maine,* Maryland,* Virginia,* Ohio,' Indi- ana,® Wisconsin ^ and Michigan." In Illinois it is held, that the portion of the river Mississippi, upon which that State is bounded, is not a " navigable " ' Commissioners of Canal Fund v. Kempstall, 26 Wend. 404. " Commonwealth v. Chapin, 5 Pick. 199 ; Scott v. Wilson, 3 N. H. 321 ; State v. Gilmanton, 9 lb. 461 ; Gray v. Bartlett, 20 Pick. 186. ' Adams v. Pease, 2 Conn. 48 ; Chapman v. Kimball, 9 lb. 38 ; East Haven v. Hemingway, 7 lb. 186 ; Middletown v. Page, 8 lb. 231. * Berry v. Carle, 3 Greenl. 269; Spring!;. B,ussell, 7 lb. 273; Spring V. Seavey, 8 lb. 138 ; Wadsworth v. Smith, 2 Faii-f. 278. ° Brown v. Kennedy, 5 H. & Johns. 195. ' Hays V. Bowman, 1 Rand. 417 ; Mead v. Haynes, 3 lb. 33. ' Gavitt V. Chambers, 3 Ohio, 495 ; Lamb v. Kicketts, 11 lb. 311 ; Walker v. Board of Public Works, 16 lb. 540. ' Cox 11. The State, 3 Blackf. 193. ' Mpiner v. Shute, 13 Wis. 692; Jones v. Pettibone, 2 Wis. 308; Walker v. Shepardson, 4 Wis. 486. 1° Rice V. Ruddiman, 10 Mich. 125 ; Lorman v. Benson, 8 Mich. 18 ; Jones V. Soulard, 24 How. 41. CHAP. I.] NAVIGABLE EIVERS. 55 stream at common law, and that, therefore, the ripa- rian ownership extends to the middle of the stream.^ § 68. On the other hand, the doctrine of the com- mon law, on this subject, has been held to be inap- plicable in Pennsylvania to the great rivers of that State, which are boatable far above tide-water, or where they are technically " navigable." It was set- tled in Carson v. Blazer,^ that such rivers are " navi- gable," although there is no flow and reflow of the. tide, and that they belong to the State in the same manner, and to the same extent, as an arm of the sea ; and that, therefore, the riparian owners have not an exclusive right to fish therein immediately in front of their lands, but the right of fishery in them is open to all. "The qualities," said Mr. J. Yeates (in giving his opinion in this ably argued case), " of fresh or salt water, cannot, amongst us, determine whether a river shall be deemed navigable or not ; neither can the flux or reflux of the tides ascertain its character. Pursuing such a rule would, in fact, in the first case, render the river Delaware an un- navigable stream throughout the confines of the State ; and, in the second, would confine its naviga- ble quality to its several courses south from Tren- ton. To assert that in either instance the proprie- tors of lands on the margin of that river have the sole right of fishery to the middle of its bed, cor- responding to their title in front of it, is, I presume, a doctrine which the warmest advocates for the right of exclusive fisheries would scarcely contend for." • Middletown v. Pritchard, 3 Soamm. 500 ; Jones v. Soulard, 24 How. 41 ; Bailey v. Miltenberger, 31 Penn. St. 37. ' Carson v. Blazer, 2 Blnn. 475. 56 LAW OF HIGHWAYS. [CHAP. I. The decision in this case was recognized and estab- lished, with much deliberation, in Shrunk v. Schuyl- kill Navigation Company/ in which Tilghman, C. J., in giving the judgment of the Court, said : " Many of our rivers, such as the Mississippi, Ohio, Alleghany, and Susquehanna, are navigable, even in their natural state, by vessels of considerable burden, and whether, if such rivers existed in England, the rule of the common law might not have been different, may certainly admit of a question." ^ § 69. Mr. J. McLean apprehended that the com- mon-law doctrine, as to the "navigableness" of streams, could have no application in this country, and that the fact of navigableness did, in no respect, depend on the flowing of the tide ; ^ and to that effect it has been held in South Carolina* and Ten- nessee.^ In Alabama, every stream of water suited to the ordinary purposes of navigation, whether it ebbs and flows or not (where the government has not expressly granted any part of the bed thereof), is not only a public highway, but the owners of land bounded upon it can assert no private right of soil to the bed of the river.^ It has been held by the Supreme Court of North Carolina, too, that what is a " navigable " river in that State does not depend upon the rule of the common law ; but that waters which are sufficient in fact to afford a common pas- .1 Shrunk v. Schuylkill Nav. Co. 14 S. & Rawle, 71. ' See also Union Canal Co. v. Landis, 9 Watts, 228 ; Coovert v. O'Con- nor, 8 Watts, 447. ' Bowman's Devisees v. Wathen, 2 McLean, 376. * Cates V. Waddington, 1 MeCord, 580. ' Elder v. Burrus, 6 Humph. 358. • Bullock V. Wilson, 2 Port. 436. CHAP. I.] NATIGABLE RIVEES. 57 sage for people in vessels are to be taken as " navi- gable." ^ In commenting upon the inapplicability of the common law on the subject, one of the Judges, in one case, in that State, pronounced it entirely in- applicable, and reniarked, that, by the rule of the common law, Albemarle and Pimlico Sounds, which are inland seas, would not be deemed " navigable " waters, and would be the subject of private prop- erty ; it makes no difference whether there is, or ever was, any tide in Albemarle Sound.^ There is much force in the following reasoning of Judge Tur- ley, of Tennessee, upon this subject, in delivering the opinion of the Supreme Court of that State : " All laws are, or ought to be, an adaptation of prin- ciples of action to the state and condition of a coun- try, and to its moral and social position. There are many rules of action recognized in England as suit- able, which it would be folly in the extreme, in coun- tries differently located, to recognize as law ; and, in our opinion, this distinction between rivers ' naviga- ble ' and not ' navigable,' causing it to depend upon the ebbing and flowing of the tide, is one of them. The insular position of Great Britain, the short courses of her rivers, and the well-known fact that there are none of them navigable above tide-water but for very small craft, well warrants the distinction there drawn by the common law. But very differ- ent is the situation of the continental powers of Europe in this particular. Their streams are many of them large and long, and navigable to a great • Wilson V. Forbes, 2 Dev. 30. ' Collins V. Benbury, 3 Ired. 277 ; and see Ingraham v. Threadgill, 3 Dev. 59 ; and 1 Jones, 299. 58 LAW OF HIGHWAYS. [CHAP. I. extent above tide-water ; and accordingly we find that the civil law, which regulates and governs those countries, has adopted a very different rule." ^ § 70. The decisions cited in the above two sec- tions conform to the civil law, by which all rivers in which the flow of water is perennial belong wholly to the public, and the public right extends to the use of the banks as well as to fishing.^ Navigable rivers, in the language of the civil law, are not merely rivers in which the tide flows and reflows, but rivers capable of being navigated, that is, navi- gable in the co')nmon sense of the term. In the words of the Digest, a navigable river is " statio iturve navigio." In the Code Napoleon, navigable rivers are spoken of as "Jlottables," that is, rivers ad- mitting floats.^ § 71. A collision took place in the river Missis- sippi, near the Bay of Goulah, and there was much doubt in Waring v. Clarke * whether the tide flowed so high, the evidence being conflicting ; but the ma- jority of the Court thought there was sufficient proof of tide there, and consequently it was not necessary to consider whether the admiralty power extended higher. But this case shows the unrea- sonableness of giving a construction to the Constitu- tion which would measure the jurisdiction of the ' Elder V. Burrus, 6 Humph. 366. See also Haight v. Keokuk, 4 Iowa, 1'99 ; McManus v. Carmichael, 3 Clark. 1. ' Dig. 43, 12, 13, 14 ; Inst. 212 ; 2 Domat Civ. Law, 382, b. 1, t. 8, §§ 1, 2. See ante, § 56. ' Dig- 43, 12, 13, 14, 15; Zouch, El. Jur. Descriptio Juris et Indieii Maritimi, Ft. 1, § 5 ; Code Napoleon, b. 2, t. 2, c. 2, art. 556, 560 - 563 ; b. 2, t. 1, c. 3 ; Ord. Louis. 14, § 3, art. 5. ' Waring v. Clarke, 5 How. 441. CHAP. I.] . NAVIGABLE RIVERS. 59 admiralty by the tide. By an act of Congress, passed the 26th of February, 1845,^ the admiralty jurisdic- tion is made to depend upon the navigable charac- ter of the water, and not upon the ebb and flow of the tide. This act extended the jurisdiction of the district courts to certain cases upon the lakes and navigable waters connecting the same, and it has been held to be consistent with the Constitution of the United States. The ground upon which the act rests is not the power granted to Congress to regu- late commerce, but the lakes and navigable waters connecting them were within the scope of admiralty and marine jurisdiction as known and understood, in the United States, when the Constitution was adopted. The admiralty jurisdiction granted to the federal government by the Constitution is not lim- ited to tide-waters, but extends to all the public nav- igable lakes and rivers where commerce is carried on between different States, or with a foreign na- tion.^ Over the commercial waters of a State, Con- gress can exercise no commercial power, except as it regards an intercourse with other States of the Union, or foreign countries.^ § 72. A stream nearly two hundred miles above tide-water, which has never been declared a public highway by statute, which is not capable of being used at any time for the passage of vessels or boats, or of floating rafts or logs, except when swelled by rains, or the melting of snow, is not, in any legal sense, navigable, but is private property, not subject > 5 Stat, at Large, 726. " Case of the Propeller Genesee Chief, 12 How. 443. » Per McLean, J., in the Passenger Cases, 7 How. 283. 60 LAW OP HIGHWAYS. • [CHAP. I. to the servitude of the public interest by a passage upon it ; unless the use of it had been dedicated to the public by the owners. And where the owner of land on both sides of such a stream has erected a dam across the same, to supply his mills, which would be injured by the floating of logs down the stream, over such data, he is entitled to an injunc- tion.'^ 12. Towing on the Banks of Public Rivers. § 73. By the civil law, which prevails in the great- est part of Europe and in Louisiana, the privilege of towing on the banks of navigable rivers is embraced in the public right of navigation.^ In this respect it is at variance with the common law. Bracton, it is true, has adopted the doctrine of the civilians, and his passage — Riparum etiam usus publicus gentium sicut ipsius Jluminis — is plainly taken from Justin- ian ; and though the same doctrine is [quoted by CalHs, in his work on Sewers, it is impeached by the otherwise unanimous current of authority. The little to be found in the books upon the subject, prior to the time of- Lord Hale, he has collected, and, after commenting upon it, he very evidently concludes, that no such right as the one in question existed, inasmuch as he says, that, where private interests are involved, they shall not be infringed without satisfaction being made to the party injured.^ The doctrine, therefore, of the civil law on this subject, • Curtis V. Keesler, 14 Barb. 511 ; Morgan v. King, 35 Barb. 9. " Just. Inst. L. 2, tit. 1, § 4 ; Coop. Just. tit. De Usu et Proprietate Kiparum. The Civil Code of Louisiana follows the Roman Civil Law. ' De Jure Maris et Portibus. CHAP. I.] TOWING ON BANKS OF PUBLIC RIVERS. 61 conflicts with the principle of the common law, and with one of the characteristics of the express writ- ten American constitutional law, that public conven- ience is to be viewed with a due regard to private property. The statute of 19 Hen. VII. c. 18, rela- tive to the navigation of the river Severn, allows a towing-path to the navigators, upon making reasona- ble compensation for the inconvenience they may thereby afford ; and it thereby distinctly affords a negative to the idea of a common-law right without compensation. In a modern case, by an act of Par- liament authorizing certain persons to make a cer- tain part of the river Avon navigable, and to set out and appoint towing-paths, it was required that satis- faction should first be given to the owners of the land ; and commissioners were appointed to settle, by inquisition, what satisfaction every person, having a particular estate or interest therein, should receive for his respective interest.^ But the question was brought directly before the King's Bench, in Ball v. Herbert,^ whether, at common law, the public have the right of towing on navigable rivers, and it was expressly decided that they had not. Lord C. J. Kenyon said, he remembered when the case of Peirse V. Lord Fauconberg was sent to that Court from the Court of Chancery ; and it was then the current opinion in Westminster Hall, that the right of tow- ing depended on usage, without which it could not exist. Some of the passages, he said, in Lord Hale, which seem to favor the common-law right, are ' Bath Kiver Nav. Co. v. Wills, 2 Cases relating to Railways and Canals, 7. ' Ball V. Herbert, 3 T. K. 253. 62 LAW OF HIGHWAYS. [CHAP. I. rather applicable to banks of the sea, and to ports.^ § 74. The Supreme Court of Illinois, and that of Tennessee, have, however, decided, agreeably to the civil law, that the right of navigators was not lim- ited to the bare privilege of floating upon the river Mississippi, but included a right to land, to fasten to the shore, as the exigencies of the navigation may require ; and that such was a burden upon the own- er of the land, which he must bear as a part of the public easement.^ Such, doubtless, had become estab- lished usage in respect to the great river in ques- tion, and, if so, the decision is in accordance with the opinion of the Court in Ball v. Herbert. It was ob- served by Lord C. J. Kenyon, in that case, that "perhaps small evidence of usage before a jury would establish a right by custom, on the ground of public convenience." § 75. In Mississippi, the banks of a river, which is a public highway, are private property, subject to the exclusive appropriation of the owner, and are not subject to the use of the public, although the river itself may be a public highway.^ The banks of navigable rivers, in Missouri, are public highways ; and, though owned by private individuals, fishermen and navigators are entitled to a temporary use of • See this case cited and approved by the Judges in Blundell v. Cat- terall, 5 B. & Aid. 91 ; Ledyard v. Ten Eyck, 36 Barb. 102. ' Middletown v. Pritchard, 3 Seam. 520 ; Godfrey v. Alton, 12 111. 29 ; Alton v. Illinois Transp. Co. Ibid. 38 ; Corp. of Memphis v. Over- ton, 3 Yerg. 390. That the right of the public to tow vessels and boats upon the banks of navigable rivers may be acquired by usace see Kinlock V. Nevile, 6 Mees. & Welsh. 794. ' Morgan v. Beading, 3 Smedes & Marsh. 366. CHAP. 1.] TOWING ON BANKS OF PUBLIC EIVERS. 63 them in landing, fastening, and repairing their ves- sels, and exposing their goods or merchandise ; yet this right has its reasonable qualifications and re- strictions, and will not allow a navigator to land for an unreasonable length of time, and, under pretence of repairing, employ teams, &c., thereby unreasona- bly obstructing the owner's enjoyment of his prop- erty.-^ 1 O'Fallan v. Daggett, 4 Mis. 343. So in North Carolina, Pennsyl- vania, and Maine, so far as may be essential to the enjoyment of the public easement. Lewis v. Keeling, 1 Jones, 299 ; Baker v. Lewis, 33 Penn. St. 301 ; Dalrymple v. Mead, 1 Grant's Cases, 197; Treaty. Lord, 42 Maine, 552. See ante, § 57, note. The waters of the Albany Basin, as well as the navigable waters of the river, are a public highway. Hart V. Mayor, &c. of Albany, 3 Paige Ch. 213 ; and see State v. Wilkinson, 2 Vt. 480; Gould t. Hudson River Railroad Co. 12 Barb. 616. 64 LAW OP HIGHWAYS. [chap. n. CHAPTER II. OF THE LAYING OUT AND THE CONSTBUCTION OF HIGHWAYS BY LEGISLATIVE AUTHORITY. 1. Eminent Domain. 2. Practice in England. 3. Practice in the United States. 4. Op the Public Use. 5. Corporate Franchises. 6. Provision foe Mode of Indemnity and the Pro- ceedings UNDER it. 7. Or the Kind and Modk op Compensation. 1. Eminent Domain. § 76. It has ever been the persuasion of mankind, that one of the principal powers, and one of the im- perative duties of the sovereign power, of a State is to provide for the wants of the community, as well as for its own immediate emergencies, means of facilitat- ing communication between distinct localities, both rural and urban. This, it is apparent, cannot be ac- complished (at least to the extent demanded, and in the manner the most desirable and satisfactory to all concerned) without resort to an appropriation of private property. Hence the power of making this appropriation is included in the general preroga- tives which the government of every country re- tains over the estates of its subjects, — a power that has been known and exercised under the appellation of "The Eight of Eminent Domain." Persons who have made but partial inquiry into the theory of CHAP. II.] EMINENT DOMAIN. 65 social organization must perceive that the right which every individual, as one of that organization, has over his own property, .must, to a certain degree, ever be subordinate to the right which the commu- nity has over all ; for without it there would be no compactness in the social union, nor any really effective force in the sovereign power.^ § 77. Between this right of "Eminent Domain" and the governmental prerogative of "Taxation," the difference is very considerable. Taxation exacts money from individuals as their share of the public burden, and the tax-payer is supposed to receive a just compensation in the benefits conferred by the government, and in the proper application of the tax. It deals, as has Keen justly remarked ^ with the whole community, or with a special class of ' That private inconvenience, and even injury, is to be endured, rather than public inconvenience or injury, is a right o{ public necessity. 2 Kent, Comm. 337, 338. It is justifiable, in case of Jire, for example, to raze houses to the ground to prevent the spreading of conflagration. Ibid, and the authorities there cited ; Peckham v. Justices, &c. 9 Geo. 391 ; Taylor V. Inhabitants of Plymouth, 8 Met. 462. Congress, in 1777, law- fully directed the removal from Philadelphia of articles that were necessary to the maintenance of the continental army, or useful to the enemy, and in danger of falling into his hands; and an individual, whose property was lost in consequence of such removal, had no legal claim to compensation. Eespublica v. Sparhawk, 1 Dall. 357; and see Dorsey's Ex'tor V. State, 4 H. & M'Hen. 165. In regard to highways, there can be no destruction of the public right, at common law. According to Fowler v. Saunders (Cro. Jac. 446) a highway must always continue a highway, and can neither be narrowed or enclosed, except by the agency of the representatives of the people in Parliament. Wood v. Quincy, 11 Cush. 487. In the absence of any constitutional provision forbidding the taking private property for public >ises without compensa- tion, the prohibition is implied from the nature and structure of the government. Martin, ex parte, 13 Ark. 198. " See the judgment of the New York Court of Appeals in the case of the People v. Mayor of Brooklyn, 4 Comst. 419. 5 66 LAW OF HIGHWAYS. [CHAP. H. persons in the community, on some rule of appor- tionment. But what is taken under the right of eminent domain is separate or aside from the owner's share of the common expenses ; and, to be compelled to contribute more than his share, he must be reimbursed} § 78. It is indeed a rule insisted on by PufFendorf, Grotius, Vattel, and all eminent publicists as a rule founded in equity, that a provision for compensation is a necessary attendant on the due exercise of the power of the lawgiver to deprive an individual of bis property without his consent.^ The law is uni- ' See post, Chap. IV. ' Vattel, ch. 20, § 34, and see 2 Kent, Comm. 339. The greatest des- pots have not always felt themselves at liberty to take private property for a public purpose without compensation. One of the Judges, in the case of Lindsay v. Commissioners, in the Superior Court of South Caro- line, 2 Bay, 58, has quoted from De Tott's Memoirs of the Turk- ish government, the following : " The Sultan Mustapha, being desirous of building and endowing a new mosque, fixed upon a spot in the city of Constantinople which belonged to a number of individuals. He treated with all of them for the purchase of their parts, and they all willingly complied with his wishes, except a Jew, who owned a small house on the place, and who refused to give it up. A considerable price was oifered to him, but he resisted the most tempting offers ; his partiality for the spot, or his obstinacy, resisted the most tempting offers. What was the conduct of the Sultan ? He consulted his Mufti, who answered, that private property was sacred, that the laws of the Prophet forbade his taking it absolutely, but he might compel the Jew to lease it to him, as long as he pleased, at a full rent ; and the Sultan submitted to the law." This is evidence, that the principle of indemnification is founded in natu- ral justice. See also People v. White, 19 Barb. 26; Hamjlton v. An- napolis and Elk River Railroad Co. 1 Maryland Chancery Decisions, 107; Cooper v. Williams, 7 Greenl. 273; Spring v. Russel, 3 Watts, 294 ; Henry v. Underwood, 1 Dana, 247 ; O'Hara v. Lexington, &c. Railroad Co. 1 Ibid. 232; Perry v. Wilson, 7 Mass. 395; Chestnut v.' Shane's Lessee, 16 Ohio, 599 ; Greenville and Columbia Railroad Co. V. Partlow, 6 Rich. Law, 2, 286 ; County of Sangamon v. Brown, 14 111. 163. CHAP. 11.] PRACTICE IN ENGLAND. 67 versally recognized as laid down by Bynkershoek, that " this eminent domain may be lawfully exercised whenever public necessity or public utility requires it," and that " the sovereign power may take from proprietors those things without which highroads cannot be made " ; and that " this right may be imparted to others occasionally, as to the chief magistrates of towns, cities," &c. But then he an- nexes the qualification, that, " if houses and lands be talcen from individuals, adequate compensation should be made." 2. Practice in England. § 79. In England, notwithstanding the transcend- ent power of Parliament, the law on the subject of the construction of highways, under the direction of the sovereign power, has been administered on the above-mentioned just and equitable principles. "If a new road," says Blackstone, "were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public ; but the law permits no man, or set of men, to do this without consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community ; for it would be dangerous to allow any private man, or even public tribunal, to be the judge of this com- mon good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested, than in the protection of every ' individual's private rights, as modelled by the muni- cipal law. In this, and in similar cases, the legisla- ture alone can, and indeed frequently does, interpose, 68 LAW OP HIGHWAYS. [CHAP. 11. and compel the individual to acquiesce. But how- does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner ; but by giving him a full indemnification and equivalent for the injury thereby sustained. The public is considered as an individual, treating with an individual for exchange. All that the legis- lature does is to oblige the owner to alienate his possessions for a reasonable price ; and even this is an extension of power which the legislature indulges with caution." ^ § 80. At this day, it is considered in England, that the true principle applicable to all such cases is, that the private interest of the individual is never ' 1 Bla. Com. 139. That a " full indemnification " is the condition, by the law of England, on which the valid exercise of the power of laying out highways depends, is evident from the act of Parliament for making a new road in London, from Black Friar's Bridge, across St. George's Fields (Anno. 1756). The Corporation of London is thereby authbrized and directed to treat with the owners of lands that might be taken away by the road, for the purchase of the same ; and, in case of refusal to treat for the value of the lands taken, the same to be assessed by a jury. Cited by Waties, J., in Lindsay v. Commissioners, 2 Bay, p. 58. And see Sutcliffe v. Greenwood, 8 Price, Exch'r, 535. Trespass for entering and breaking plaintiff's close. New assignment, setting out abuttals, to which the defendant pleaded a public highway. The plaintiff replied, that a new road had been made, by virtue of an act of Parlia- ment, and traversed the highway. By the act it was enacted, that the new road should be completed, and that the lands constituting the former road (unless leading over some moor or waste ground, or to some village, town, or place to which the new road did not lead) should be vested in trustees and sold. It was held, that the trustees could not make a partial destruction of the road, and that, if the old road lead to a single house, the same remained subject to the public right. Wilkinson v. Bagshaw, Peakc's Add. Cases, 165. Establishment of Highways by Parliament, see Rex v. Lyon, 5 Dowl. & Ry. 497 ; Rex v. Miller, 1 B. & Adol. 32; Rex V. Camberworth, 3 B. & Adol. 108 ; 4 Ibid. 731 ; Re\ v. Yorkshire, 5 B. & Adol. 1013 ; Rex v. Edge Lane, 6 Nev. & Mann. 81 ; 'Wilkinson D. Bagshaw, Peake's Add. Cases, 165. CHAP. II.] PRACTICE IN ENGLAND. 69 to be sacrificed to a greater extent than is necessary to secure a public object of adequate importance, and that the interference is one of an extraordinary character.^ The English Courts will not, therefore, so construe an act of Parliament as to deprive per- sons of their estates, and transfer them to other parties without compensation, in the absence of any manifest or obvious reasons of policy for so doing, unless they are so. fettered by the express words of the statute as to be unable to extricate themselves ; ^ for they will not suppose the legislature had such an intention.^ As it was observed in a recent case, where large powers are intrusted to a company to carry their works through a great extent of country, without the consent of the owners and occupiers of the land through which they are to pass, it is reason- able and just, that any injury to property which can be shown to arise from the prosecution of those works should be fairly compensated to the party sustaining it.* The extraordinary powers with which railways and other similar companies in England are invested by Parliament, are given to them "in con- sideration of a benefit which, notwithstanding all other sacrifices, is, on the whole, hoped to be obtained ' See, per Lord Eldon, 1 Mylne & Keen, Ch. 162 ; Webb v. Manches- terand Leeds Railway Co. 4 Mylne & Cr. Ch. 116, in -which the princi- ples on which equity will exercise its jurisdiction over companies invested with compulsory powers are considered. See also Simpson v. Lord How- den, 1 Keen, 598 ; Lister v. Lobley, 7 Adol. & Ell. 124. ' See Broom, Legal Max. 4. ' Stracey y. Nelson, 12 M. & Welsh. 540 ; Hutchinson v. Manchester and Kossendale Railway Co. 14 M. & Welsb. 694. * Eegina v. East Counties Railway Co. 2 Q. B., cited in Broom, Legal Max. 4 ; Blakemore v. Glamorganshire Canal Co. 1 Mylne & Keen, Ch. 162. 70 LAW OP HIGHWAYS. [CHAI*. II. bj the public " ; and that since the public interest is to protect the private rights of all individuals, and to save them from liabilities beyond those which the powers given by such acts necessarily occasion, they must always be carefully looked to, and must not be extended further than the legislature provided, or than is necessarily and properly required for the purposes which it has sanctioned.-^ Walford, in his " Summary of the Law of Railways," ^ says, in refer- ence to the rules of construction applicable to some of the more important provisions usually found in railway acts of Parliament : "A power of this nature, calculated to operate in a manner so highly derogar tory to private property, must receive a strict inter- pretation. If, in the supposed exercise of such a power, the company enter upon, or take, any man's land, they must clearly establish their authority to do so ; and if the words of the statute on which they rely are ambiguous, every presumption is to be made against the company, and in favor of private prop- erty." ' 3. Practice in the United States. § 81. Still, it is true, that in England, where the power of Parliament is often said to be omnipotent (meaning, of course, so far only as human agency is implicated), there may be an abuse of the poAver ' Per Lord Langdale, in Coleman v. East Counties Kailway Co. 1 Law Journal (Chan.), 78. ^ Walford on Railways, 63 (2d edit.), London, 1850. ' And see Scales v. Pickering, 4 Bing. 448 ; Webb v. Manchester and Leeds Railway Co. 4 Mylne & Craig, 120; and S. C. 1 Railway Cases, 599, per Lord Cottenham, Ld. Chan.; Selway u. Railway Co. 6 M. & Welsh. 699. CHAP. II.] PRACTICE IN THE UNITED STATES. 71 of appropriating private property, where the act of appropriation is the concurrent act of the three estates of the reahn ; but in a State governed by a written Constitution, as each State in this country is, if the legislature should so far forget its duty and the natural rights of an individual as to take his private property, and transfer it to another, when there is no foundation for a pretence that the public is to be benefited thereby, such an abuse of the law of eminent domain would be an infringement of the letter, as well as the spirit, of the constitutional law, and therefore is not within the general powers dele- gated to the legislature.-^ By the Constitution of the United States, too, " Private property shall not be taken for public use, without just compensation." This particular provision in this instrument, it is true, only restrains the power of the general gov- ernment, and has no application to the several States ; ^ but a prohibition to the same extent is to be found in the constitutions and bills of right of each of the States. Upon the admission of a State, as one of the United States, formed from territory of the latter, the right of eminent domain 'passes to the State, and nothing remains in the United States but the public lands.'' Besides, it consid- ered that the constitutional provisions on this sub- ject, both of the United States and of the several ^ Varick v. Smith, 5 Paige, 137 ; Morgan v. King, 18 Barb. 277. » Baron v. Mayor, &o. of Baltimore, 7 Peters, 243 ; State v. Dawson, 3 Hill, 100. 2 Pollard V. Hagan, 3 How. 212. Every State has the right to make public roads through the United States lands lying within it, under its power of eminent domain. United States v. Railroad Bridge Co. 6 McLean, 517. 72 LAW OF HIGHWAYS. [cHAP. H. independent States, are only declaratory of the previously existing universal law which has been hinted.^ § 82. The legislative power of taking private property for public use by providing for adequate compensation may be exercised directly by the employees of the government/ or, as has been long customary, through the medium of incorporated companies, or by means of individual enterprise. In Wilson V. Blackbird Creek Marsh Company, it is laid down by Chief Justice Marshall, that measures cal- culated to produce benefits to the public, though effected through the medium of a private corpora- tion, are clearly within the powers reserved to the States, provided they do not come in collision with those of the federal government.^ It appears by the ' Per Spencer, C. J., in Bradshaw v. Hodges, 20 Johns. 106 ; Whee- lock V. Pratt, 4 Wend. 647 ; Bougher v. Nelson, 9 G. & Johns. 299 ; People y. White, 11 Barb. 26 ; Harness v. Chesapeake and Ohio Ca- nal Co. 1 Johns. 248 ; Regents of the University of Maryland v. Williams, 9 G. & Johns. 409 ; Bristol v. New Chester, 3 N. H. 535 ; Embury v. Connor, 2 Sand. 98 ; Young v. Harrison, 6 Ga. 131. See the Law of " Eminent Domain " reviewed by Chan. Walworth, in 3 Paige, 45. And see Flatbush Avenue (Matter of), 1 Barb. 286; Toledo Bank «. Bond, 1 Ohio (N. S.), 686; Bradshaw v. Rogers, 2 Johns. 103; Eurman (Matter of), 17 Wend. 659. The State of New York possesses the power to appropriate to public use the lands of the Indians, within their territory, upon nlaking compensation therefor ; not- withstanding the grant of the right of pre-emption in such lands to Massachusetts. Wadsworth w. Buffalo Hydaulic Association, 15 Barb. 88; Brown v. Beatty, 34 Miss. (5 Geo.) 227; Martin, ex parte, (13 Ark.) 198 ; United States v. Minnesota Railroad Co. 1 Min. 127. " See ante, § 78. Power may be delegated to the magistrates of a county to determine when it is expedient that a bridge should be thrown over a creek or cove. Commonwealth v. Charlestown, 1 Pick. ISO. See Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, 45. = Wilson V. Blackbird Creek ]\Iarsh Co. 2 Peters, 251, and see AVest River Bridge Co. v. Dix, 6 Plow. 183. Foreign corporations may be CHAP. II.] PRACTICE IN THE UNITED STATES. 73 cases referred to in subsequent pages of this work, that charters to private corporations have been repeatedly granted in this country for the reason that they have been necessary for the promotion of enterprises of public utility, and, in very many instances, they have been of essential service in contributing to the convenience of the community as the means of accomplishing public improvements ■which otherwise would not have been so seasonably undertaken, if at all. § 83. It is very obvious, that in taking private property, under the express authority of giovern- ment, for public use, no more should be taken than is demandable by the exigencies of the community, and the least possible private injury in so doing should be committed.^ If the charter of a naviga- tion company authorize the entering upon lands adjoining the works to be constrxicted, and taking materials therefrom, no more can be taken than as an incident to the promotion of what is intended by the charter.^ So, the presumption is, in laying out a common highway, over the soil owned by an indi- vidual, such individual retains every right except the public easement ; and hence, a railroad company cannot lay their track upon such highway, if any- authorized to take lands, &o. for ■works of public improvement and the Legislature may determine the degree of interest in the lands that may be acquired. Morris Canal and Banking Co. v. Townsend, 24: Barb. 658. ' See Wallace's Appeal, 5 Barr, 101 ; Schaeffer's Boad, in re, Ibid. 515 ; Pitt Township, in re, 1 Ibid. 356. And see Hooker v. Railroad Co. 15 Conn. 318 ; 2 Kent, Comm. 839, n. ; Wheeler v. Rochester and Syra- cuse Railroad Co. 12 Barb. 227; Hill, &o. v. Mohawk and Hudson Railroad Co. 3 Seld. 152, — Ct. of Appeals. ' Hind V. Wabash Navigation Co. 15 111. 72. 74 LAW OF HIGHWAYS. [CHAP. U. thing be done unnecessarily injurious to his right of soil.^ 4. Of the Public Use. § 84. The power of determining upon what occa- sions, and under what circumstances, public uses of private property afford a sufficient pretension to its appropriation, is a discretionart/ legislative power. Al- though it must be conceded that the subject is one not without embarrassment, inasmuch as the line of demarcation between a use that is public, and one that is private, is not to be drawn without much consideration, yet the two branches of the legisla- ture, subject only to the qualified veto of the execu- tive, are the sole judges as to the expediency of making police regulations interfering with thje natu- ral rights of the citizen, or with the regulations which are conformable to the Constitution, and espe- cially so, as to the expediency of exercising the right of eminent domain for the purpose of accomplishing public improvements by constraint, either for the benefit of the inhabitants of the State generally, or of any particular section thereof^ § 85. Although it is difficult, and perhaps not pos- ' Trustees, &c. v. Auburn and Rochester Railroad Co. 3 Hill, 567. ' Varick v. Smith, 3 Paige, 137; 2 Kent, Comm. 339; Smith, Comm. on Stat, and Const. Law, § 325 ; Beekman v. Schenectady and Sara- toga Railroad Co. 3 Paige, 45 ; Harris v. Thompson, 9 Barb. 330 ; Hooker v. New Haven, &o. Co. 14 Conn. 146 ; Binney's Case, 2 Bland. 99 ; Pittsburg V. Scott, 1 Barr, 309 ; Williams v. New York Central Railroad Co. 18 Barb. 222; People v. Smith, 21 N. Y. 593; Buffalo and N. Y. Railroad Co. v. Brainard, 5 Selden, 100 ; Commonwealth v. Breed, 4 Pick. 460 ; Inhabitants of Springfield v. Connecticut Railroad Co. 4 Cush. 63 ; City Waterworks, 27 Ala. 104; Dyer v. Tuscaloosa Bridge Co. 2 Port, 296 ; CotriU v. Myrick, 2 Fairf. 222; L. C. & C. Railroad Co. v. Chap- pell, 1 Rice, 383 ; Norman v. Heist, 5 Watts & S. 171. CHAP. II.] OF THE PUBLIC USE. 75 sible to lay down any general rule, that will pre- cisely define the extent of the power of the govern- ment, in the exercise of the right of eminent do- main ; yet it appears from the authorities and the adjudged cases, referred to in the note to the pre- ceding section, that it must be large and liberal enough to meet the public exigencies, and at the same time be so limited and restrained as to secure effectually the rights of the citizen ; ^ it is manifestly a high exercise of the sovereign right.^ One thing is, however, incontrovertible, which is, that the necessities of the public to the use to which the property is appropriated must exist as the basis upon which the right is founded.^ It should not be merely or mainly for ornamental purposes,* but is not necessarily confined to purposes of business or duty, — it seems sufficient that there is an exigency for the exercise of a lawful public right, though it be only for purposes of amusement or recreation, as a way for travel to a public park or common, to places of historic interest or remarkable or pleasing natural scenery.^ § 86. The doctrine that the right of eminent do- ' Water Power Co. v. Boston and Worcester Eailroad Co. 23 Pick. 360. ' Inhabitants of Springfield v. Connecticut Railroad Co. 4 Cush. 63. ' Smith, Comm. on Stat, and Const. Law, § 325 ; Willsinson v. Leland, 2 Peters, 653. * See Boston and Roxbury Mill Corp. v. Newman, 12 Pick. 476 ; Dunn V. Council, &c. Harp. 180 ; Woodstock v. Gallup, 28 Vt. 587 ; Blodgett V. Boston, 8 Allen, 237; Gregory v. Adams, 14 Gray, 242; Stimson v. Gardiner, 42 Me. 248. ' Embury v. Connor, 3 Comst. 511 ; Higginson et al. u.Nahant, 11 Allen, 630. Qucere, whether for a public park or pleasure-ground, Ibid. ; Peti- tion of the Mt. Washington Road Co. 35 N. H. 134 ; DeVaraigne v. Fox, 2 Blatoh. 95. 76 LAW OF HIGHWAYS. [CHAP. H. main exists for every kind of public use, or for such a use when merely conveiiient, though not necessary, does not seem to be clearly maintainable, it being too open to abuse. The user must be for the people at large, — for travellers, — for all, — must be a right by the people, must be under public regulations as to tolls, or owned or subject to be owned by the State.^ ' See opinion of Woodbury, J., in West River Bridge Co. v. Dix, 6 How. 545, 546 ; who cites 3 Kent, Comm. 276; Railroad Co. v. Chap- pell, 1 Rice, 383 ; Memphis v. Overton, 3 Yerg. 53 ; King v. Russell, 6 B. & Cress. 566 ; King v. Ward, 1 Adol. & Ell. 384. Mr. Justice Wood- bury, in his opinion just above referred to, says : When we go to other public uses, not so urgent, not connected with precise localities, not diffi- cult to be provided for without the power of eminent domain, and in places where it would be only convenient, but not necessary, I entertain strong doubts of its applicability. Who ever heard of laws to condemn private property for public use, for a marine hospital or State prison ? -J^ " So a custom-house is a public use Tor the general government, and a court-house or jail for a State. But it would be difficult to find precedent or argument to justify taking private property, without consent, to erect them on, though appropriate for the purpose. No necessity seems to exist, which is sufficient to justify so strong a measure. A particular locality as to a faw rods in respect to their site is usually of no conse- quence ; while as to a lighthouse, or fort, or wharf, or highway between certain termini, it may be very important and imperative. I am aware of no precedents, also, for such seizures of private property abroad, for objects like the former, though some such doctrines appear to have been advanced in this country. 3 Paige, 45. Again, many things belonging to bridges, turnpikes, and railroads, where public corporations for some purposes, are not, like the land on which they rest, local and peculiar and public, in the necessity to obtain them by the power of the eminent do- main. Such seem to be cars, engines, &c., if not the timber for rails, and the rails themselves. Gordon v. C. & J. Railway Co. 2 Railway Cases, 809. Such things do not seem to come within the public exigency connected with the roads which justifies the application of the principle of the emi- nent domain. Nor does even the path for the road, the easement itself, if the use of it be not public, but merely for particular individuals, and merely in some degree beneficial to the public. On the contrary, the CHAP. II.] OF TIIE PUBLIC USE. 77 § 87. Very clearly, then, the right of eminent do- main does not authorize the government, even for a user must be for the people at large, — for travellers, — for all, — must also be compulsory by them, and not optional with the owners, — must be a right by the people, not a favor, — must be under public regulations as to tolls, or owned, or subject to be owned, by the State, in order to make the corporation and object public, for a purpose like this. 3 Kent, Coram. 270; Railroad Co. v. Chappell, 1 Rice, 383; Memphis v. Over- ton, 3 Yerger, 53 ; King v. Russell, 6 B. & Cress. 566 ; King v. Ward, 4 Adol. & Ellis, 384. It is not enough that there is an act of incorporation for a bridge or turnpike, or railroad, to make them public, so as to be able to take pri- vate property constitutionally, without the owner's consent; but their uses, and object, or interests, must be what has just been indicated, — must in their essence and character and liabihties, be public within the meaning of the term " public use." There may be a private bridge, as well as private road or private railroad, and this with or without an act of incorporation. In the present instance, however, the use was to be for the whole com- munitj', and not a corporation of any kind. The property was taken to make a free road for the people of the State to use, and was thus emi- nently for a public use, and where^there had before been tolls imposed for private profit and by a private corporation so far as regards the inter- est in its tolls and property. And the only ground on which that corporation, private in interest, was entitled in any view originally to condemn land or collect tolls was, that the use of its bridge was public, — was open to all and at rates of fare fixed by the legislature and not by itself, and subjected to the revis- ion and reduction of the public authorities. It may be, and truly is, that individuals and the public are often ex- tensively benefited by private roads, as they are by mills, and manufac- tories, and private bridges. But such a benefit is not technically nor substantially a public use, unless the public has rights. 1 Rice, 388. And in point of law it seems very questionable as to the power to call such a corporation a public one, and arm it with authority to seize on pri- vate property without the consent of its owners. I exclude, therefore, all conclusions as to my opinions here being other- wise than in conformity to these suggestions ; though when as in the present case, a free public use in a highway and bridge is substituted for a toll-bridi'e, and on a long or great and increasing line of public travel, and thus vests both a new benefit and use, and a more enlarged one, in the public, and not in any few stockholders, I have no doubt that these entitle that public for such a use to condemn pri.vate property, whether 78 LAW OF HIGHWAYS. [CHAP. 11. full compensation, to take the property of one citizen and transfer it to another, when the ptiblic is not beneficially interested in the transfer.^ The pos- session and exertion of such a power would be in- compatible with the nature and very object of all government ; for, it^being admitted, that a chief end for which government is instituted, is, that every man may enjoy his own ; it follows, necessarily, that the rightful exercise of a power by the government of taking arbitrarily from any man what is his own, for the purpose of giving it to another, would sub- vert the very foundation-principle upon which the government was organized, and resolve the political' community into its original chaotic elements.? In the matter of Albany Street, Chief Justice Savage, (in commenting on the section of the law under which the corporation of the city of New York had proceeded in widening a street), says, that, "the Constitution, by authorizing appropriation of private property to public use, impliedly declares, that for owned by an individual or a corporation. Boston W. P. Co. v. B. & W. Railroad Corp. 23 Pick. 360. And it is manifest that unless such a course can be pursued, the means of social and commercial intercourse might be petrified, and remain for ages, like the fossil remains in sand- stone, unaltered, and the government, the organ of a progressive commu- nity, be paralyzed in every important public improvement. 2 Dev. & Bat. 456 ; 1 Rice, 395 ; 8 Dana, 309. ' Pittsburg V. Scott, 1 Barr, 139; Beekman v. Schenectady and Saratoga Railroad Co. 3 Paige, 45; Varick v. Smith, 5 Paige, 159; Taylor v. Porter, 4 Hill, 140 ; Dickey v. Tennison. Act to estab- lish a neighborhood road takes property of individuals for private use, and is therefore unconstitutional, though providing for compensation. 27 Mis. 373 ; Sadler v. Langham, 34 Ala. 31. ^ Blpodgood V. Mohawk and Hudson Railroad Co. 18 Wend. 56 ; Ham- ilton V. Annapolis and Elkbridge Railroad Co. 1 Johns. Ch. 107 ; Day V. Stetson, 8 Greenl. 365. CHAP. II.] OF THE PUBLIC USE. 79 any other use, private property shall not be taken from one and applied to the private use of another." It is in violation, he says, of natural right ; and if it is not in violation of the letter of the Constitution, it is of its spirit.^ In Bloodgood «. Eailroad Conapany, Mr. Senator Tracy says : " These words of the Con- stitution should be construed as equivalent to a con- stitutional declaration, that private property, with- out the consent of the owner, shall be taken only for the public use, and then only upon a just com- pensation." ^ Chancellor Bland, of Maryland, in giv- ing his opinion in an important case, says : " The 'government of this Republic, by virtue of that emi- nent domain, which, for public purposes is intrusted to all governments, may take the property of any individual and cause it to be applied to the use of the public, on making him a reasonable compen- sation. But," says he, "it cannot arbitrarily take property from one citizen and bestow it on another ; because such an act, although not specially prohibited by the Constitution, would be contrary to the funda- mental principles of the government itself"^ As has been declared by a learned Judge in Virginia, "Liberty itself consists essentially, as well in the security of private property, as of the persons of individuals ; and this security of private property is one of the primary objects of civil government, ' Albany Street (In the Matter of), 11 "Wend. 149. ^ Bloodgood V. Kailroad Co. 18 Wend. 59 ; see Embury v. Connor, 2 Sand. 98. ^ Hepburn's case, 3 Bland, 89. And tbe Chancellor refers to Camp- bell's case, 2 Bland, 230 ; and Partridge v. Dorsey, 3 H. & Johns. 302 ; Harness v. Chesapeake and Ohio Canal Co. 1 Johns. 248 ; Hoye v. Swan, 2 Md. 237. 80 LAW OF HIGHWAYS. [CHAP. II, which our ancestors, in framing our Constitution, intended to secure to themselves and their posterity, effectually and forever."^ § 88. There are no instances in which private proj)erty of any denomination can be taken by State authority for the mere purpose of raising a reveniie (unless in the regular mode of taxation);^ and an assumption of power to that extent would be entirely destructive of individual right, and anni- hilate, at the pleasure of the State, all distinctions between meum and tuum. Therefore, canal commis- sioners, who are authorized by the legislature to take water enough from a watercourse for canal naviga- ' tion, have no authority, for the purpose of creating hydraulic power, to sell or lease the surplus water for the benefit of the public revenue. Although, in conducting the water to the canal through a feeder, the State agents must necessarily exercise a discretionary power, yet the water can only be taken by them for , canal purposes ; and if taken and rented to an indi- vidual, no title would pass against the riparian owners entitled to it by law.^ § 89. Lots bounding upon a river, and immediately below a State dam erected for the use of a canal, w^ere sold by the New York commissioners of the land-office as water lots bounding upon the river; and it was held, that the purchaser of such water lots was entitled to the water privileges connected with such lots at the time of the sale, by the natural flow of the surplus water over the State dam, so far " Per Mr. J. Green, in Crenshaw v. Slate River Co. 6 Rand, 245. " See ante, as to taxation, § 77. ^ Bucltinghani v. Smith, 10 Ohio, 288. CHAP. 11.] OF THE PUBLIC USE. 81 as they could be used -without interfering with the right of navigation; and that the State officers could not afterwards lease such surplus waters, and author- ize the lessee to prevent them from flowing over the dam, to the injury of the water privileges connected with the water lots thus sold. The language of the Court in the appeal of this case was : " The govern- ment has the power under the Constitution to ap- propriate the private property of its citizens, just so far, and no further, than is necessary for the purpose and object of the appropriation ; and that may be an absolute and exclusive right to land or water, or it may be a partial or common or usufructuary right, according to the nature of the property or the cir- cumstances of the case. But when such purpose is accomplished, the right of the State is exhausted, and the whole of the residue of the property, what- ever it may be, belongs to the citizen." ^ § 90. So, canal commissioners are not authorized to dispose of the water power of a stream to persons who have been injured by the canal, to pay them for their damages ; ^ and where the mill of a person is likely to be injured by a dam erected above it to supply a canal feeder, the canal commissioners have no power to dig a race across another person's land, without consent, to conduct the water from the feeder to the mill-owner, and so compensate him for his loss ; and, if a threat is made to dig such a race, an injunc- tion will lie.^ ' Variok v. Smith, 5 Paige, 137, and on appeal, 9 Paige, 547. And see Harris v. Thompson, 9 Barb. 350. ' M' Arthur v. Kelley, 5 Ohio, 84. » Ibid. 82 LAW OF HIGHWAYS. [CHAP. II. § 91. Although in Ohio the law authorizes canal commissioners to dispose of the water for hydraulic purposes, with a view to raise a revenue to aid in defraying the expense of the canal, still this relates only to the water which is necessary for the naviga- tion of the canal, and which can be used for no other purposes without interfering with the navigation. It does not authorize them to receive a surplus quantity of water into the canal, that they may dis- pose of it; for the reason that private property can only be taken by the legislature or its agents when necessary for the promotion of the public welfare, it being in that case necessary to make compensation.^ § 91a. The doctrine that a railway is but an im- proved kind of highway has been by the Courts applied in this connection to such an extent as to render the inquiry, to what possible uses does the taking of the land in question for a highway, subject it in the future ; of importance in estimating the compensation for the original taking. The question has been much discussed and variously decided in the cases where railway companies have been author- ized to construct their tracks upon the highway; the earlier decisions held that this was a new use not contemplated in the original taking for a high- ' Cooper V. Williams, 3 Ohio, 244. So where one under license from a canal company proposed to spring an arch over the canal and erect a building several stories high touching the house and shutting up the windows of complainant. Burnet v. Johnson, 15 N. J. 481. In this case it is said " two classes of rights originating in necessity, spring up coeval with every highway : the first relates to the public passage ; the second, equally perfect, but subordinate to the first, relates to adjacent owners. Among the latter is that of receiving from the public highway light and air," which, for want of a better term is called the " right of adjacency.'' Ibid. CHAP. II.] OF THE PUBLIC USE, 83 way.^ Subsequently the Courts, giving to the propo- sition that this is but a new and improved kind of highway the most extended interpretation, held that the occupation for a railroad was a legitimate use of a like character as the original easement, acquired by the public, which was included in the original taking, and for which no additional compensation could be claimed by the owner of the fee ; and this is still the rule in some States, but generally the rule in the United States allows compensation in such cases. In Williams v. New York Central Railroad Company,^ the Court reversing on appeal, the decision of the same case in Supreme Court supra, recognize the distinction between the use for a highway common to all the public, and a railway, and held that the dedication of a way to public use, as a highway, does not authorize a railroad company to take it for their track, without compensation to the owner of the fee, even with the consent of the legislature and the municipal authorities, and this upon the ground that the public easement in land dedicated or taken for a highway is for all purposes as a street or way, common to all, and that the use of the street for a railroad is a different use not contemplated in the idea of an ordinary highway, and an additional bur- den upon the land. In this case the street was taken for a railway operated by steam, and its use as such was held to exclude the public from any use and enjoyment of the street in the ordinary way. In the case of Morris and Essex Eailroad Company ' Vfaterloo v. Auburn & Rochester Railroad Co. 3 Hill, 567. ' Williams v. New York Central Railroad Co. 16 N. Y. 97. 84 LAW OF HIGHWAYS. [CHAP. 11. V. Newark,^ a grant for the concurrent use of street by the railroad and the pubHc is distinguished from a grant for the exclusive use of the railroad com- pany. In Ohio, in Chagrin Falls, &c. Plank Eoad Company v. Cave/ the highway was taken by the corporation for a plank road without compensation to the owners of the fee, and the public easement in the land occupied by the highway is said to be acquired for a definite purpose, and the use by the plank road company is held to be the same, the dif- ference being only in the mode of levying the tax for expense of making and keeping in repair, and such is the general doctrine as to plank and turnpike roads. In the same State, in Parrott v. Cincinnati, Hamilton and Dayton Eailroad Company,^ it is held that the owner of land adjoining a highway taken by the company for the construction of its road, is entitled to compensation for the obstruction to the street by the embankments, &c. affecting its use as appurtenant to his land, but not for discomforts from the ordinary operation of the railroad, as smoke, noise, &c. And again, in Street Eailway v. Cum- minsville,* it is held that the street or highway can- not be taken without compensation to the owner of the soil, upon the ground as stated in the opinion that the right of the adjoining land owner in the highway is a right of property which cannot be taken away from the owner without compensation. * Morris and Essex Eailroad Co. Newark, 3 Stockton, 352. ' Chagrin Falls &c. Plank Railroad Co. v. Cave, 2 Ohio, 419. ' Parrott v. Cin. Ham. and Dayton Eailroad Co. 10 Ohio, 624. * Street Eailway Co. v. Cumminsville, 11 Ohio, 524. CHAP. II.] OF THE PUBLIC USE. 85 In Tate v. Ohio and Mississippi Eailroad Company,^ and in Haynes v. Thomas,^ it is held that the right which the owner of a lot adjoining the street has to the enjoyment and use of the street is part of his property and cannot be taken from him without compensation. In the case of Inhabitants of Spring- field V. Connecticut River Eailroad Company,^ Chief Justice Shaw, speaking of the claim that the use for railway is included in the use for a common high- way, says, " The two uses are almost, if not wholly, inconsistent with each other, so that taking the highway for a railway will nearly supersede the former one, to which it had been legally appropri- ated. The whole course of legislation on the sub- ject of railways is opposed to such a construction." This was the case of a railroad operated by steam power. But in Commonwealth v. Temple,'^ which was an indictment for wilful obstruction of a car of a horse railroad company, the same chief magistrate holds that the occupation of the streets by the horse railroad company is a new and peculiar use of the highway itself, to which the former right of the public is to be adapted, and applies to the case the general rule and law of the road, that each party shall observe the conditions necessary for safety, under the circumstances. In New Jersey, in Starr v. Camden and Amboy Railroad Company,* ' Tate V. Otio and Miss. Eailroad Co. 7 Porter, 479 ; Haynes v. Thomas, Id. 38. ' Inhabitants of Springfield v. Connecticut Kiver Railroad, Co. 4 Cush. 63. ' Commonwealth v. Temple, 14 Gray, 69. * Starr v. Camden and A. Railroad Co. 4 Zabris. 593. 86 LAW OP HIGHWAYS. [CHAP. 11. it is held that a railroad company cannot take a high- way for its track without compensation to the land owner. That is also the case of a steam railway. And again, in Mahon v. New York Central Eailroad Company,^ the occupation of a turnpike road by a railway operated by steam power is held to be a new and a different use inconsistent with the former public right ; but, in People v. Law,^ it is doubted whether the taking a street for a horse railroad is such a taking to a different use as to entitle the land owner to additional compensation; and in Brooklyn Eailroad Company v. Coney Island Rail- road Company,^ it is held that the building and use of a horse railroad in the streets of a city is merely a mode of exercising the public right of travel and not an appropriation of the property of the owners of the land requiring compensation ; and so in Peo- ple V. Kerr,* the Court held that no compensation in such case is to be made to the municipal corpora- tion of New York who hold the fee in the streets, and also say that it is immaterial upon that question whether the city or individual owners hold the fee, it is alike holden to the ordinary public uses of a highway. And the Courts almost uniformly and without hesitancy recognized the doctrine that the taking a highway for a plank or turnpike road by a corporation authorized and required to maintam and keep the same in repair and collect tolls, is but ' Mahon V. New York Central Railroad Co. 24 N. Y. 660. ■ People V. Law, 34 Barb. 494. " Brooklyn City Railroad Co. v. Coney Island Railroad Co. 35 Barb. 364. * People V. Kerr, 37 Barb. 358. CHAP. 11.] OF THE PUBLIC USE. 87 another mode of exercising the public easement in the land. In "Wager v. Troy Union Eailroad Com- pany,^ the Court reaffirms the decision in Williams V. New York Central Eailroad Company and Mahon V. Same, ubi supra, and also in Carpenter v. Oswego and Syracuse Railroad Company,^ and say that any consideration that the actual use by the railroad company may not be such as to exclude the public ; and the interruption of the public easement with cars propelled by horse power in the street, might be very trifling and of no practical consequence to the public at large, cannot affect the question of right of property or of the increase of the burden upon the soil. A proposition perhaps not essential to the decision of that case, since the opinion shows substantially an appropriation of the whole street for railroad purposes, by the construction of eight tracks in the street with sixteen rails, and a virtual -exclusion of the public from travel therein by any other mode of conveyance than the cars of the com- pany. In Pennsylvania, it is held that the damages in such cases are merely consequential and that the land o.wner is entitled to no compensation therefor, unless it is specially provided for in the charter of the company.^ In Connecticut, it is held that the railroad company by laying their track upon the • Wager v. Troy Union Eailroad Co. 25 N. Y. 526. ' Carpenter v. Oswego and Syracuse Railroad Co. 16 N. Y. 97. ' Philadelphia and Tuenton Eailroad Co. 6 Warton ; Monongahela Nav. Co. V. Coon^, 6 Watts & S. 101 ; Henry v. Pittsburg and Alleghany Bridge, 8 Watts and S. 85. Commonwealth v. Erie and N. W. Eailroad Co. 27 Penn. St. 339 ; Imlay v. Union B. and Eailroad Co. 26 Conn. 249. 88 LAW OF HiiSHWAYS. [CHAP. H. land before subject to the servitude of the highway are subjecting it to an additional servitude for which the owner is entitled to compensation. And in Missouri, in Williams v. Natural Bridge Plank Road Company,^ it is held that the land owner is entitled to compensation upon the conversion of a plank road into a railway over his land. In Ramsden v. The Manchester S. J. and Atlantic Railway/ it is decided that a railroad has no right to tunnel under a highway without making previous compensation to the land owner, and the same rule followed in other English decisions. The general current of the later Ameri- can decisions is in accordance with the English law and the doctrine of Williams v. New York Central Railroad Company, supra.^ ' Williams v. Natural Bridge Plank Koad Co. 21 Mis. 580. ' Ramsden v. Manchester S. J. and A. Railway, 1 Exch. 723. ' The cases cited and instances of its application are chiefly cases of railroads constructed for the use of locomotive engines and cars, and from the very nature of their construction exclude the idea of any use by the public generally in the ordinary mode of using a common high- way. The application of the same rule to horse railroads operated in the streets and highways is not so general and seems not to be consistent with the almost universally accepted rule in cases of plank and turnpike roads, and upon the reason of the thing there seems not to be the same ground for' holding a street railway, with a single track, on the same grade with the original roadbed, operated by horse power to be such an additional burden as to entitle the owner of the fee to compensation as exists for holding the like in case of a turnpike road. But if we apply the distinction suggested in Mocris and Essex Railroad Co. v. New- ark, supra, between the exclusive use of the site of the highway by the railway and a concurrent use by them and the public which leaves the old highway substantially to its original modes of use and say that the land owner is entitled to the additional compensation only in cases where the newly granted franchise, either from the kind of structure or the character and extent of the use authorized, is inconsistent with the pub- lic use of the highway in the ordinary modes, so as to make a new use and thus destroy the existing easement, the question is relieved of some CHAP. .II.] OF THE PUBLIC USE. 89 5. Corporate Franchises. § 92. A portion of, or even the whole of, a corpo- rate franchise, may be condemned and taken for pubHc iise; for although the charter creating it is a contract between the State and the persons or company to whom it is granted, yet, like all private of its difficulties. The case of Street Railway v. Cummingsville, supra, is decided upon a special finding that the proposed construction of the railroad track will be an obstruction to the convenient access, &c., and upon the facts in Wager v. Troy Union Railroad Co., eight tracks laid iu the street with sixteen rails, would seem to warrant putting the case upon the ground that the use by the company excluded the public from the use of the highway, but it was not. This distinction has not, however, been generally recognized by the Courts in discussing the subject. In the cases, Craig v. Rochester City, &c. Railroad Co. 39 Barb. 494, and Peo- ple V. Kerr, 27 jST. Y. 188, revising on appeal the decision, 37 Barb., it is said that the character of the motive power does not affect the question, to which it seems there can be no objection upon principle, so long as the character of the structure and the original use for a common roadway remains. And the discussion of the question in these cases turns mainly upon the kind of motive power commonly used upon the two classes of railroads. In a subsequent case in Connecticut Superior Court, Elliott V. Fairhaven, &o. Railroad Co. 32 Conn. 679, Mr. Justice Ellsworth dis- cusses at length the distinction between the two kinds of railways and holds that the previous decision in Imlay v. Union Bridge Railroad Co. supra, was not intended to apply to horse railroads built at the ordinary grade of the highway. In Wisconsin, it is held that the location of a railroad upon the highway is an additional appropriation of the estate. Ford V. Chicago and Northwestern Railroad Co. 14 Wis. 609 ; Pomeroy V. Chicago and Milwaukee Railroad Co. 16 Wis. 640; but these are cases of steam railways. And in Minnesota, Schurmier v. St. Paul and P. Railroad Co. 10 Minn. 82, the dedication of land for a street does not au- thorize the legislature to appropriate it for a railroad without compensa- tion to the owner, and the attempt may be restrained by injunction. In Sixth Avenue Railroad Co. v. Kerr, 45 Barb. 138, it is said that a Rail- road corporation by acquiring a right to construct its road across a high- way, does not destroy or impair the public easement. The perfect and unqualified right of every citizen to pass over the road remains as be- fore ; and the grant of a right to cross involves a right to pass over a larger portion of such road, when the legislature so directs. 90 LAW OF HIGHWAYS. [CHAP. H. rights, it is subject to the right of eminent domain in the State. This was the doctrine established by the Supreme Court of the United States, in the case of West Kiver Bridge Company v. Dix,^ in which a distinction is made between the power of a State to resume a charter under the power of appropriation, and the pecuhar privilege hona fide exercised by the State to apply it to the benefit of the commu- nity. The plaintiffs in error were made a corpora- tion by the legislature of Vermont, and, by the act of incorporation, had granted to them the exclusive privilege of erecting and maintaining a bridge ^ over West Eiver, with the right of taking tolls ; and the franchise, which was to continue one hundred years, had not yet expired. The property of the plaintiffs, both realty and franchise, was appraised, and due provision made for compensation to the full value of the same ; and the decision of the Court was in accordance with the maxim, — Saluspopuli suprema lex. It has been held in New Hampshire, that in the exercise of the power of eminent domain, the track and property of one railroad^ may be taken for the use of another, provided the public interests demand it.* The act of the legislature of Vermont, ' West River Bridge Co. v. Dix, 6 How. 507 ; Boston and Lowell Railroad v. Salem and Lowell Railroad Co. 2 Gray, 1 ; Central Bridge Corporation v. Lowell, 4 Gray, 474 ; Miller v. New York and Erie Rail- road Co. 21 Barb. 513 ; Red River Bridge v. Clarksville, 1 Sneed, 176 ; Crosby v. Hanover, 36 IST. H. 404 ; State v. Noyes, 47 Maine, 189 ; State V. Canterbury, 8 Foster, 195; Branson o. Philadelphia, 47 Penn. 329. • See ante, § 35. ' See ante, § 17. ' Northern Railroad u. Concord and Claremont Railroad, 7 Foster, 183. CHAP. II.] CORPOKATE FRANCHISES. 91 passed in 1839, authorizing the Supreme and County Courts to take the franchise of a turnpike corpora- tion ^ for a public highway, has been held to be constitutional, provided, of course, compensation be made to the turnpike company.^ The doctrine, indeed, has widely prevailed in this country.^ § 93. An exclusive franchise may be said to be taken, within the meaning of the prohibition to take private property for public use, without compensa- tion, when the owner is deprived of the power of exercising it ; and it is immaterial how the State deprives him of it, whether directly, or indirectly, or consequentially} Any serious interruption to its common and necessary use, is equivalent to the taking of it ; as if a corporation is created by the legislature for the purpose of constructing a canal, if there be no compensation provided for the dis- charge of the water upon the lands of others, they are entitled, in an action on the case, to recover ' See ante, § 8. = Armington v. Barnet, 15 Vt. 745 ; White River Tump. Co. 21 Vt. 590. ' Boston Water Power Co. v. Railroad Co. 23 Pick. 360 ; and see 16 lb. 512; White River Co. v. Vermont Central Railroad Co. 21 Vt. 598 ; Miller V. New York and Erie Railroad Co. 21 Barb. 513; Bonaparte, Camden and Amboy Railroad Co. 1 Bald. 222; Tuckahoe Canal Co. v. T. and J. River Railroad Co. 11 Leigh, 42 ; Enfield Bridge Co. v. Hart- ford and New Haven Railroad Co. ] 7 Conn. 40 ; Armington v. Barnet, 15 Vt. 745 ; lb. 446 ; Lexington and Ohio Railroad case, 8 Dana, 289 ; Pierce v. Somersworth, 10 N. H. 370 ; 11 lb. 20 ; Piscataqua Bridge Co. V. New Hampshire Bridge Co. 7 N. H. 85, 66 ; Barber v. Andover, 8 N. H. 398 ; White River Railroad Co. v. Vermont Central Railroad Co. 21 Vt. 590, and 1 Am. Railway Cases, 233 ; Old Colony Railroad Co. V. Plymouth, 14 Gray, 155 ; Grand Junction Railroad v. Co. Com'rs. 14 Gray, 553. * Hamilton Avenue (Matter of), 14 Barb. 405 ; Hooker v. Railroad Co. 15 Conn. 818. 92 LAW OP HIGHWAYS. [CHAP. H. damages for an injury sustained by such discharge.^ In the Court of Errors of New York, it was dis- tinctly laid down, that the State had not the right, without making or providing for compensation, to damage the property of riparian owners upon rivers above tide-water, by making waters navigable which were not so by nature ; or in appropriating the water of such rivers to the public use by artificial erec- tions.^ By the spirit and meaning of both the con- stitution and the canal acts of that State, if an individual be consequentially injured by the erection of a dam under the authority of the legislature, with a view to afford water to a canal, he is entitled to compensation for the injury sustained equally as though his property is directly taken.^ An action lies by the owner of land against a railroad company, if, in the construction of their road upon, or across a public highway, they raise an embankment, by which the owner of the land is obstructed in pass- ing to and from the road, and his property is ren- dered otherwise less valuable ; notwithstanding the charter of the company authorizes the entry upon, and use of, such public highway, the license relates only to the road, and leaves the company liable to consequential damages sustained by indi- viduals.* § 94. But it has been, on some occasions, a ques- tion of very considerable nicety, as to what has ' Hooker, &c., ub. sup. ; Kowe v. Granite Bridge Co. 21 Pick. 348. ' Canal Commissioners u. People, 5 Wend. 423; and see People v. Piatt, 17 JoHns. 135 ; Hudson and Delaware Canal Co. v. New York and Erie Railroad Co. 9 Paige, 323. " People V. Canal Appraisers, 13 Wend. 355. * Fletoher v. Auburn and Syracuse Railroad Co. 25 Wend. 462. CHAP, n.] COEPOllATE FRANCHISES. 93 amounted to a legal infringement of privileges granted to incorporated companies. The proprie- tors of a toll-bridge applied for an injunction to restrain the construction of another bridge over the same arm of the sea, as it would injuriously affect the' tolls of the first bridge ; and the Court, after hearing elaborate arguments of counsel, and upon very great deliberation, dismissed the bill, the Judges being equally divided.^ The case was then brought to the Supreme Court of the United States,^ where the decree of the State Court was affirmed, Mr. Justice Story and Mr. Justice Thompson dissenting. The opinion of the Court, delivered by Taney, C. J., was grounded upon the consideration, that the end of all government is to promote the prosperity of the community by which it is established, and that it should never be assumed to be the intent of gov- ernment to diminish its power of accomplishing the end for which it was created ; this was peculiarly so in this country, free, active, and enterprising, and in which new channels of communication were daily found necessary, both for travel and trade, and for the essential welfare of the community at large. The learned Judge pronounced, that the continued existence of government would be of no great value, if, by implications and presumptions, it was to be disarmed of the powers requisite to accomplish the ends of its creation, and if the functions it was de- signed to perform, were to be transferred to. the hands of corporations; while the rights of private property were to be regarded, those of the commu- ' Charles River Bridge v. Warren Bridge, 7 Pick. 344. ' 11 Peters, 420. 94 LAW OF HIGHWAYS. [CHAP. n. nity should not be disregarded.^ The statute of the State of Massachusetts of 1786, as to the selectmen assigning limits to the surveyors respectively, is not contrary to the bill of rights of that commonwealth ; which has never been construed to give a right to compensation for an indirect or consequential dam- age, or expense, resulting from the right use of property, already belonging to the public.^ § 95. The bridge case above referred to, estab- lishes the doctrine, that a State law creating a franchise which may rival and diminish the profits of a pre-existing one, established under a prior law, which does not grant an exclusive privilege, does not violate the obligation of any contract. So, too, in Lansing v. Smith,^ it was decided, that the grant of a wharf, under an act of the legislature, which conveys a franchise, does not impair the power of the legislature to make a second grant to construct a wharf in the same vicinity, which shall essentially diminish the profits and impair the privileges of the prior one ; and that the loss sustained by the pro- prietor of the wharf first constructed, is damnum ' The same view of the law governed the decision of the Court in Mohawk Bridge Co. v. Utica and Schenectady Railroad Co. 6 Pain-e, 554 ; and see Dyer v. Tuscaloosa Bridge Co. 2 Port. 296 ; Hartford Bridge Co. v. East Hartford, 16 Conn. 150. » Callender v. Marsh, 1 Pick. 417. In 1838, the legislature of the territory of Iowa, authorized one F., his heirs and assigns, to establish and keep a ferry across the Mississippi River, at the town of Dubuque, for the term of twenty years ; and the act of the legislature declared, that no Court, or Board of County Commissioners, should authorize any person, unless upon F.'s failure to comply with certain requirements, to keep a ferry within the town of Dubuque ; the act did not give an ex- clusive right to a ferry within the limits of that place. Fanning v. Gregoire, 16 How. 524. " Lansing v. Smith, 4 Wend. 3 ; Fuller v. Edings, 11 Rich. 239. CHAP. II. j CORPORATE FRANCHISES. 95 absque injuria, for which no action hes. Whether a second grant for the same action is in violation of the first grant or not, must depend upon circum- stances. If the sole object of the second grant is to promote individual interests, or if it is not called for by the public wants, it would be unjustifiable, and ought not to be made. But it is otherwise where the public good calls for new grants. This was the general doctrine laid down by the Court, in the matter of Hamilton Avenue,-^ in which it was held, that the legislative authority conferred to grant one bridge over a certain creek, did not warrant the presumption that the legislature intended that there should be no other over a stream of considerable extent, and passing through a region of country soon to become a part of a crowded city ; though a grant may be exclusive, when it is expressly de- clared to be so, or where some general term is used which comprehends the entire privilege. It may, indeed, be considered as entirely settled in the State of New York, that the apprehended damage which a toll-bridge may sustain, in a diminution of their tolls, by a diversion of the travel from their bridge to a public avenue authorized to be opened, is not a grievance that is entitled to redress, if the statute cre- ating the franchise does not confer an exclusive right.^ § 96. In relation to a corporate franchise, the dis- tinction is between a grant that is clearly intended to be of an entire and exclusive privilege, and an ' Hamilton Avenue (Matter of), 14 Barb. 405. ' Thompson et al. v. New York and Harlem Railroad Co. 3 Sand. 625 ; Mohawk Bridge Co. v. Utica and Schenectady Railroad Co. 6 Paige, 554 ; Oswego Falls Bridge Co. v. Fish et al. 1 Barb. 547. 96 LAW OF HIGHWAYS. [CHAP. H. implied grant of such privilege, or one sought to be implied.^ Terms may undoubtedly be used in a grant sufficiently comprehensive, and in reference to the object of it, to embrace an exclusive privilege ■which cannot be invaded without compensation. If the legislature should grant an exclusive right to erect a toll-bridge within certain limits, it cannot authorize, without provision for compensation to the grantees, the erection of another bridge within those limits.^ In New Hampshire, an action will lie against the selectmen of a town, for laying out a highway merely for the purpose of enabling travellers to evade the payment of toll at a turnpike gate.^ But still, if the public convenience should require that a road be laid out to a turnpike, it can lawfully be. done, although it may enable passengers to evade the payment of toll.* § 97. In the matter of the Flatbush Avenue, in ^ Furraan Street (Matter of), 17 Wend. 649 ; "White Eiver Turnpike Co. V. VeVmont Central Railroad Co. 21 Vt. 590 ; and 1 Am. Railway Cases, 233 ; Hooker v. New Haven and Northampton Co. 14 Conn. 146 ; Enfield Toll-Bridge Co. v. Hartford and New Haven Railroad Co. 17 Conn. 454 ; Hatch v. Central Railroad Co. 25 Vt. 49 ; Lynch v. Mallory, 4 Denio, 356 ; and see Stourbridge v. Canal Co. 2 Barn. & Adol. 792. " Piscataqua Bridge Co. v. New Hampshire Bridge Co. 7 N. H. 35. An exclusive right to erect a toll-bridge with an obligation on the part of the grantee to maintain it " fit for ordinary carriages " is not infringed by a legislative grant of a right to build a railroad bridge. MoLeod v. Savannah, &o. Railroad Co. 25 Geo. 445 ; Bridge Co. v. Hoboken Land Imp. Co. 10 N. J. 81 ; S. C. 1 Wallace, 116. Whether such an exclu- sive right or privilege is forfeited or waived, by the corporation in appropriating their bridge to the use of a railroad, quaere. President, Managers, &c. v. Trenton Bridge Co. 10 N. J. 57. ' Proprietors of Third Turnp. v. Champney, 2 N. H. 199; Cheshire Turnpike v. Stevens, 10 N. H. 133. ' By Richardson, Ch. J., in Proprietors of Third Turnp. Co. ul. sup. CHAP. II.] CORPORATE FRANCHISES. 97 the city of Brooklyn,' it appeared, from the report of commissioners respecting the opening of an ave- nue, that such avenue crossed a public turnpike road at two distinct points, and thus opened a road where- by travellers could avoid the toll-gate of the com- pany, and thereby materially injured the value of the franchise. For this injury the commissioners had awarded to the company no damages, and had awarded only two small sums for the damage arising from taking the road for the avenue, and had assessed them an equal amount for the expense of opening the avenue. The Court refused to confirm the re- port ; and it was adjudged, that the franchise which a turnpike company obtains from the legislature, by its act of incorporation, is as much the subject of value to the company, as the private property of any individual ; and that such company have as clear a right as any person owning land, to be in- demnified for an injury sustained by them in con- sequence of the appropriation of their proj^erty to the public use. The case of Charles River Bridge •was cited by counsel to the contrary ; but Edmonds, J., in giving judgment, said : " If this avenue had . been merely a parallel road with, the turnpiTce, per- haps the doctrine of the Charles River Bridge case might have been applicable. But such is not the case. At two points this avenue invades and takes the land which the company had obtained under their act of incorporation ; and thereby the com- pany is brought directly within the statute under which the commissioners have proceeded, and which directs them to estimate the damage to be sustained * Flatbush Avenue (in the Matter of), 1 Barb. 286. 7 98. LAW OF HIGHWAYS. [CHAP. II. by the owners of such lands and buildings as may be affected by the improvement." The learned Judge considered, that the case of the Seneca Koad Company v. The Auburn and Eochester Railroad Company/ was decisive of the point, that the turn- pike company in question was entitled to recover the damage which it had actually sustained. § 98. If a turnpike company complete their road, and put the same in use, and erect a toll-gate thereon opposite the land of A, and A opens a road on his own land parallel to, and adjoining the turnpike road, so that the same is passable for travellers, and is used by them to avoid the toll-gate, a court of equity has power to order A's road to be closed.^ § 99. A case of claim for damages, for remotely consequential damage, is that of Gould v. Hudson Eiver Railroad Company.^ The defendants, in this case, it appeared, (under, and in pursuance of, their charter, authorizing them to construct their railroad from New York to Albany,) entered upon the Hud- son River, in front of the plaintiff's farm, and be- tween the ordinary high and the ordinary low water mark, raised a line of solid embankment across the whole river, in front of said farm, about five feet in height above the ordinary high-water mark, and formed a barrier to the passage of vessels, boats, &c. through the same, and laid a railroad track upon ' Seneca Road Co. v. Auburn and Eochester Eailroad Co. 5 Hill, 170. " Auburn, &c. Plank Road ti. Douglass, 12 Barb. 55.1. ' Gould V. Hudson Eiver Eailroad Co. 12 Barb. 616; 2 Selden, 522. CHAP. II.] CORPORATE FRANCHISES. 99 such embankment, and ran their cars thereon ; and this without the consent of the plaintiff, and without making or tendering any compensation for damage sustained thereby. It was held, that the legislature had not transcended their authority in making the grant (the State owning to high-water mark) ; and that the defendants were authorized to do the acts complained of, the plaintiff not having sustained any injury which was actionable. § 100. Again, where a municipal corporation, un- der an authority contained in its charter, grades and levels a street, an action will not lie by an adjoining owner, whose lands are not actually taken, for con- sequential damages to his premises, there being no want of care or skill in the execution of the work, and no provision in the charter for damages of that sort ; because an act done by lawful authority, if done in a proper manner, will not subject the party doing it to an action for the consequences. The corporation of the city of Brooklyn regularly laid out and opened a street, and afterwards proceeded to grade the street for public use, and in thus doing, removed a high bank which constituted a natural support to the premises of an adjoining owner, so that a portion of his land fell. It was held, that the adjoining owner could not maintain an action on the case for the damage sustained by him.^ ' Radcliff's Ex'rs v. Mayor, &c. of Brooklyn, 4 Comst. 195. In Thurston v. Hancock (12 Mass. 220), the plaintiif had built a valuable house on Beacon Hill, in Boston, one side of the house being within two feet of the side of his land, and had taken the precaution to sink his foundation fifteen feet below the ancient surface of the ground. Seven years afterwards, the defendant commenced digging and carrying away the earth from his adjoining land, and dug to the depth of from thirty * 100 LAW OF HIGHWAYS. [CHAP. 11. 6. Provision for Mode of Indemnity, and Proceed- ings under it. § 101. The legislature, in the exercise of its au- thority of taking private property, is not solely, by itself, to fix the amount of compensation to be awarded to the owner. This can constitutionally be ascertained, fixed and awarded only in three modes ; first, by a mutual stipulation between the legislature or its agents, and the proprietor; sec- ondly, by commissions mutually agreed on ; and, thirdly, by the intervention of a jury, or other mode equally equitable,- as by commissioners or appraisers appointed by law. The government is clearly bound to provide some tribunal for indemnity, before which each party may meet and discuss their claims on equal terms ; ^ and herein is the important consti- tutional guard, and the proper degree of restraint upon the exercise of legislative authority on such occasions.^ The damages, of course, are to be esti- to forty-five feet below the natural surface of the ground ; by reason of which the foundation of the plaintiff's was rendered insecure, and he was obliged to take his house down ; yet it was held, that no action lay for the injury to the house. A similar decision was made in Lasala v. Hobrok, 4 Paige, 169. For a valuable collection of the authorities as to what a man may and may not do in the enjoyment of his own property, assuming that he acts with due care and proper skill, see the opinion of Ch. J. Bronson, in EadcliflF's Ex'rs, &c. ub. sup. Owners of lots adjoin- ing on made streets are not entitled to damages occasioned by the estab- lishment of grade, if reasonable and proper. Crawford v. Delaware, 7 Ohio, 459. See Goodall v. Milwaukee, i Wis. 32 ; Street Railway v. Cumminsville, 14 Ohio, 523. " 2 Kent, Comm. 339, note. ' Van Home's Lessee v. Dorrance, 2 Dallas, 313 ; Beekman v. Sara- toga and Schenectady Railroad Co. 3 Paige, 45 ; Pennsylvania Railroad Co. V. Heister, 8 Barr, 445 ; Wyman v. Lexington and West Cambridge CHAP. II.] PKO VISION FOR MODE OF INDEMNITY, ETC. lOX mated by persons who have previously expressecK^< no opinion.^ § 102. The trial by jury, as generally secured by a State constitution, is applicable to trials of issues of fact in civil and criminal cases in courts of jus- tice, and has no relation to assessments of damages sustained by owners of property taken for public uses.^ Accordingly, the legislature of a State may (as has long been the practice) direct the mode of ascertaining damages, either by a jury or by commis- sioners.^ The Constitution of the State of New York provides that assessments for damages for property taken for public uses shall be made by a jury or commissioners, "as shall be prescribed by law " ; and the Courts of the State, hold, that no Railroad Co. 13 Met. 316 ; Moj'se v. Boston and Maine Railroad Co. 2 Cush. 536 ; Walker t'. Boston and Maine Railroad Co. 3 Cush. 91 ; Fitchburg Railroad Co. v. Boston and Maine Railroad Co. 3 Cush. 58 ; Field V. Vermont and Massachusetts Railroad Co. 4 Cush. 450; Vermont Central Railroad Co. v. Baxter, 22 Vt. 365 ; Nashville, &c. Railroad Co. V. Concordia, 11 Humph. 449; Baltimore Turnpike ease, 5 Binn. 481; Armstrong v. Jackson, 1 Blackf. 374; Haight v. Morris Aqueduct, 4 Wash. 601 ; Vischer v. Hudson River Railroad Co. 15 Barb. 37. " Lib- erties," says Guizot, " are nothing unless they have become rights, — posi- tive rights formally recognized and consecrated. Rights, even when recognized, are nothing so long as t*hey are not intrenched within guaran- tees. And lastly, guarantees are nothing so long as they are not main- tained by forces independent of them in the limit of their rights. Con- vert liberties into rights, surround rights by guarantees, intrust the keep- ing of these guarantees to forces capable of maintaining, — such are the successive steps in the progress towards a free government." Guizot, on Rep. Gov. 302. ' Redding v. Dilley, 4 Zabrisk. 209. ' Livingston v. Mayor of Brooklyn, 8 Wend. 85. ' Ibid. Bonaparte v. Camden and Amboy Railroad Co. 1 Bald. 222 ; Willyard v. Hamilton, 7 Ham. 112; M'Masters v. Commonwealth, 3 Watts, 292 ; Bloodgood v. Mohawk, &c. Railroad Co. 14 Wend. 51 ; S. C. 81 Wend. 9. 102 LAW OF HIGHWAYS. [CHAP. II. .law prescribing such method having been passed since the Constitution, the board of supervisors should proceed to assess such damages according to the law previously in existence, until the legislature should prescribe a different mode under the Consti- tution ; and that a mandamus would lie, on the rela- tion of the owner of the land so taken.-' An act of the State of New Jersey, incorporating a railroad ' People V. Supervisors, 3 Barb. 332. Duty of Commissioners, by tbe General Railroad Law of New York : mode, proceedings, and compensa- tion to be awarded, — their report, § 16. The commissioners shall take and subscribe the oath prescribed by the twelfth article of the Constitu- tion. Any one of them may issue subpoenas, administer oaths to wit- nesses, and any three of them may adjourn the proceedings before them from time to time, in their discretion. Whenever they meet, except by the appointment of the Court or pursuant to adjournment, they shall cause reasonable notice of such meetings to be given to the parties who are to be affected by their proceedings, or their attorney or agent. They shall view the premises described in the petition and hear the proofs and allegations of the parties, and reduce the testimony, if any is taken by them, to writing ; and after the testimony is closed in each case, and without any unnecessary delay, and before proceeding to the examina- tion of any other claim, a majority of them, all being present and acting, shall ascertain and determine the compensation, which ought justly to be made by the company to the party or parties owning or interested in the real estate appraised by them ; and in determining the amount of such compensation, they shall not make an allowance or deduction on account of any real or supposed benefits which the parties in interest may derive from the construction of the proposed railroad. They, or a majority of them, shall also determine and certify what sum ought to be paid to a general or special guardian or committee of an infant, idiot or person of unsound mind, or to an attorney appointed by the Court to attend to the interest of any unknown owner or party in interest, not personally served with notice of the proceedings, and who has not ap- peared, for costs, expenses, and counsel fees. They shall make a report to the Supreme Court, signed by them or a majority of them, of the pro- ceedings before them, with the minutes of the testimony taken by them, if any. Said commissioners shall be entitled to three dollars for their expenses and services for each day they are engaged in the performance of their duties, to be paid by the company. CHAP. II.] PROVISION FOR MODE OF INDEMNITY, ETC. 103 company, providing for the assessment of damages to the owners of land through which it passes, and appointing commissioners, instead of a jury, to esti- mate the damages, was held to be constitutional.^ By a long course of legislation in the State of New Hampshire, the damages occasioned by the laying out of highways were to be assessed by the Court, or by a committee ; and no provision is found for the intervention of a jury in cases of this character.^ In Massachusetts, where proceedings for the assess- ment of damages by a jury for land taken by a railroad company, are conducted in part by a coro- ner, and in part by the sheriff, it is the duty of each of those officers to certify proceedings.^ § 103. A statute to promote any work for public use, which makes no provision for indemnifying the owner of the property proposed to be taken, is entirely void, as being unconstitutional,* and an in- ' Bonaparte v. Camden and Amboy Railroad Co. Bald. 205. A char- ter of a railroad company, giving them authority to enter upon lands, &c. for their road, provided for the appointment of commissioners " to examine and appraise the said land and to assess damages." The order of the Court appointing the commissioners directed them " to examine and appraise the said lands, and to assess the damages to be paid by the said company for the said lands, so required as aforesaid, pursuant to the pro- visions of the above-recited act." Held, that the order was sufficient. Doughty u. Somerville, &c. Railroad Co. 1 N. J. 442. ' Breckw. Lebanon, 11 N. H. 19. And see Baltimore Turnpike case, 5 Binn. 481 ; Armstrong v. Jackson, 1 Blackf. 374 ; Haight v. Morris Aqueduct, 4 Wash. 601. ' Pittsfield, &e. Railroad Co. v. Foster, 1 Cush. 480. Where a jury summoned to reassess damages for land taken by a railroad, rendered a verdict in which they assessed the damages at a certain sum, " with inter- est thereon from the time when the said railroad company took possession of the land," it was held, that the verdict was void for uncertainty, and that the Court could not alter the same. Connecticut River Railroad Co. v. Clapp, 1 Cush. 550 ; and see Walker v. Boston and Maine Railroad, 3 Cush. 1. ♦ Thatcher v. Dartmouth Bridge Co. 18 Pick. 501. 104 LAW OF HIGHWAYS. [CHAP. H. junction may be obtained to prevent the taking.^ So, an action at law may be maintained, after the damage has been committed.^ In Jennings, ex parted the water of a certain river was diverted from cer- tain hydraulic works by a dam, the right to erect which was claimed under a legislative grant ; and the appraisers, having refused to act, a mandamus was directed to be issued. The assessment of dam- ages by commissioners is not, it is held in New Hampshire, a cumulative remedy, but is a substi- tution of one mode for another, and their decision is final on the merits, subject only to the right of appeal.* § 104. Commissioners are selected with a cautious regard to their fitness to judge (after qualifying themselves in the manner prescribed) of the com- pensation which ought justly. to be made for the land to be taken. They are not, like other tribunals, to be governed exclusively by evidence, but their duty ' Gardner v. Newburgh, 2 Johns. 162; Beekman v. Syracuse and Schenectady Railroad Co. 3 Paige, 45 ; Wheeler v. Rochester and Syra- cuse Railroad Co. 12 Barb. 227. " Stevens V. Proprietors of Middlesex Canal, 12 Mass. 466 ; Sinnickson V. Jackson, 4 Harris, 129 ; Crittenden v. Wilson, 5 Cowen, 165 ; Denslow V. New Haven and Northampton Co. 16 Conn. 98 ; Fletcher v. Auburn and Syracuse Railroad Co. 25 Wend. 462 ; Bloodgood v. Mohawk and Hudson Railroad Co. 14 Wend. 51 ; Aldrich v. Cheshire Railroad Co. 1 Foster, 359. ' Jennings, ex parte, 6 Cowen, 518; and see People v. Supervisors of Westchester, 12 Barb. 466. It seems to have been very well settled by decisions in the State of New York, that Chancery has no power to review, upon the merits, the proceedings of the commissioners of estimate and assessment in opening streets in the city of New York. Whitney v. Mayor, &c. of New York, 1 Paige, 548, citing 2 Caines, 179 ; 16 Johns. 50 ; 1 Wend. 288 ; 20 Johns. 430 ; and see Wiggin v. Mayor, &c. of New York, 9 Paige, 16 ; 6 Paige, 76 ; 8 lb. 655; 26 Wend. 132. * Aldrich v. Cheshire Railroad Co. 1 Foster, 359. CHAP. II.]' PROVISION FOE, MODE OF INDEMNITY, ETC. 105 is to view the premises, as well as to hear the proofs and allegations of the parties. The one duty is not less imperative or important than the other. If, upon appeal, the Court are satisfied that they have not erred in the principles upon which they have made their appraisal, no other error will be sufficient to send the report back for review. Any technical departure from established rules in the admission or rejection of evidence cannot be allowed to affect the appraisal, xmless it appear that the party appealing has been injuriously affected.-^ § 105. Where the owner of the land and the com- pany cannot agree upon the location 'of the crossing, it is the right of such owner to determine where he will have it, and the duty of the company to make it at the place he selects. Such company, if it should select a different location, must make compensation for the difference between the two, to the owner. The owner must exercise his right of selection rea- sonably, with a view to his own benefit and conven- ience, and not capriciously, to injure the company.^ § 106. The value of the land taken for public use, is not restricted to its agricultural or productive qualities, but inquiry should be made as to all other legitimate purposes to which the property could be appropriated ; ^ and a just compensation cannot be less than the owner of the property taken has sus- tained.* It was decided in New Jersey, that in the • Troy and Boston Railroad Co. v. Lee, 13 Barb. 169. ' Wheeler v. Rochester and Syracuse Railroad Co. 12 Barb. 227 ; Wigijin V. Mayor, &c. of New York, 9 Paige, 16. ' Harrison v. Young, 9 Geo. 359; Dickenson v. Fitchburg, 13 Gray, 546. * Hamilton Avenue (Matter of), 14 Barb. 415 ; Commonweath v. 106 LAW OF HIGHWAYS. [CHAP. II. assessment of damages for crossing land by a rail- road, the jury must take into consideration the deterioration in value of the adjacent portions of the same tract, by the proximity of the railroad, either for agricultural purposes, or for sale as build- ing lots, increased risk of an increased care required for family and stock, the risk of fire, the inconven- ience caused by embankments and excavations, and the obstruction to the free use of buildings.^ In White V. Railroad Company, in the Court of Appeals of South Carolina, it was held, that in estimating " loss or damage " by the right of way taken by the Charlotte and South Carolina Railroad Company, the jury may estimate the value of the land occu- pied by the company ; the deterioration of parcels isolated ; the alterations of arrangement required about the homestead ; the loss of time and expendi- ture caused by any increase of care or distance which had been occasioned ; and the injury to the value of the place as a stand for a public house.^ Coombs, 2 Mass. 492 ; Commonwealth v. Norfolk Sessions, 5 Mass. 437 ; First Church in Boston v. Boston, 14 Gray, 214. The origi- nal assessment covers all damages present and prospective from the tak- ing and use of the land. Skinner v. Hartford Bridge Co. 29 Conn. 523 ; Young V. Harrison, 1 7 Geo. 30 ; Dearborn v. Boston, Concord, and Montreal Railroad Co. 4 Foster, 179 ; Clark v. Vt. and Canada Railroad, 28 Vt. 103. As to considerations proper to be taken into consideration in assessing damages, see Howard v. Providence, 6 R. I. 514, and Rob- bins v. Milwaukee and Hor. Railroad, 6 Wis. 636. The expense of fencing is included. Winona and St. Peter Railroad v. Denman, 10 Min. 267. Damage to water-power present and prospective. Dorian v. E. Br. and Waynesburg Railroad, 46 Penn. St. 520. ' Somerville and Eastern Railroad v. Doughty, 2 Zabriskie, 495. — Og- den, J., dissenting, as to risk to family, stock, and by fire. See Yeiser v. Railroad Co. 8 Barr, 366. * White V. Railroad Co. 6 Rich. 47. In Hyde v. Middlesex, 2 Gray, 267, it is held that petitioner is entitled to compensation for steps projecting from CHAP. 11.] PEO VISION FOR MODE OF INDEMNITY, ETC. l07 § 107. In Troy and Boston Railroad Company v. Lee, in the Supreme Court of New York,^ which was his building on the line of the highway as laid out, as he would be liable to indictment if he allowed thera to remain. As to eave-spouts and a bay window projecting over the line, it is said the rule might be different, if at such an elevation as to prevent them from interfering or affecting the use of the highway. In the case of the Petition of Mt. Washington Eoad Co. one of the land-owners was keeper of a hotel, and in receipt of income from letting saddle-horses to those who ascended the mountain by a path he had made to the summit, and it was held that he was not entitled to dam- ages for the probable injury to his business from competition caused by the building of a carriage-way to the summit. 35 N. H. 134. The next of kin entitled to be indemnified for expense of removal and suitably reinterring remains of one buried more than fifty years before. 4 Bradf App. 503. Owners of unimproved lots on unmade street can- not recover damages to improvements caused by fixing grade. Crawford V. Delaware, 7 Ohio (N. S.), 459 ; otherwise if caused by alteration of an established grade. Ibid. ; Goodall v. Milwaukee, 5 Wis. 32. No damages for loss of income from a private wharf, in consequence of the establishment of a public wharf alongside on the owner's land, under an act providing for compensation for the value of land taken and the dam- ages generally to the same. Fuller v. Edgings, 11 Rich. 239. Pros- pective and consequential damages as well as benefits, if plain and appreciable, resulting to the owner of property taken, by reason of the taking, may be considered in fixing the amount of compensation. Young V. Harrison, 17 Geo. 30. And as the inquiry covers all loss and damage resulting to the owner from the taking and public use of his land, the incidental loss which may as the natural consequence thereof, come to the owner of the land, must be included, and whether reckoned or not it will be barred by the appraisal, and accordingly it is held, that compensation for all acts authorized to be done is to be allowed, as dam- age to the remaining land by blasting rocks. Sabin v. Vermont Central Eailroad Co. 25 Vt. 363 ; Dodge v. Co. Com'rs, 3 Met. 380 ; Dearborn v. Boston, Concord, and Montreal Railroad, 4 Foster, 179. But damages by reason of want of skill in execution of the work, or neglect to do what was required to be done should not be included, and subsequent action, therefore, is not bound. Sprague v. Worcester, 13 Gray, 193 ; Carman v. Steubenville, &c. Railroad, 4 Ohio, 399. See also Sabin v. Vermont Central Railroad, supra, where a claim for injury from rocks thrown upon land in blasting is said to be included in the appraisal, but not so, as to the neglect to remove them, for which an action at law is the remedy. 1 Troy and Boston Railroad Co. v. Lee, 16 Barb. 169. 108 LAW OF HIGHWAYS. [CHAP. 11. an appeal in pursuance of the general railroad act of the State (sect. 18), Harris, J., in delivering the opinion of the Court, says : " It appears from the minutes of testimony taken by the commissioners, that the defendant's farm contains about fifty acres, and that the railroad so divides it, as to leave about thirty-five acres on one side, and fifteen acres on the other. Witnesses were called by the defendant to give their opinion as to the amount of damage he would sustain. This kind of testimony was objected to, but received. One witness testified that he would not give so much for the farm by $1,000 as he would if it had not been interfered with. Another estimated the farm to be worth $ 50 an acre, with- o\it the railroad, and $ 20 an acre less, with the rail- road in operation. A third witness thought the farm as it would be, with the railroad running through it, not worth f 20 an acre ; and a fourth thought the farm would be comparatively valueless for farming purposes. These opinions constitute the chief part of the testimony taken. Such testimony, although admissible, is not entitled to great weight. Indeed, it is a departure from a general rule of evi- dence, to receive it at all. ' The whole history of this kind of evidence,' says a distinguished Judge, 'shows that it is separated from incompetency by a very thin partition.' ^ The opinions of witnesses, at the best, are to be received as ' persuasive evi- dence,' and never controlling. In making appraisals of this kind, the true rule, the only rule which will do equal justice to all parties, is to determine what will be the effect of the proposed change upon ' In the Matter of Pearl Street, 19 Wend. 651. Per Cowen, J. CHAP. II.] PROVISION FOR MODE OF INDEMNITY, ETC. 109 the market value of the property. The proper in- quiry is, what is it now fairly worth in the market, and what will it be worth, after the improvement is made ? ' All classes and conditions of men,' says Bronson, J., in the Matter of Firman Street,^ hold their property subject to the paramount claims of the State, and when it is taken for public purposes, and the question of compensation is presented, the only proper inquiry is, what is its value ? The ques- tion is not what estimate does the owner place upon it, but what is its real worth, in the judgment of honest, competent, and disinterested men ? ' And again, he says : ' The proper mode of adjusting the question of damages, is to inquire, what is the pres- ent value of the land, and what will it be worth when the contemplated work is completed ? ' The verdict of a jury is determined by the testimony submitted to their consideration. It is, therefore, the subject of review. It may be presented to the consideration of the Court upon paper. But it is not so in relation to these commissioners of appraisal. The very first thing they are required to do is, to view the premises. Thus, their own senses are made to testify. The information thus acquired, it is im- possible to bring before a Court of Review. The commissioners, too, are selected with reference to their general knowledge, qualifying them to judge discreetly upon the matters submitted to them. Unlike a jury, they are restricted to no peculiar species of evidence, or any peculiar sources of in- formation. They may collect information in all the ways which a prudent man usually takes to satisfy 1 17 Wend. 649. 110 LAW OP HIGHWAYS. [CHAP. U. his own mind concerning matters of the like kind, where his own interests are involved in the inquiry. They may seek 'light from other minds, that they may be the better able to arrive at just conclusions, but, at the last, they must be governed by their own judgment. That judgment is not to be controlled or outweighed by the opinions of any number of wit- nesses. The commissioners have no right to take such opinions, nor indeed any other evidence, as the basis of their appraisal, without exercising their own judgment. They are to hear all the proofs and alle- gations of the parties, as well as to view the prem- ises, as a means of enlightening their judgment, and having done all, they are then to determine, in the free and uncontrolled exercise of that judgment, thus enlightened and thus informed, what award will best dispense equal justice to all the parties. When the original jurisdiction is to be exercised in this manner, it is impossible, from the very nature of the case, that there should be anything like a regular judicial review.^ Eegarding the market value of the property, as furnishing the true prin- ciple by which the commissioners are to be governed, and the independent exercise of their intelligent judgment, as the true mode of applying that princi- ple to the appraisal, it is scarcely possible for a Court to say upon review, that the commissioners have erred. Indeed, this can never be said, unless it can be made to appear, that they have adopted an erro- neous principle in making their appraisal, or have erred in the application of the true principle. ' See the opinion of Bronson, J., in the Matter of William and An- thony streets, 19 Wend. 678. CHAP. II.«| PROVISION FOE MODE OF INDEMNITY, ETC. Ill Neither can be said to appear in this case. There is nothing here to show that the appraisal is not the result of the free exercise of the judgment of the majority of the commissioners who signed the re- port, in reference to the market value of the prop- erty, as it was before the railroad was constructed, and as it will be afterwards. If it is, the report ought not to be disturbed. And, perhaps, in strict- ness, this should be sufficient to justify the Court in denying the application to send it back for review. But from the amount of the award, taken in connec- tion with the character of the testimony submitted to the commissioners, and the further fact, that two very intelligent commissioners have omitted to unite in the appraisal, the Court are apprehensive that the majority of the commissioners may possibly have felt themselves overruled by the opinions of others, and have made those opinions, rather than their own judgment, the basis of their appraisal. For this rea- son, and not so much for the purp-ose of correcting any error as to enable the commissioners to review their own decision, and see whether, upon the prin- ciples now stated, they have committed any error, we have thought it a discreet exercise to the power which the legislature has thought fit to vest in this Court, to send the proceedings back to the same commissioners for review. The second report will, of course, be final." § 108. Where a railroad corporation was authorized to acquire lands, upon an appraisement hy apprais- ers, who were to assess the value of the land, without any deduction on account of benefits, an appraisement of them, with a condition, that certain easements are 112 LAW OP HIGHWAYS. [CHAP. II. to be reserved to the owner, is unauthorized, and no title will be acquired by the proceeding. In this case, according to the section of the act under which the proceedings were taken, the corporation were entitled to the fee.-^ § 109. As to future and remote damages.^ Tn a case decided by the Supreme Court of Pennsylvania, as lately as January, 1857,^ Lowrie, J., in giving the opinion of the Court, asks : " Is it reasonable to infer, that remote and contingent future damages, such as accidental fire from locomotives, was intended to be estimated and paid for ? We think," he continues, " it is not ; we find no act of assembly that indicates that such a thing was ever thought of The legisla- ture never had anything like it in its mind when pro- viding for public improvements. The law proclaims its general rule, that it has no remedy for mere acci- dental injuries ; and when providing for the con- struction of internal improvements, it has uttered no new one. It has given no compensation for the risk of bridges burning or falling back ; or toll-houses taking and communicating fire ; stationary engines exploding ; locomotives running off the track into a man's house ; dams and locks giving way and inun- dating his land, or anything of that kind. And why should it? If it take a man's land, or injuri- ously affects his property by the improvement, it gives him full compensation according to the best ' Hill, &c. V. Mohawk and Hudson Railroad Co. 3 Seld. 152 ; Court of Appeals; S. C. 5 Denio, 206. ' Old Colony Railroad Co. v. Plymouth, 14 Gray, 155 ; Fii-st Parish in Woburn o. County of Middlesex, 7 Gray, 106. ' Sunbury and Erie Railroad Co. v. Hummel, 27 Pena. 99. And see Lee V. Milner, 2 M. & Welsb. 824. CHAP, n.] PEO VISION FOE MODE OF INDEMNITY, ETC. 113 estimate that it is competent to obtain; and why should he have more ? True, his risks may be in- creased by the improvement, but so is it with every man along the road, even though his land be passed without touching it, and why should he be paid for the risk, and the other not ? In going along streets, the locomotives may pass under the very eaves of a thousand houses, without paying in advance for the risk. The improvement increases the risk, but so does improvement by the erection of mansions, and especially of all sorts of steam-works, but no one gets compensation for such risks. It is a simple law of nature, that he who lives in society must take the risk of those social accidents which society knows not how to prevent. The incidental hazards must stand as balanced by the incidental benefit of the social state. It is also relevant to this question of reasonableness to ask, how the risk is to be meas- ured ? There may be but a single shanty on the land of the claimant, and if we are to provide for futm^e risks, the duty is not satisfied by merely as- certaining the risk of the shanty, for there may yet be a hundred houses there ; how can it be told how many, or what kind, or value ? And who can calcu- late the chances of accidental fire ? We know not yet the kind of fire that may be used ; nor the im- provements to be made for preventing the emission of sparks, nor how 'soon there will be another ele- ment than fire and steam for locomotive power, nor whether there will be one or one hundred locomo- tives daily along the road. These considerations show, that an estimate of such a risk for all future time can be founded on no rational principles, and 8 114 LAW OF HIGHWAYS. [CHAP. U. can be formed only by an average of unintelligent guesses. The present case is an illustration of their uncertainty ; for the risk of this barn is estimated at half its value, when most likely it could be shown by experience, that not one erection in a thousand along a railroad is burnt in a year. If all houses near to the track of proposed railroads had to be paid for at this rate, no railroads could be made. It is unreasonable to ask intelligent men to make a sworn estimate of a mere risk which can be founded on no present data, but only on an imaginary future state of things which may never exist, or which may become complicated with other things which may totally change their character, and we are convinced that this law does not intend such an estimate." 7. Of the Kind and Mode of Compensation. § 110. Compensation means amends, recompense, remuneration ; so that there must be not only some person to make or render, but another person to accept and receive.^ The objection to appropriating public property to private use rests upon the same principle as the objection to appropriating, without a just compensation, private property to public use.* § 111. The corporate body of the State itself can claim amends for its private property when taken for public use. Thus, suppose an act of the legisla- ' Per Brown, J., in People v. Mayor, &c. of Brooklyn, 9 Barb. 535. The liability for consequential damages from proper manage- ment to parties whose land is not taken to the public use must be de- pendent upon the provisions of the different statutes, and unless so pro- vided for cannot be recovered. Eadcliff v. Mayor of Brooklyn, 4 Comst. 195 ; Monongahela Nav. Co. v. Coons, 6 Watts & S. 101 ; Kogers v. Kennebec, &c. Railroad, 35 Maine, 319. 2 Town of Guilford v. Cornell, 19 Barb. 615. CHAP. II.J THE KIND AND MODE OF COMPENSATION. 115 ture, by which a railroad corporation is established in the usual manner, and with the ordinary powers and privileges of such corporations, authorizes the corporation to locate their road so that the same may pass over certain land which belongs to, and is held by, the State, as a body politic, for a particular purpose, but without any expression in the act of a design on the part of the legislature to aid the corporation in their undertaking. In such case, it cannot be considered to be the intention of the legislature to grant the land of the State, or any easement therein without compensation, and the State, accordingly, may institute proceedings and prosecute a claim for damages before the appropri- ate tribunal, in the same manner as an ordinary individual proprietor.-^ In either case, whenever land is taken for a perpetual use, and paid for, the former owner is not entitled to further compensa- tion, if it be afterwards appropriated to another public use of no greater injury to the former owner.^ § 112. When private property is taken for public use, the compensation need not precede, nor be con- temporaneous with, the taking ; the right to it may be ascertained and declared afterwards. But there is imposed upon the legislature an obligation to pro- vide for compensation in a reasonable time, and also for undoubted security and efficient means for its prompt collection, so that its payment may be made certain.^ The spirit of the Constitution is complied ' Commonwealth v. Boston and Maine Railroad Co. 3 Cush. 25. ' Chase V, Sutton Manufacturing Co. 4 Cush. 162. ' Boynton v. Peterborough and Shirley Kailroad Co. 4 Cush. 469 ; 116 LAW OF HIGHWAYS. [CHAP. U. with if such provisions are made/ but is not if they are not raade.^ On one occasion, it was observed by Lord Ch. J. Denman, " frequently compensation can- not be ascertained till the work is done" ^ but an act of the legislature must, in New York, make suitable provision for compensation, in case the land be sub- sequently taken ; * and thus is the construction in Pennsylvania.* § 113. The obligation imposed by constitutional law upon a State government to make, or provide for, compensation, when appropriating private prop- erty to public use, is, as it were a debt, and as such should be paid in money ; and the inhibition imposed upon the States, by the Federal Constitution, that they shall not make anything but gold and sil- Bradshaw v. Kogers, 20 Johns. 108, 735 ; Day v. Stetson, 8 Greenl. 365. ' By the Court, by Sutherland, J., in Bloodgood i;. Mohawk and Hud- son River Railroad Co. 14 Wend. 61. ' Bonaparte v. Amboy Railroad Co. 1 Bald. 228 ; Parks v. Boston, 15 Pick. 198; 2 Kent, Comm. 339, note. " Lisley u. Lobley, 7 Adol. & Ell. 124. ' Polly V. Saratoga and Washington Railroad Co. 9 Barb. 449. It appears to be the settled construction of the Constitution of the State of New York, which prohibits private property to be taken for pub- lic use without just compensation, that actual compensation need not precede the appropriation ; and the law of the State authorizing the re- construction and alteration of a road, providing for compensation, and without making it a condition precedent to the entry upon and ap- propriation of premises, is valid. Smith v. Helmer, 7 Barb. 416 ; Bloodgood «. Mohawk and Hudson Railroad Co. 18 Wend. 9 ; S. C. 14 Ibid. 51 ; Calking v. Baldwin, 4 Wend. 667; Cole v. Trustees of Wil- liamsburgh, 10 Wend. 659; People v. Hayden, 6 Hill, 359; Smith v. Helmer, 7 Barb. 416. ' Pittsburg i;. Scott, 1 Barr, 309; and see, in Mississippi, Thompson V. Grand Gulf Railroad Co. 3 How. 240. The Civil Code of Louisiana requires the previous indemnity (art. 589), and see the Code Napoleon (art. 545). CHAP. II.] THE KIND AND MODE OP COMPENSATION. 117 ver a lawful tender for a debt should be, it has been considered, extended to such a debt.^ A learned Judge, it is true, has seemingly expressed a different opinion, and after admitting that there is a primary convenience in money, as a medium of commercial exchange, expresses the opinion, that it rests with the legislature to determine the kind of compensa- tion to be made.^ The learned Judge, on the occa- sion referred to, was commenting on the case of Van Home's Lessee v. Dorrance,^ in which it was consid- ered, that no just compensation could be made ex- cept in money, that being a common standard, by comparison with which the value of anything can be ascertained ; money being not only a sign which represents the respective value of commodities, but a universal medium, easily portable, liable but to lit- tle variation, and readily exchanged for any kind. Compensation is a quid pro quo, and must be (unless otherwise by the election of the parties) in money. § 114. It has been afl&rmed of the opinion ex- pressed in the above case of Van Home's Lessee v. Dorrance, that its accuracy had been questioned, and been asserted also, that if it be a correct exposition of constitutional law, the legislature had violated the provision in question in more instances than one.* This remark may have been made in refer- ' See Smith on Statute and Constitutional Law, 471 ; Seymour v. Carter, 2 Met. 520; Eocliester and Syracuse Railroad Co. v. Budlong, 6 How. 467; Jacob v. Louisville, 9 Dana, 114. By the terms of the Con- stitution of Vermont, the ovvner ought to receive an equivalent in money. Armington v. Barnet, 15 Vt. 475 ; People v. Mayor, &o. of Brooklyn, 9 Barb. 546. ' Mr. J. Rogers, in M'Masters v. Commonwealth, 3 Watts, 291. ' Van Home's Lessee v. Dorrance, 2 Dallas, 313. ' Mr. J. Huston, in Satterlee v. Mathewson, 16 S. & Rawle, 179. 118 LAW OP HIGHWAYS. [CHAP. II. ence to the practice of estimating the benefits that accrue to the owner of the property, and, taken in that light, it conflicted with the interpretation in Van Home's Lessee v. Dorrance. But, looking at the matter attentively, there appears nothing contra- dictory, because, by the decisions in that State, com- pensation may be made in benefits to the remaining part of the property. In almost every turnpike act in Pennsylvania, in the estimation of damages, the viewers or appraisers are required to take into con- sideration the advantages accruing, as well as the injury done to the land. The same principle is en- grafted into the canal system of the State, without any objection being made ; it being obvious that the equity of the principle must strike the sense of jus- tice of every one.-' That a just and full compensa- tion must, in such cases, be made in money, is un- questionable ; but if, in appropriating land of the value oi four thousand dollars, when, by the same appropriation, the value of what remains is increased tioo thousand dollars, and the value of the property taken be the rule of damages, the owner actually takes two thousand without the least consideration, and thus receives more than the Constitution enjoins to be allowed, because it is more than a compensa- tion.^ If anything is due the land-owner, after a set-off of the benefit derived, the balance must be ' Per Rogers, J., in giving the judgment of the Court in M'Masters v. Commonwealth, 3 Watts, 292, 295. The rule of assessing damages in Pennsylvania is a fair and just compensation of the value of the whole tract through which the road passes before and after the improvement is made. Pennsylvania Railroad Co. v. Heister, 8 Barr, 445. " Opinion of Wood, C. J., in Sy mends v. City of Cincinnati, 11 Ohio, 174. CHAP. II.] THE KIND AND MODE OP COMPENSATION. 119 paid in money. The material inquiry is, Is the prop- erty injured or benefited.^ § 115. In the State of New York (long well known for its public enterprises), Bronson, J., in giv- ing the judgment of the Court, in the matter of Furinan Street,^ held that there was nothing in nat- ural equity or justice which forbade the compensa- tion should be made in property instead of money, or in any other form that would secure to the owner a fair equivalent for the land of which he is deprived ; and it was upon this principle, he considered, that benefits were set off against damages under the canal laws of the State of New York ; and if the land of a farmer, worth one hundred dollars, was taken for the construction of a canal, and the canal, when completed, would advance the value of his remaining property to an equal amount, no other compensation was made to him. The learned Judge maintained that this was the only just and reason- able rule on the subject, and that a different rule would tax the public for the benefit of individuals. The decision in the case was, that the loss of the privilege of building on the land which formed the streets in Brooklyn, as they were designated on a map by the corporation of that place, under an act of the legislature, had been greatly overbalanced by the benefits resulting from the permanent and uni- form plan which was adopted for the future enlarge- ment of the town. In respect to the test of value, Bronson, J., remarked : " There is one test which the appellants might have given if they thought proper : ' Pennsylvania Kailroad Co. u.' Heister, 8 Barr, 445. 2 Furman Street (Matter of), 17 Wend. 649. 120 LAW OF HIGHWAYS. [CHAP. H. What was the value of their land before this provis- ion was made ? Would that value, with compound interest from 1819 to the present time be equal to the sum which had been awarded to them by the commissioners for the present value of the land ? If not, then what injury have they sustained by this measure, even on the supposition that the land had been actually taken in 1819 ? If their damages had been estimated according to the former value, they might have had some ground of complaint ; but on the facts which they have submitted, it is impossible to say that any injustice has resulted from the prac- tical operation of the statute." ^ This case, with the cases of the People v. Mayor, &c. of Brooklyn,^ and of Eexford v. Knight, in New York,^ place the con- stitutionality of setting off benefits derived against damages upon an impregnable basis. § 116. In Massachusetts, the general doctrine on this subject is broadly advanced in the case of the Commonwealth v. Coombs,* that the benefit derived by laying out a highway to the other property of the party seeking to recover damages for his land taken, should be considered in reduction of the dam- ages for the land taken. The language of the Court in another case in that State is: "The jury might and ought to have returned that the party sustained no damages, if such was their conviction ; the benefit the owner of the land deprives from the laying out a way over it may often exceed the value of the land ' See Lynch v. Mallory, 4 Denio, 356. » People V. Mayor, &c. of Brooklyn, 4 Comst. 419, Ct. of Appeals. ° Rexford v. Knight, 15 Barb. 627. ' Commonwealth v. Coombs, 2 Mass. 492. CHAP. II.] THE KIND AND MODE OF COMPENSATION. 121 covered by the way." ^ This doctrine has been since expressly recognized in that State.^ The General Statutes of the State in Hke manner provide, gener- ally, for an allowance by way of deduction for the advancement in value of other property. The stat- ute of the State of Vermont, which provides for estimating the damages which may be sustained by any person interested in lands, by reason of laying out or altering any highway, the benefit which such may receive thereby shall be taken into considera- tion, is not repugnant to that article in the State Constitution which provides, that, whenever any person's property is taken for the use of the public, the owner ought to receive an equivalent in money .^ ' Commonwealth i'. Sessions of Middlesex, 9 Mass. 31. ' Methuen v. Fitchburg Railroad Co. 4 Cush. 291 ; Upton v. South Reading Branch Railroad Co. 8 Cush. 600. In an action for the dam- age occasioned by the filling up by the defendants of their land lying adjacent to that of the plaintiff, whereby the free flow of water off the plaintifTs land, as formerly existing, had been obstructed ; instructions to the jury, that "they should take into consideration the evidence on both sides bearing on this point, and, if they were satisfied that the filling up had actually benefited the plaintiff's estate in any particular, they would, in assessing the damages, make allowance for such benefit, and give the plaintiff such sum in damages as they found upon the evidence would fully indemnify and compensate him for all the damage he had actually sustained," was held to be correct. Luther v. Winnisimmit Co. 9 Cush. 171. Again : In Meacham v. Fitchburg Railroad Co. 4 Cush. 201 ; it was held that, in estimating damages for a highway or railroad, any direct and peculiar benefit or increase of value accruing therefrom to land of the same owner adjoining or connected with the land taken, and forming a part of the same parcel, is to be considered by the jury, and allowed by the way of set-off; but not for any general benefit or increase of yalue received by such land in common with other lands in the neighborhood ; nor any benefit to other land of the same owner though in the same town. Dickenson v. Fitchburg, 13 Gray, 546; Deaton v. Polk, 2 Iowa, 594; Dwight V. County Commissioners of Hampden, 11 Cush. 201 ; otherwise in New Jersey, Williamson v. East Amwell, 4 Dutch. 270. ' Pennsylvania Railroad Co. v. Fisher, 8 Barr, 445. 122 LAW OF HIGHWAYS. [CHAP. H. § 117. It is somewhat important and difficult, in respect to benefit derived, to determine in reduction of money damages any collateral benefit which the person whose land has been appropriated has re- ceived in his other property. Unquestionably, there must be some limitation to the rule. It is not to be extended to contingent, indirect, and remote benefit in settling the question of damages for taking a par- ticular parcel of land. In a case in Massachusetts, the jury were instructed, that if the construction of a railroad, by increasing the convenience of the people of a town generally, as a place of residence, and by its anticipated and probable effect in increasing the population, business, and general prosperity of the place, had been the occasion of an increase in the salable value of the real estate generally, near the station, it was too remote a benefit to be brought into consideration in determining the question of damages.^ § 118. In Virginia, the advantages to be derived to the owner of land condemned for the use of a river company for the improvement of the river, for which the charter required the appraisers to have regard, are such advantages as particularly and ex- clusively affect the identical parcel of land whereof a portion is condemned, but not advantages of a general character which may be derived to the owner in common with the country at large.^ ' Meacham v. Fitchburg Railroad, 4 Cush. 291 ; Boston and M. Kail- road I'. Middlesex, 1 Allen, 324 ; Old Colony Railroad v. Plymouth, 14 Gray, 155 ; Upton v. South Reading Branch Railroad Co. 8 Cush. 600. The time of the location is the period at which the increased value is to be reckoned. ' James River and Kauoiwha Co. v. Turner, 9 Leigh, 413; and see CHAP. II.] THE KIND AND MODE OF COMPENSATION. 123 § 119. The Constitution of Pennsylvania, art. 7, sect. 4 (1838), forbids the legislature to authorize any corporate body or individual to take private property for public use, without compensation to be made, or adequate security to be given, before the taking. Yet the fee in land may be taken for high- ways without compensation, as the soil of the State was originally granted in reference to the opening of highways. Under the "concessions agreed upon by William Penn, and the adventurers and purchas- ers " of lands in Pennsylvania, and the early laws of the province which sanctioned an agreement that an additional quantity of land should be granted to each purchaser, without price or rent, to enable him to cQntribute, without loss, to such public roads as should be found necessary, and six per cent was fixed as the permanent quantity to be added to every man's land for that purpose, and all grants were afterwards, with this additional quantity, for the express purpose of contributing to the establish- ment of the roads ; it was held, that the State might constitutionally authorize a turnpike company to lay out a road through the land thus granted, without making further compensation ; compensation having been originally made to each purchaser's particular grant. This mode of accommodating the public was devised by the legislature at the expense of private individuals, who, from a prospect of deriving some small profits to themselves, might be induced to do it. It was immaterial to the public, whether it was done by a general tax, to be levied on the Carpenter v. Landaff, 42 N. H. 218; Dickenson v. Fitchburg, 13 Gray, 546". 124 LAW OF HIGHWAYS. [CHAP. II. people at once, or by the gradual payment of cer- tain specified suras by way of toll on those only who used the road, the latter being considered as the most equal mode of defraying the charge of making and keeping such road in repair ; for although every man has a right to the free use of a public road, yet every member of the community may be taxed for making that road, in any manner that the legisla- ture may think reasonable and just.-^ § 120. Where, in Pennsylvania, an alley was laid out and opened in a borough by road and street commissioners thereof, under a special act of the legislature, which authorized and required them to perform the said duty, but which provided no mode of compensating the owners of the lands thr-ough which the alley passed, for the damages sustained ; it was held, that the special act was not unconstitu- tional, as it only interfered with a general road law, to the extent of the agency used in laying out and opening the alley, but that it did not withdraw the case from the operation of the general road law, providing for the assessment of the damages sus- tained by reason of laying out and opening the alley ; that the special act was to be construed and treated as part of the general road law.^ § 121. The right granted to the Commonwealth of Massachusetts, in 1786, to purchase the lands of the Indians, in the State of New York, was, and always has been, subject to the right of the. State to take and appropriate the lands to which the right of ' M'Clenaohan o. Curwen, 6 Binn. 509 ; and see Commonwealth v. Fisher, 1 Penn. 466, and 6 Whart. 44. ' Sharett's Eoad (Matter of), 8 Barr, 99. CHAP. II.J THE KIND AND MODE OP COMPENSATION. 125 purchase attached ; otherwise a portion of the ter- ritory of the State would be • beyond its right of sovereignty. When any of the land of the Indians are taken for roads, canals, &c., compensation is made to the Indians, who have not parted with the right to the pre-emptors, and may never do so ; and no compensation is paid to the pre-emptors.^ § 122. In all cases, where private property is to be taken, without the owner's consent, at the demand of a local corporation, it is essential to inquire, whether all the requisitions of the statute have been complied with ; as Courts cannot allow any essential departure from them without jeopardizing private rights, which have no adeqiiate protection except in Courts.^ The rule of law, that no man shall be deprived of his property without an oppor- tunity of defending himself, is inflexible ; and, upon this principle, it was held, that a report of commis- sioners of estimate and assessment, should not be confirmed, if it contain an assessment upon property in a city belonging to unknown owiters? It may be sometimes necessary in proceeding in rem, to pro- ceed against persons who are unknown ; but the judicial power is restrained from doing so, without the intervention] of the legislative power, and by some sort of substituted service prescribed for the judicial jurisdiction in' personam} So strict have ' Wadsworth v. Buffalo Hydraulic Association, 15 Barb. 83, 95. » Harbeck v. Toledo, 11 Ohio St. 219; Bensley v. Mountaia' Lake Co. 13 Cal. 806 ; Hutchinson v. Chester, 33 Vt. 410 ; ShalTner v. St. Louis, 31 Mis. 264; State v. Newmarket, 20 N. H. 519. ' State V. Reed, 38 N. H. 59 ; Shelton v. Derby, 27 Conn. 414. But see North Reading v. County Commissioners, 7 Gray, 100. * Flatbush Avenue (Matter of), 1 Barb. 286. And such substituted 126 LAW OF HIGHWAYS. [CHAP. 11. been the Courts, that a judgment in partition has been held to be utterly void, because the record did not contain the averment that an affidavit was filed, stating that the owner was unknown.^ § 123. The Statutes of Massachusetts ^ provide fiar the case where several parties have different estates or interests, at the same time, in any land or build- ings, and direct that the jury shall first determine the damage done to the whole as an entire estate in fee-simple, and then apportion the amount amongst the several and distinct interests therein. This the Supreme Court of the State has declared a very wise and useful provision, and one which should be car- ried into eflfect, according to its true intent and spirit, as one intended for the relief and benefit of those who are liable to pay damages? § 124. The commissioners of estimate and assess- ment in New York, should consider separately the distinct existing interests in each portion of such private lands as are required for opening or widen- ing a highway, as those of landlord and tenant, and make a separate' award of the damages to each. The proper mode is, first, to estimate the damage to the fee, as if it were owned entire and unincum- bered by one person, and then, apportion that amount among all the interests which such persons have in the property.* The rule applies to the case of mort- service must be in exact compliance with the statute. Harbeck v. Toledo, 11 Ohio St. 219. ' Deming v. Corning, 11 Wend. 647. » Chap. 24, §§ 48, 49, 50. ' Walker v. Maine Railroad Co. 3 Cush. 20 ; and see Richardson v. Curtis, 2 Ibid. 341. * Coutant V. Catlin, 2 Sand. 485. CHAP. Il] the kind AND MODE OF COMPENSATION. 127 gagors and mortgagees, and to undivided owners, as well as to that of lessors and lessees} Where the report of the commissioners awards all the damages to one of several parties interested, and there is no award to either of the others, it is competent for the latter to prove their interest, and recover from the former their proportion of the award.^ It is well settled, that the mortgagee may intervene and claim the award, although the whole amount of it is given to the mortgagor, where no notice of the right of the former is taken in the report.^ The mortgagee need not be made a party to proceeding by the mortgagor, for the assessment of damages, provided he gives his assent thereto by a writing filed in the case.* § 125. In England, where the act of Parliament speaks of owners and proprietors, in defining the parties entitled to compensation, these terms, it seems, are not to be understood simply of the owners of the inheritance, but may be taken to embrace generally the interests of all persons having a bene- ' Wiggan V. Mayor, &o. of New York, 9 Paige, 19 ; Railroad Com- pany V. Hull, 1 Casey, 336. One entitled to ground-rent out of a tract of land, is not entitled to damages for laying out of a street through it, he must seek his remedy in equity to have a portion of the damages decreed a fund to answer for accruing rents. Woodman v. Mifflin, 30 Penn. 362. See Turnpike Road v. Brosi, 22 Penn. 29. But the Lessor ' and Lessee are each entitled to recover compensation for the damage sustained by them respectively. Parks v. Boston, 15 Pick. 198. In Mass. a possessory title is sufficient to entitle the party in possession to have a jury to assess his damages. State Lunatic Hospital v. Worcester, 1 Met. 437. And nine years' possession under a claim of title in fee, is prima facie sufficient to support a petition for damages to land by reason of the discontinuance of a highway. Hawkins v. Berkshire, 2 Allen, 254. ' Matter of John Street, 19 Wend. 659. ' Coutaut, &c. ub. sup. * Meacham v. Fitchburg Railroad Co. 4 Cush. 291. 128 LAW OF HIGHWAYS. [CHAP. 11. ficial interest in the land, and of termors among the rest.^ Where there is a change in the ownership of land, pending the settlement of a claim for damage done to such land by a railway company, it seems that the compensation for such damage, if temporary, belongs to the party who had the legal estate when the damage was done, but if permanent, goes with the land to the subsequent owner.^ A party entitled to an easement over lands purchased by the com- pany cannot, under the general provisions of a rail- way act, maintain an action for acts done upon those lands by the company, to the prejudice of his ease- ment (so for, at least, as such acts are done in the execution of the purposes of the act), but ought, as soon as any damage is actually sustained, to claim compensation under the act.^ § 126. Where, in England, there are different per- sons having several interests in the property re- quired for the purpose of a highway, the compensa- tion must be apportioned among the several parties, according to their respective interests, at least, if the jury are impanelled to do so ; and an assessment of the compensation in one gross sum would accord- ingly be bad.* And the like rule would seem to 1 Astor V. Miller, 2 Paige, 6a; and S. C. 5 Wend. 603. A tenant for years isi an owner within the act of Pennsylvania constituting a plank road company. -Erie and Waterford Plank Koad Company v. Brown, I Casey, 156. And see South Devon Railway (case of), 7 Eng. Law and Eq. 189. '' Lister v. Lobley, 6 IJev. and Jlan. 340 ; Walford on Railways, 188 ; and see Thicknesse v. Lancaster Canal Company, 4 iL & Welsh 472. ' See judgment of Baron Alderson, in Cator v. Croydon Canal Com- pany, 4 Y. & Coll. 405. * Rex I). Trustees of Norwich and Watton Road, 5 Adol. & Ell. 578; and S. C. 1 Nev. & Per. 32. CHAP, n.] THE KIND AND MODE OF COMPENSATION. 129 apply where the same party prefers a twofold claim, both for purchase-money and for damages, if the jury are required at the trial to make a separate assess- ment.^ But if no demand is made at the time on the part either of the company or the claimant for a separate assessment, then it seems a verdict is not to be regarded as a nullity, for not adjudicating separate- ly on each claim, even though the act expressly de- clares that the one claim shall be inquired into and assessed separately from the other ; the act not being compulsory or in the nature of condition pre- cedent.^ § 127. Where land of a person deceased is taken for a highway, the heir, and not the administrator, is entitled to damages for such taking, and he may 'pros- ecute for the recovery thereof; although the admin- istrator has previously represented the estate to be insolvent, and afterwards obtained a license to sell the intestate's real estate for the payment of debts. But this supposes that no act of legislation has pro- vided for cases of this description.^ And generally the vendor is entitled to the damages accruing while he was the owner, and do not pass by deed to a subse- ' Walford on Railways, 204. ^ Ibid. ; In the Matter of the London and Greenwich Railway Co. 2 Adol. & Ell. 683 ; and S. C. 4 Nev. & Man. 458 ; Corrigall v. London and Blackwall Railway Co. 21 Law Journ. 216 ; and S. C. 5 M. & Grang. 219. " Boyntou v. Peterborough and Shirley Railroad Co. 4 Cush.- 467. Money, if paid into court by a railroad company, for land taken under the Land Clauses Acts, from a person who was under mental imbecility, and who continued in that state until his death, but was not the subject of a commission of lunacy, will be ordered, after his death, not to be re- invested, or considered as land, but to be paid to his executor. Flamark, ex parte, 3 Eng. Law and Eq. 243. 130 " LAW OF HIGHWAYS. [CHAP. II. quent purchaser, though the works are not completed till after the conveyance.-^ 128. An occupant of premises required for the purposes of a highway may have an interest in those premises, which, without strictly falling under the meaning of a legal interest, is yet highly valuable, and which, but for the passing of the act, he might have hoped to enjoy for a prolonged term, such as an interest in regard of the good-will of a business, the hope of a beneficial renewal, tenant's fixtures, improvements, and the like.^ An interest, however, of this kind is too slight and precarious to be made a ground for compensation, except there are conclu; sive words in the act of the legislature embracing it.^ It will not, therefore, be included in the terms of an act which speaks simply of the value of the tenant's unexpired term and interest.* § 129. The grantor of a tide-mill and mill-pond, who had reserved the right of boating and rafting through the pond, and of using the same as a depot for lumber, it seems, has no such proprietary interest in the premises, by virtue of such reservation, as to entitle him to become, or to render it necessary that lie should be made a party, under the Statutes of Massachusetts, for the recovery of damages occa- sioned by the laying out and construction of a rail- road through the granted premises. "We are not prepared to say," said Shaw, C. J., " that the legal 1 Rand u. Townshend, 26 Vt. 670 ; Lewis v. Wilm. & Man. Railroad, 11 Rich. 91. " Walford on Railways, 188 ; Redfield on Railways, § 83. " Ibid., referring to cases decided on Hungerford Market Company's Act, 2 B. & Adol. 341, 348 ; 4 lb. 596, 600, n. ; 9 Adol. & EU. 463. * Rex V. Liverpool and Manchester Railway Co. 4 Adol. & Ell. 650. CHAP. II.] THE KIND AND MODE OF COMPENSATION. 131 distinction between an estate and an easement in the premises taken, will always determine whether one has or has not a proprietary interest, rendering it proper to make him a party or not, with the owners in a claim of damages. Possibly an easement for a mill privilege, for example, may be so large and valuable as to render an interest therein much more important than that of a lessee for years, or a rever- sioner." ^ In England, a party entitled to an ease- ment over lands purchased by a railroad company, cannot, under the general provisions of a railway act, maintain an action for acts done upon those lands by the company to his easement (so far, at least, as such acts are done in the execution of the purposes of the act), but ought, as soon as any dam- age is actually sustained, to claim compensation under the act.^ § 130. An alien resident, in one of the States of the United States, who owns land, under a special law of the State, may sustain a suit in the Circuit Court in relation to such land, and has a right to claim compensation, when it is taken for public use.^ ' Davidson v. Boston and Maine Railroad Co. 3 Gush. 91. ' Walford on Railways, 188. ° Bonaparte v. Camden and Amboy Railroad Co. 1 Bald. 205. 132 LAW OF HIGHWAYS. [chap. III. CHAPTER III. highways by prescription and dedication. I. Prescription. II. Dedication. 1. Definition and Histokt. 2. The Parties to Dedication. 3. In what Manner a Dedica- tion MAY BE Qualified. 4. What constitutes a Dedi- cation ON THE PART OF THE Donor. 5. What is sufficient Evi- dence to prove a Dedi- cation. What is sufficient Evi- dence to rebut the Pre- sumption op Dedication. Limits of Dedication. Acceptance. Dedication of Bridges. How Dedication may be LOST. I. Prescription. § 131. Prescription, in its more general accepta- tion, is defined to be " a title, acquired by possession, had during the time and in the manner fixed by law." It is also said that " a prescription by imme- morial usage, can, in general, only be for things which may be created by grant ; for the law allows prescriptions only to supply the loss of a grant.'"- Now, inasmuch as the public cannot take by grant, prescription, in its strict sense, has no application to highways. " As the law now exists in this State," says Senator Furman, in Post v. Pearsall,^ " and as it has in substance existed ever since the formation of ' Cruise Dig. Tit. XXXI. Ch. 1, § 11. ' Post V. Pearsall, 22 Wend. 444. CHAP. III.] PRESCEIPTION. 133 our constitution, the 'only way that an individual can acquire a right in real estate is, by grant, or by an adverse possession of twenty years under a claim of title, in which case the law presumes a grant ; and, as to the public, the only way in which they can at the common-law acquire an easement in the lands of another is by dedication." But, nevertheless, there are cases in which the doctrine of prescription has been applied to highways. Thus in the case of Odiorne v. Wade, which was an action of trespass quare clausum f regit, the defendant having put in a plea of common highway from time immemorial, and proved the existence of the way for more than sixty years, there being no evidence showing its com- mencement, the Court held, that the duration of the way was sufficient to support the plea of prescrip- tion.-^ And again, in the case of Eeed v. Northfield,^ ' Odiorne v. Wade, 5 Pick. 421 ; Committee v. Case, 26 Penn. 117 ; but see Martin v. People, 23 111. 395 ; Hart v. Trustees, 15 Ind. 226. " Reed u. Northfield, 13 Pick. 94. This language of the Court sub- stantially repeated in various cases, though seemingly applying the doc- trine of prescription to public ways, cannot, in view of the distinction be- tween a prescription and a dedication, be strictly correct, since it is essential to a prescription that there should be a grantee as well as a grant- or, an individual recognized by the law capable of holding the presumed grant either as original grantee or as his successor, which cannot be the case in instances of public rights, which, in their nature, exclude the idea of any paramount or peculiar right of one person beyond what is shared alike by every other ; any apparent inconsistency between these cases and subsequent ones, where the doctrine of dedication is more fully stated and defined, may be reconciled by the consideration, that the mode of proof in each class of cases is many times substantially the same, as will be seen by reference to cases subsequently cited under the head of Evi- dence to prove Dedication, by user of ways in question, where it will be seen that evidence of the character and duration of the use by the individuals . claiming, or by the public, are held to be proper proof of title by prescrip- tion or of dedication, as the case may be. The same may be said of the 134 LAW OF HiaHWAYS. [CHAP. HI. Shaw, C. J., In delivering the opinion of the Court, said : " "We think it clear upon principle, that public easements, as well as others, may be shown by long and uninterrupted use and enjoyment, upon the con- clusive legal presumption from such enjoyment, that they were, at some anterior period, laid out and es- tablished by competent authority." ^ And, not un- frequently, an uninterrupted use of a way, on the part of the public, for a period of twenty years or more, is spoken of as constituting a title by prescrip- cases where tlie courts speak of the right of the inhabitants of a town in their corporate capacity to prescribe for a way as inuring to the benefit of individual inhabitants of the town, while under the decisions and upon principle there can be no doubt that inhabitants of towns in their corpo- rate capacity may prescribe for a way, and such a way is held to be a private way, the obstruction of which is not indictable. Commonwealth V. Low, 3 Pick. 408 ; it is difficult to see how that can avail to individ- uals without the intervening proof of a license from the corporation ; a recurrence to the distinctions between the different kinds of ways will, however, enable us to reconcile all apparent inconsistencies. Ways by prescription are personal in character as founded upon a grant, and are either appurtenant to an estate or in gross, differing mainly in their assignable character or the power of transmission. Ways by custom are ■local, and pertain to dwellers or occupants of a particular place, without reference to their rights as grantees or successors, and are distinguished from highways which pertain to the public generally, without reference to privity or locality. It will be found that the same mode of proof is com- petent to establish either, to wit, evidence of the nature and duration of the use of the way, and it is with reference to the kind of testimony that the language is used ; and, in so far as the oases hold that ways for the use of the public generally, or any particular portion of the public, may be acquired by prescription in its strict sense, they must be held not to be well founded in principle, and virtually overruled by the subsequent decisions estabUshing and defining the doctrine of dedication of easements to the public use. ' ' See also Commonwealth v. Low, 3 Pick. 408; Stedman v. South- bridge, 17 Pick. 162 ; Folger v. Worth, 19 Pick. 108 ; Valentine v. Bos- ton, 22 Pick. 75 ; Hicks v. Pish, 4 Mason, 310 ; Williams v. Cunningham, 18 Pick. 312; Brownell v. Palmer, 22 Conn. 107; State v. Gregg, 2 Hill, 387 ; Commonwealth v. Old Colony, &c. Railroad Co. 14 Gray, 93. CHAP. III.] DEDICATION. 135 tion. But, more properly speaking, such use, unless by virtue of some statute,'^ is but a fact from which a dedication to the public may be presumed. These cases, therefore, have seemed to me to be more prop- erly treated under the head of Dedication. j.*' II. Dedication. — 1. Definition and History. § 132. Dedication is an appropriation of land to some public use, made by the owner of the fee, and accepted for such use by or on behalf of the public. A common public road, originating in such an appro- priation and acceptance, is a highway hy dedication. The interest which the public thus acquires is merely an easement or right of passage over the soil ; the original owner still retaining the fee, together with all rights of property not inconsistent with the public use, and becoming, whenever that use is relinquished or lost, revested with as absolute and exclusive a do- minion as he possessed previous to the dedication. § 133. The doctrine of dedication is of purely common-law origin. In the civil law,^ public parks, squares, bridges, and highways were recognized, in- deed, and protected by suitable legal regulations ; but, in that law, there was no principle strictly anal- ogous to that of dedication. In that law, the public right flowed from a higher source. The state or nation was the paramount lord of the soil ; the indi- ' In New York, and probably in many of the other States, there is a statutory provision to the effect, that all roads not recorded, which have been or shall have been used as public highways, for twenty years or more, shall be deemed public highways. 1 R. S. 521, § 100 ; (3d. ed. 636, § 120.) 2 Poth. Pand. de Just. Lib. 43, tit. 8, art. 1. 136 LAW OP HIGHWAYS. [CHAP. III. vidual held subject to its ultimate ownership. This relation led to the distinction between what is called the dominitm% eminens and the dominium vulgar e, the former denoting the title which the public reserved to itself, the latter the right which individuals en- joyed by its permission. By an exercise of this re- served right of dominion in the State, the individual occupant might be devested of his estate, whenever the public safety or convenience demanded ; and, instead of acquiring an easement, the public entered at once into an actual ownership of the land itself. In the common law, the principle of dominium eminens was not carried to the same extent, and hence the difference between the two systems as regards dedication. The doctrine of dedication of easements to the public use in the decisions at com- mon-law is of modern date. It first appears as stated by Gibson, C. J.,^ in 1732, in Eex v. Hudson, and in Lade v. Shepherd^ in 1735, and next in Eugby Charity v. Merry weather in 1790. Since which time it has been frequently and fully recognized as a familiar and undoubted principle of the law, until adapting itself to the increasing demands of public travel, what at first seemed scarcely more than a dictum has become an important branch of the law of highways, and a marked instance of the capacity of the system of law of which it is a part to meet the varying and .ever-growing wants of society, and govern its action.^ " Gowan V. Exchange Co. 5 Watts & S. 141. " 2 Strange, 909 ; Ibid. 1004. ' Hunter v. Trustees of Sandy Hill, 6 Hill, 411 ; Hobbs o. Lowell, 19 Pick. 405 ; Pomeroy v. Mills', 3 Vt. 279 ; Cincinnati v. White, 6 Pet. 431. CHAP. III.]' THE PARTIES TO DEDICATION. 137 2. The Parties to Dedicatio7i. § 134. A primary condition of every valid dedica- tion is that it shall be made by the owner of the fee.^ Thus, where land, as far back as living memory could go, had been used in all respects as a public street, yet, having been under lease for ninety-nine years, which had but just expired, it was held, that the permission of the tenants could not bind the landlord, and that there was no dedication, unless it was proved to have been made previously to the giving of the lease. But, subject to this condition, dedication may be made by any private individual,^ by a corporation, provided such an act be not incon- sistent with the limitations of its charter and the purpose for which it is incorporated,^ or by a trustee, when compatible with the scope and nature of his trust.* The object of the rule is to protect the owner of the fee against public easements, originat- ing in the unauthorized acts of his tenants, or in the acts of intermediate proprietors, without his con- sent ; and it will not be strictly applied when this object would not be subserved by so doing. Where, ,' Port V. Pearsall, 20 Wend. 442 ; Wood v. Veal, 5 Barn. & Aid. 454. Vide also Ward v. Davis, 3 Sandf. 502 ; Baxter v. Taylor, 1 Nev. &. M. 13; Hoole u: Attorney-General, 22 Ala. 190. ^ Whether dedication can be made by, or presumed against, a person laboring under any of the common-law disabilities, — idiocy, infancy, coverture, &o. does not appear to have been decided ; but courts would probably be guided by the analogies of the Statutes of Limitations, in so far as they furnish analogies for such a case. Dedication may be pre- sumed against a married woman. Schenley v. Commonwealth, 36 Penn. 29 ; Ward v. Davis, 3 Sandf. 502. ' Great Surrey Canal Co. v. Hall, 1 Man. & Gr. 39.2 ; The Mayor, &c. of Macon v. Franklin, 12 Geo. 239. • Kex V. Leake, 5 Barn. & Adolph. 469 138 LAW OF HIGHWAYS. [CHAP. HI, therefore, the land had been used for a public foot- way for upwards of fifty years, during the whole of which time it had been occupied by a succession of tenants, one of whom had frequently complained to the proprietor's steward, that the public used the footway, and thereby injured the land, and yet no action was brought either by the landlord or tenant against any one who used it, the Court left it to the jury to infer a dedication, instructing them, that after a long lapse of time, and a frequent change of ten- ants, from the notorious and uninterrupted use of the way by the public, it might be presumed that the landlord had notice of the way being used, and that it was so used with his concurrence, and that, in this case, there was express evidence of notice, notice to the steward being notice to the landlord.^ For the same reason, the equitable owner of land, there being nothing but a naked fee outstanding in the trustees, may make a dedication which he can- not revoke when he afterwards comes into possession of the fee. In 1788, S. contracted with the Govern- ment of the United States for a patent for certain land, which, after some delay, occasioned by negotia- tions relative to payments, was, in 1794, issued to him and his associates ; and, he being the only per- son named, vested the fee in hitn. In 1788, he sold his right to a portion of the land ; and in 1789, the grantees of this right laid out a town, and set apart the locus in quo as a public common; in 1800, one of equitable owners took from S. a conveyance of the fee ; yet it was held that he was bound by the ' Rex V. Barr, 4 Campb. 16 ; "Wellbeloved on Highways, p. 61 ; Davis V. Stephens, T Carr. & Payne, 570. CHAP. III.] THE PARTIES TO DEDICATION. 139 dedication, the acquisition of the mere naked fee giving him no right to revoke it.-' And it has also been decided, that where the owners of the equita- ble estate make a dedication, their trustee, holding but a legal title for their use, is bound to respect it.^ And where land, over which a highway was claimed, had been sold and conveyed, but the vendor imme- diately took back the same estate to hold in fee and in mortgage, and afterward his executor entered for condition broken, and he, or those claiming under him, foreclosed the mortgage, so that he or they came in of the old estate of the mortgagee, the original vendor was held to be owner of the land, so far as related to a dedication thereof to the pub- lic, notwithstanding his conveyance.* In fact, the true rule seems to be, that acts of dedication, done with the knowledge and acquiescence of the owner of the fee, will be looked upon as his own acts, and that, for the purpose of dedication, the equitable owner will be regarded as the real owner of the fee rather than the mere naked trustee. § 135. The parties to a dedication are the indi- vidual proprietor and the public at large; and it has in some cases been objected that a grant, to be valid, must be to some specific grantee, and that, the pubHc not being such, a dedication was void. To obviate this difficulty, the Courts have sometimes classed dedication with private grants for charitable and religious purposes, where, contrary to the gen- eral rule, the fee may remain in abeyance until 1 The City of Cincinnati v. White, 6 Peters, 431. ' Williams v. First Presbyterian Society in Cincinnati, 1 Ohio, 478. ' Wright V. Tukey, 3 Cush. 290. 140 LAW OP HIGHWAYS. [CHAP. HI. there is a grantee capable of taking. But the better view seems to be, that dedication rests upon principles totally distinct from those which govern grants. No grant or conveyance can be necessary to pass the fee out of the owner of the land and let it remain in abeyance until a grantee shall come in esse ; for there is no one contemplated by the party to take the fee either immediately or at any future day ; the fee must remain either in the origi- nal proprietor or in some person to whom he shall convey it. By virtue of the appropriation which he has made, and by that alone, he is precluded from reasserting any exclusive right over the land, so long as it remains in public use. His gift enures immediately to the public, and is limited only by the wants of the community at large.^ 3. In what Manner a Dedication may he Qualified. § 136. In Austin's case, Lord Hale remarked, " If a way lead to a market, and were a way for all travellers, and did communicate with a great road, it is an highway ; but if it lead only to a church, to a private house or village, or to fields, there it is a private way." ^ This language would seem to im- ply, that no road can be a highway unless it be a thoroughfare ; and, upon this point, the opinions of Judges have been somewhat divided. In the case of The Rugby Charity v. Merryweather,* which was 1 City of Cincinnati v. White, 6 Peters, 431 ; Post v. Pearsall, 20 Wend, and 22 Wend. 425 ; State v. Wilkinson, 2 Vt. 480; New Orleans v. The United States, 10 Peters, 662; Williams v. First Presbyterian Society in Cincinnati, 1 Ohio, 478 ; Kennedy v. Jones, 11 Alabama, 63. "^ 1 Ventr. 189. Vide 1 Hawk. P. C. ch. 76, § 1. " The Kugby Charity v. Merry weather, 11 East, 375. CHAP. III.] HOW DEDICATION MAY BE QUALIFIED. 141 an action of trespass, tried in 1790, it appeared that the locus in quo had been used as a common street for above fifty years, though no thoroughfare by reason of the houses at the end. Lord Kenyon, in answer to this objection, said : " And as to this not being a thoroughfare, that can make no difference. If it were otherwise, in such a great town as this, it wouhi be a trap to make people trespassers." But in Woodyer v. Hadden,^ decided in bank in 1813, the decision of Lord Kenyon was very much criticised, though it did not become necessary that it should be directly overruled. Lord Mansfield condemned the decision, and, in reply to Lord Kenyon's remark, that if it were not a highway it would be a trap to make people trespassers, suggested that its being open and inviting persons, there being no notice to warn them away, would support a plea of license.^ Two other of the Judges expressed their dissent still more strongly on this point, one of them asking, " How can a street like this, which is no thoroughfare, be deemed a public highway." Again, in the still later case of Wood v. Veal,^ the Court leaned mani- festly to the opinion that there could not be a public highway which was not a thoroughfare, " because," as one of them (Abbott, C. J.) remarked, " the public at large cannot be in the use of it." But afterwards, in the case of Jarvis v. Dean,* in an action of tres- 1 Woodyer v. Hadden, 5 Taunt. 126. " Staiford v. Coyney, 7 B. & Cress. 257; Bowers v. Suffolk Manuf. Co. 4 Cush. 332; Moore v. Stocker, 1 Allen, 154; Commonwealth v. Fisk, 8 Met. 238; Cleveland v. Cleveland, 12 Wend. 172 ; Danforth v. Durell, 8 Allen, 244 ; Washburn on Easements, 133. ' Wood V. Veal, 5 B. & A. 454. ' Jarvis v. Dean, 3 Bing. 447. 142 LAW OF HIGHWAYS. [CHAP. III. pass in whicli the locus in quo is described as belong- ing to one' of two unfinished houses standing in a new street leading from White Conduit Street to some fields, in which also there were houses; the jury, under the direction of the Court, found said street to be a highway. But it would seem proba- ble, from the remarks of the Court, on a motion for a new trial, that this street communicated with pub- lic roads at both ends. And in Eex v. Lloyd,^ Lord EUenborough expressed the opinion that there might be a highway where there was no thoroughfare. § 137. In this unsettled state the law has remained in England until the recent case of Bateman v. Bluck.^ In this case, a passage leading from the public street up to a court, called Hat and Mitre Court, in the parish of St. Sepulchre, which consisted of fourteen or fifteen houses, and through which there was no thoroughfare, was held by the full Court to be a public highway. And on this point Lord Campbell remarked : " There may or there may not be a high- way under such circumstances (where there is no thoroughfare). It would be very wrong to hold that there can be no highway, even where there has been an express dedication to a public purpose, because the place is no thoroughfare. There may be a large square with only one entrance to it, and if the owner allows the public to use it without restriction for a great many years, he cannot afterwards turn round and say they are all trespassers." This case has undoubtedly settled the law in England in favor of • Rex V. Lloyd, 1 Campb. 260. Vide Eex v. Downshire, 4 Ad. & El. 698. ' Bateman v. Bluck, 14 Eng. Law & Eq. 69. CHAP. III.] HOW DEDICATION MAY BE QUALIFIED. 143 the rule laid down in The Rugby Charity v. Merry- weather. § 138. Upon American authority the law is not so unequivocally settled. A road, half a mile long, leading to a beach,^ and a road leading to a dock and landing, or ferry ,^ have been held to be high- ways. And in the latter case it was said, that such a road does not cease to be a highway, though such ferry has been changed, and though some part of the way has been appropriated and built upon, if the passage continues open to the same dock and land- ing. But, in a more recent case, a street terminating upon private land and extending neither to another way, a mill, a market, nor other public place, was held to be incapable of dedication to the public as a highway.^ But this decision was made previous to that of Bateman w. Bluck ; and from the liberality which American courts have manifested in applying the doctrine of dedication not only to streets, but also to parks, squares, commons, and other places devoted to public use, it is reasonable to believe that they will not hesitate to adopt the latest English de- termination upon this subject.* ' State V. Bartlet, cited by counsel in State v. Nudd, 3 Fost. 331. ' Galatin v. Gardner, 7 Johns. 106. ' Simmons v. Mumford, 2 K. I. 172. See Campbell v. Long, 28 Eng. Law & Eq. 30 ; Holdane v. Trustees of Cold Spring, 23 Barb. 103. * The fact that there is no thoroughfare, while it may not be abso- lutely inconsistent with the existence of a public highway over the locus, certainly to a great extent qualifies the inference to be drawn from the proof of user and enjoyment, since the ordinary and usual enjoyment of such a way, as, for instance, a way to a church, to a market, or public landing-place, in a court or square in a city leading from a public street, but having no other outlet, while it would sufficiently prove a. prescrip- tive right in individuals, and a right by custom in a portion of the pub- lic, would not be sufficient to prove a public right common to every 144 LAW OF HIGHWAYS. [CHAP. III. § 139. Dedication, to be valid, need not be abso- lute, but may be limited both as to the time and mode of enjoyment. Thus, as to limitation in point of time ; in the case of a bridge, used by the public at all times, on foot and with horses, but only occa- sionally with carriages, except in times of flood and frost, when it was unsafe to pass through the river ; at which times carriages always passed over the bridge, which was, when carriages could pass the ford, sometimes barred by means of a post and chain which was locked ; it was held, that the bridge was public ; Lord Ellenborough saying, " Though it must be an absolute dedication to the public, still it may be definite as to time." ^ Yet there cannot be a dedication, subject to a power of resumption to the grantor, for that would be the reservation of a right inconsistent with the dedication to the public.^ § 140. And as to the mode of enjoym,ent ; it is un- doubtedly the law, that there may be a dedication to the public for a limited purpose, as for a footway, horseway, or driftway.^ And in a case where a land- owner suffered the public to use, for several years, a road through his estate, for all purposes except that of carrying coals, though it did not become neces- one ; and an examination of the cases in this view, if of sufficiently prac- tical importance, will probably enable us to explain and reconcile most of the apparently conflicting decisions. ' Kex V. North Hampton,' 2 M. & S. 262 ; Eex v. Hudson, 2 Stra. 909. ' Fitzpatrick v. Robinson, 1 Hudson & Brook, 585 ; Blundell v. Cotter- all, 5 B. & Aid. 315 ; Dawes v. Haskins, 8 C. B. (N. S.) 848 ; Same v. Same, 10 C. B. (N. S.) 875. « Poole V. Huskinson, 11 M. & W. 827 ; 1 Hawk. P. C. ch. 76, § 1 ; Gowen u. Philadelphia Exchange Co. 5 Watts & S. 141 ; Harper v. Charlesworth, 4 B. & C 574; Hemphill v. Boston, 8 Cush. 195; French !/. Marston, 4 Fost. 440 ; Danforth v. Durell, 8 Allen, 242. CHAP, ni.] HOW DEDICATION MAY BE QUALIFIED. 145 sary to decide whether such a limited dedication could be made, yet two of the Judges expressed an opinion favorable to its validity ; one of them say- ing, " The public must take secundum formam doni ; if they cannot take according to that, they cannot take at all," ^ and all agreeing that, if it were not a partial dedication, it was merely a license revocable. § 141. But still it maybe questioned, whether the cases above referred to are absolutely conclusive upon these points, except as regards a dedication for a footway or horseway, &c. It must be remembered that a dedication, to be complete, must be accepted by the public at large, and there is great difiiculty in inferring such an acceptance, from mere user at least, where from the exclusion of one mode of use there is no evidence that the portion of the public, who have occasion to use it in that mode only or chiefly, have assented to the dedication.^ But, whatever may be the better opinion upon these points, it is clear that there cannot be a dedication to a limited portion of the public, as to a parish or to the inhabitants of a particular neighborhood.^ This has been so held, and would seem to flow naturally ' Marquis of Stafford v. Coyney, 2 B. & C. 257. See also Rex v. Lyon, 5 Dow. & Ry. 499 ; The State v. Trask, 6 Vt. 355. And see Mo- rant V. Chamberlain, 6 Exch. 541, for dedication of a highway subject to a pre-existing right of user by the occupiers of adjoining land for the pur- pose of depositing goods thereon. Le Neve v. The Vestry of the Hamlet of Mile-End Old Town, 8 Ellis & B. 1055. ^ Wellbeloved on Highways, pp. 50 - 56. Remarks of Abbott, C. J., in Barraolough v. Johnson, 3 Nev. & Perry, 233 ; Roberts v. Karr, 1 Campb. 262 ; Rex v. Leake, 2 Nev. & M. 595. In this case it was said, that land cannot be dedicated to the public as a highway, with a reser- vation of right of making cuts through the land when wanted for the purposes of draining. = Poole V. Huskinson, 11 M. & W. 827. 10 146 LAW OF HIGHWAYS. [.CHAP. IH. from the nature of the act. The parties to that act, as we have seen, are the donor and the public at large ; and though it inay b^ said, where the dedica- tion is limited in the mode and time of enjoyment, that, inasmuch as the whole public can use it in that particular mode or time, their acceptance may be in- ferred from use ; this cannot be said of a way from the use of which, in any mode and at any time, a large portion of the public are excluded. But though such a partial dedication will be simply void, having no operation against the intention of the owner, yet "prima facie, any dedication will be pre- sumed to be in favor of the whole public, and it will be incumbent on the party denying it to prove the contrary.^ 4. What constitutes a Dedication on the part of the Donor. § 142. We have now seen who may be the parties to a dedication, and what may be its character ; we come next to consider how it may be made on the part of the donor, and upon what evidence estab- lished. No particular formality is required ; it is not affected by the Statute of Frauds ; it may be made either with or without writing, by any act of the owner, such as throwing oj)en his land to the public travel, or platting it and selling lots bounded by streets designated in the plat, thereby indicating a clear intention to dedicate; or an acquiescence in the use of his land for a highway, or his declared assent to such use, will be sufficient; the dedication being proved in most, if not in all, cases by matter ' Penny Pot Landing v. City of Philadelphia, 4 Harris, 79. CHAP. III.] WHAT CONSTITUTES A DEDICATION. 147 in pais, and not by deed. The vital principle of dedication is the intention to dedicate, — the animus dedicandi, and, whenever this is unequivocally mani- fested, the dedication, so far as the owner of the soil is concerned, has been made. Time, therefore, though often a very material ingredient in the evidence, is not an indispensable ingredient in the act of ded- ication. " It is not like a grant presumed from length of time ; if the act of dedication be unequiv- ocal, it may take place immediately ; for instance, if a man builds a double row of houses, opening into an ancient street at each end, making a street, and sells or lets the houses, that is instantly a highway." ^ If accepted and used by the public in the manner intended, the dedication is complete, precluding the owner and all claiming in his right, from asserting any ownership inconsistent with such use. Dedica- tion, therefore, is a conclusion of fact to be drawn by the jury from the circumstances of each partic- ular case ; the sole question as against the owner of ' The language of Chambre, J., in Woodyer v. Hadden, 5 Taunt. 125. Vide Poole v. Huskinson, 11 M. & W. 827 ; Jarvis v. Dean, 3 Bing. 447 ; British Museum v. Finnis, 5 Carr & Payne, 460 ; Barraclough v. Johnson, 4 Ad. & El. 99 ; Cincinnati v. White, 6 Peters, 431 ; Eegina v. East Mark, U Ad. & El. 876 ; Wright v. Tukey, 3 Cush. 290; Hobbs v. Low- ell, 19 Pick. 405 ; State v. Wilkinson, 2 Vt. 480; Abbott w. Mills, 3 Vt. 521 ; Matter of Thirty-second Street, 19 Wend. 128; Matter of Thirty- ninth Street, 1 Hill, 191 ; Pearsall v. Post, 20 Wend. 119, and 22 Wend. 425; Trustees of Do.ver v. Fox, 9 B. Mon. 201; Cole v. Sprowl, 35 Maine, 161 ; Macon v. Franklin, 12 Georgia, 239 ; Warren v. Jackson- ville, 15 111. 236 ; Alves v. Henderson, 16 B. Mon. 131 ; City of San Francisco v. Scott, 4 Gal. 114 ; Proctor v. Lewiston, 25 111. 153 ; Bissell V. New York, &c. Railroad Co. 23 N. Y. 61 ; Gwynnet). Homan, 15 Ind. 201 ; Ely v. Bates, 5 Wis. 467; Morey v. Taylor, 19 111. 631 ; Brown v. Worcester, 13 Gray, 31 ; Baldwin v. Buffalo, 29 Barb. 396 ; Jersey City K Morris Canal Co. 1 Beasley, 547; Eagan v. McCoy, 29 Wis. 356; Morse Bleeker v- Ballou, 3 Wend. 263. " Sharp V. Spier, 4 Hill, 76. 198 LAW OF HIGHWAYS. [CHAP. IV, of The Mayor of New YorV that an assessment is not regarded as a burden, but as an equivalent for benefit, and, therefore, cannot be regarded as a tax ; but the decision rested clearly and safely on other grounds ; although if it had stood on this alone it would have established nothing except that an assessment was not a tax within the meaning of the 7th section of the act incorporating the village. The question, whether street assessments are not made in virtue of the power of taxation, was not in that case decided. On the contrary, a question involving that point was expressly reserved as un- decided, by Mr. Justice Bronson, who said : ' I have not overlooked the fact that street assessments are, by the third section of this act, made a lien or charge on the land. Whether that fact, taken in connection with the power conferred by the 7th section, will authorize a sale of land for street assess- ment, we are not now called upon to determine.' " § 175. But the point now more especially debated, was involved and decided in the Court for the Cor- rection of Errors, in the case of The Mayor, &c. of New York v. Livingston.^ " In that case, a street was opened in the city of New York, upon lands which had been previously dedicated by John K. Livingston to the public use for that purpose, but Mr. Livingston had never in any other way con- veyed his title to the land within the limits of the street. He was the owner of the lands subject to the easement. He owned also lots of land adjoining the street, which, together with lots owned by other ' In the Matter of The Mayor of New York, 11 Johns. 77. " The Mayor, &c. of New York v. Livingston, 8 Wend. 85, 101. CHAP. IV.] AUTHORITY TO ASSESS. 199 proprietors, were assessed for the opening and im- proving the street under a provision similar to that by which the assessment now in controversy was made in the city of Brooklyn. The amount of the assessment against him upon the adjoining lots was set off against the value of his interest in the lands within the street, and overbalanced it. He was charged in the assessment with the balance only. It did not appear that he was allowed, in adjusting the balance, less than the full value of his lands within the street subject to the easement. He com- plained of the whole proceeding. First, because he was not allowed the full value of the land taken for the street, without reference to the easement ; and, secondly, he complained of the assessment, by which his lots adjoining the street were charged with his proportion of the expense of the improvement, in the same manner as other adjoining lots were charged. The objection to the proceedings was, that they were unconstitutional. The late Chan- cellor, in his opinion, said : ' It was not denied that the legislature have the power to authorize the taking of private property for the purpose of public streets, upon making just compensation to the own- ers ; but it is insisted by the plaintiff's counsel, that the increased value of the adjacent property cannot be set off against the loss or damage sustained by him in taking his property for a street, and be con- sidered as a just compensation for the property so taken.' The Chancellor pronounced this objection untenable, and proceeded : ' The owner of property taken is entitled to a full compensation for the damage he sustains thereby ; but if the taking of 200 LAW OF HIGHWAYS. [CHAP. IV. his property for the pubhc improvement is a benefit rather than an injury to him, he certainly has no equitable claim to damages. Besides, it is a well- settled principle, that where any particular county, district, or neighborhood is exclusively benefited by a public improvement, the inhabitants of that dis- trict may be taxed for the whole expense of the im- provement, in proportion to the supposed benefits received by each. In this case, if the whole value of the property taken for a street in the city of New York is allowed to the individual owner, the proprietors of the adjacent lots must be assessed for the purpose of paying that amount; and if the individual whose property is taken is the owner of a lot adjacent, that lot must be assessed ratably with the others. It therefore makes no difference whether he is allowed the whole value of the property taken in the first instance, and is assessed for his portion of the damage, or whether the one sum is offset against the other in the first place, and the balance is only allowed.' Senator Sherman delivered an opinion, concurring with the Chancellor in the result, and these opinions were sustained by the unanimous vote of the Court for the Correction of Errors." § 176. The above case affords an example of the exercise of the two powers before referred to, viz., of the power of eminent domain^ and the power of taxation ; the first in taking the land for the use of the street, and the second in requiring contribution to defray the expenses of improving it, from that class of persons on whom the burden ought to fall. " The case afi&rms the validity of street assessments, ' See ante, Chap. II. § 77. CHAP. IV.] AUTHORITY TO ASSESS. 201 in virtue of the latter power. In Owners of Ground Assessed v. Mayor, &c. of Albany,^ the land of Mr. Betts, adjoining a square laid out in Albany, was assessed to pay the expenses, and Chief Justice Savage said : ' It cannot be conceded that any con- stitutional question properly arises in relation to Mr. Betts. His property has not been taken for public use.' And although he did not affirm or deny that the assessment was a tax, he affirmed the validity of the assessment against the objection of unconstitutionality expressly raised ; and this could have been done on no other principle than that it was an exercise of the power of taxation." § 177. " In 1835, an act was passed (ch. 309), ap- pointing commissioners, and authorizing them to 'assess the sum of |41,000 upon the owners of all the real estate situated in the city of Utica, in pro- portion to the benefits which each shall be deemed to have acquired by the location of the northern ter- mination of the Chenango Canal, in the city of Utica, as nearly as the same can be estimated.' The statute authorized the assessments to be collected in the same manner as taxes in Oneida county were collected. The commissioners and collector were sued for attempting to collect the assessment. But the statute was held to be constitutional, and the assessment was adjudged to be within the lawful exercise of the power of taxation.^ In Stryker v. Kelly,^ there had been a street assessment in the city of New York, and its validity was strenuously ^ Owners of Ground Assessed v. Mayor, &c. of Albany, 15 Wend. 376. ' Thomas v. Leland, 24 Wend. 65. ' Stryker v. Kelly, 7 Hill, 9, 23. 202 LAW OF HIGHWAYS, [CHAP.. IV. contested. Mr. Justice Beardsley says : " This was local taxation for a local purpose, and falls within the legitimate exercise of the taxing power." In this opinion Chief Justice Nelson concurred ; and Bronson, J., agreed that the New York street law was free from constitutional objection, except on the ground of a provision therein which is not contained in the street laws of Brooklyn, under which the assessment now in question was made. We have, therefore, in that case, the unanimous opinion of the Justices of the Supreme Court in favor of the validity of street assessments, so far as respects their consti- tutionality. The judgment in Stryker v. Kelly ^ was afterwards reversed, but upon a point not affecting the question now under consideration. The exami- nation of the cases decided in this State terminates in the conclusion (although several of the cases con- tain dicta to the contrary), that street assessments,, like that in controversy in this suit, have been adjudged, both in the Supreme Court and in the Court for the Correction of Errors, to be lawful and constitutional taxation." § 178. "Taxation similar to that now under con- sideration has been sanctioned by long usage in the State of New York. In the Colony and State of New York, the system of taxation for local purposes, by assessing the burden according to the benefit, has been in force for more than one hundred and fifty years. It was applied to highways in the county of Ulster, in 1691.^ The power was given to the corporation of New York in the same year.^ ' Stryker v. Kelly, 2 Denio, 323. ' Bradf. Laws, 45. ' Ibid. 9. CHAP. IV.] AUTHORITY TO ASSESS. 203 The statute remained in force in 1773, when Van Schaack's edition of the statutes was published, and no evidence of its repeal is found until 1787, when it seems to have been revised and its provisions re- enacted under the State Constitution.' The colonial statute was doubtless in force when the State Con- stitution was adopted. It is not unworthy of remark, that in April, 1691, a bill of rights was passed for the security and protection of the people of the province. The statute authorizing the assessments first mentioned was passed afterwards during the same year. In January, 1787, an act was passed, declaring the rights of the citizens of this State, and prohibiting, among other things, that any person should be deprived of his property except by due course of law. The statute of 1787, authorizing street assessments in the city of New York, was passed by the same legislature, and sanctioned by the same council of revision, which had assented to the bill of rights. Street assessments, upon the same principle, were authorized, in the city of New York, in 1793,=' and in 1795,^ and in 1796,* and in 1801,* and in 1813.^ The corporation of New York have had and exercised authority to make street assessments from the infancy of that city. Similar powers have been conferred on nearly every city, and on many of the villages, in this State. It has also been applied to highways, to turnpike roads, and to the draining of marshes." ' Van Schaack's Law, 8, 9 ; 2 Jones & Var. 152 ; 1 Greenl. 443. « 3 Greenl. 58. " Ibid. 244, 245. » Ibid. 333, 334. ' 2 K. & 11. 130. » 2 K. L. 407. 204 LAW OF HIGHWAYS. [CHAP. IV, § 179. "The system of taxation was in force in New York at the time of the making and adoption of its second and third constitutions, and has stood in our statute books along with the constitutions, from 1777 until now, without prohibition or restraint. Sales of real estate to large amounts have been made, and the lands so sold are now held on the faith of the validity of these assessment laws. Pro- ceedings under them have been brought before the Supreme Court for review, continually, during the last thirty years. They have been litigated often on the ground of irregularity, and sometimes upon con- stitutional objections. They have been confirmed in cases almost without number. If the uniform practice of the government, from its origin, can settle any question of this natiire, the power of the legislature to exercise this kind of taxation would seem to be established by it. Constitutional objec- tions never prevailed against it until 1846, when the case of The People v. The Mayor, &c. of Brooklyn was decided." § 180. The case just referred to was decided in 1846, and was overruled in 1851, by the Court for the correction of errors ; ^ that Court deciding, that a statute which authorizes a municipal corporation to grade and improve streets, and to assess the ex- pense among the owners and occupants of land bene- fited by the improvements, in proportion to the amount of such benefit is a constitutional and valid law, and ^ People V. Mayor, &c. of Brooklyn, 4 Comst. 419 ; and see the case appealed from, in 6 Barb. 209 ; and see case between parties of the same name, in 9 Barb. 435 ; and see People v. Haws, 34 Barb. 69 ; People V. Lawrence, 36 Barb. 177. CHAP. IV.] ATJTHOEITY TO ASSESS. 205 is not in conflict with the constitutional provision, that " no person shall be deprived of life, liberty, or property, without due process of law, nor shall pri- vate property be taken for public use, without just compensation." § 181. Taxation, as thus practised and sanctioned in the State of New York as constitutional, has been vindicated and enforced in Pennsylvania.^ An act of the legislature of Pennsylvania not only author- ized viewers to take into consideration the advan- tages of laying out a highway to land-owners, but it also authorized them to assess the lots benefited, for the advantage of those who may be injured by the improvement; and the Supreme Court of that State, in giving their opinion, by Kogers, J., upon this branch of the act, said: "The act goes still farther. It not only authorizes the viewers to take into considera- tion the advantages, &c., but it also authorizes them to assess the lots benefited for the advantages of those who may be injured by the improvement, and it is of this the counsel chiefly complain. This is certainly a new feature which has been introduced into the statutes of this State, but I do not conceive that the principle is new. It is copied from New York, where it has been in operation for some time, and where it has received the benefit of a judicial construction in the case of Livingston v. The Mayor, &c. of New York.^ The owner of property taken, is entitled to a full compensation for the damages he sustains thereby, but if the taking of his property for ' Hancock Street (Matter of extension of), 6 Harris, 26 ; Common- wealth V. Supervisors of Galley Township, 29 Penn. State, 121. 2 Livingston v. Mayor, &c. of New York, 8 Wend. 85. 206 LAW OF HIGHWAYS. [CHAP. IV. the public improvement is a benefit rather than an injury to him, he certainly has no equitable claim for damages. Besides, it is a well-settled principle, that when any particular county, district, or neigh- borhood is exclusively benefited by a public im- provement, the inhabitants of that district may be taxed for the whole expense of the improvement, and in proportion to the supposed benefit received by each.-' If the whole value of the property taken for a street is allowed to the individual owners, the proprietors of the adjoining lots must be assessed for the purpose of paying that amount; and if the indi- vidual whose property is taken is the owner of a lot adjacent, that lot must be assessed ratably with the others. If these principles are correct, and it cannot be doubted, it decides the question ; for if a county, district, or town can be assessed for a public improve- ment, on the ground that they are particularly bene- ' fited, there can be no constitutional reason to exempt an individual from assessment on the same principle. It becomes a question of expediency, of which the legislature are the competent and exclusive judges, and not of right. This is a power which must be used with great caution ; but these are considerations that must be addressed to the legislature, rather than to the Courts. The only restriction upon the power of the legislature, where the public at large, the in- habitants of any particular section of a state, or a town, or an individual, have an interest in the con- templated improvement, as citizens merely, is that the property shall not be taken without just com- ' Grant v. Courier, 24 Barb. 232 ; Howell v. London Dock Co. 8 Ellis &B. 212. CHAP. IV.] AUTHORITY TO ASSESS. 207 pensation to the owner, and in the mode prescribed by law That this great power may be abused, there can be no doubt, but that it has been in this case, we are not at liberty to suppose. The Court of Common Pleas affirmed the report of the viewers, on the ground, certainly, that the property of the de- fendant has been benefited to the amount of the assessment. There is, therefore, nothing contrary to natural right, and there is nothing in the constitu- tional objections which have been made." ^ The acts of the legislature of Pennsylvania, authorizing the paving and grading of streets in the city of Alle- ghany, and the assessment of the expenses of the same upon the owners of lots fronting on such streets, and prescribing the manner of collecting said assessments, were held to be a proper and con- stitutional exercise of the taxing power by the legis- lature.^ § 182. In Connecticut, the Supreme Court of Errors has taken the same view of the law. Hinman, J., in delivering the opinion of the Court, thus expressed himself: "The only provision that can be found, at all bearing upon this subject, is the one already alluded to, that, ' the property of no person shall be taken for public use without just compensation there- for,' and this has respect to property taken by the right of eminent domain, as where the land itself is taken for a highway or other public work, or where property is directly taken for the use of the govern- ment, and has no reference to the collection of taxes, ' MoMasters v. Commonwealth, 3 Watts, 292. = Schenley v. City of Alleghany, 1 Casey, 128; and the same held in Sharpless v. City of Philadelphia, 9 Harris, 147. 208 LAW OF HIGHWAYS. [CHAP. IV. where money is taken as the contributive shares of individuals to the public burdens. The rule of taxa- tion, which in this particular case was adopted, is certainly as equitable as any other. It attempts to apportion each man's tax to the benefit which he is to receive from the improvement for which it is ex- pended. Most of our highways are laid out by the selectmen of the towns, and the expense is borne by the town in which the highway is located, though, in regard to many of them, the inhabitants of the towns have a much less interest than the public beyond the local limits of the town ; and, in regard to many others, they are principally for the accommodation of some, perhaps a small portion, of the town's inhabi- tants. But the towns bear the burden, because the legislature has thrown it upon them. It might, with the same propriety, have thrown it upon the counties, or even upon the lesser territorial corpo- rations, and although injustice may occasionally be done by compelling a small town to construct an expensive bridge for the benefit, principally, of per- sons outside of its limits, yet the general operation of the law is, perhaps, as equitable as any system which could be devised. At any rate, we have never heard it agitated, as a debatable point, that the system was so unjust as to be unconstitutional or illegal."^ And he was of the opinion that these principles were deducible from the acknowledged right of the public, in taking land for a highway, to consider the benefits thereby accruing to the owner as a partial or complete offset to his claim for com- pensation. " This," he adds, " is, in effect, but one ' Nichols V. Bridgeport, 23 Conn. 189. CHAP. IV.] AUTHORITY TO ASSESS. 209' way of taxing an individual, peculiarly benefited by the laying out of a highway, for a portion, and it may be only a portion, of his just share of the whole tax, for the public improvement. If you can, in this way, tax one individual for the whole or a part of his share of the public burden, it seems to follow, that you can, for the same reason and on the same ground, viz., the special and peculiar bene- fit he has received or is to receive by the im- provement, tax every other individual who is sim- ilarly situated. And if you can tax him to the extent of the full value of the land actually taken, there is no reason that will limit the tax to that pre- cise amount, or to any amount short of the full value of the benefit he receives, provided all others, simi- larly situated, are taxed proportionably." In Mary- land, also, a similar statute has been decided to be constitutional.^ § 183. In Ohio, a city coimcil, pursuant to the act incorporating the city, may assess a special tax upon the owners of property in the city, benefited by the opening of a street; but it cannot be done unless there be an ordinance, that the person thus assessed, shall have, if he desire it, a review, with the privilege of naming two of the persons composing the board of review.^ Again, the act of Assembly, in Ohio, con- ferring upon cities a power to levy assessments for the improvement of streets upon the property abut- ting thereon, in proportion to the number of feet ' Alexander v. The Mayor of Baltimore, 5 Gill, 383. ' Cuberston v. City of Cincinnati, 16 Ohio, 574, and Bee Burnetii. Same, 3 Ohio, 73 ; Hill v. Higdon, 5 Ohio State, 243 ; Marion v. Epler, Ibid. 250; Ernst u.Kunkle, Ibid. 520. 14 210 LAW OF HIGHWAYS. [CHAP. IV. front so abutting, is held not to be in conflict with the constitutional provision in regard to taking pri- vate property for public use ; also, that it does not conflict with that provision of the State Constitution which declares, that " laws shall be passed taxing by uniform rule, all moneys, &c. ; and all real and per- sonal property, according to its true value in money.'' § 184. In New Jersey, a statute was enacted, giving power to the common council of Newark, to direct any public street opened by an individual on his own lands to be graded, put in repair, and made fit for travel, and to assess the whole expense thereof upon the lands of the person opening the street. This act was passed in 1849, and, by virtue of its provisions, a street, opened in 1847 by the voluntary act or dedication of the owners of lands through which it passed was graded and repaired by the city and the expense assessed upon the owners. It was contended that the act was retrospective and uncon- stitutional. But the Court held the act to be valid, and per Nevins, J. : " If land-owners see fit, for their own benefit and advantage, to throw out a portion of their lands, and mean that the same shall be rec- ognized and used as a public street, they are bound by every fair principle to put it in a condition to be safely used as such, and have no right to assess upon the public the expense of having this done. The corporation, under the act of 1849, may enforce this duty by assessing upon the land-owners this expense, whether the dedication was made before or after the > Ridenour v. SafEn, 1 Handy, 464, and see likewise Bonsall v. Town of Lebanon, 19 Ohio, 421 ; Scovill v. The City of Cleveland and others, 1 McCook, 126. CHAP. IV.] AUTHORITY TO ASSESS. 211 passage of the act." ^ And, in the same State, where it was provided that the expense for improvements in opening, altering, widening, filHng up, &c. streets, shall be assessed upon and paid by the lands and real estate benefited by the same, it was held, that the consent of the owners, or a majority of them, of cer- tain lots to be assessed, was not necessary for such purposes.^ § 185. In Tennessee, power was given by statute to the mayor and aldermen of Franklin to cause fooi> pavements and sidewalks to be constructed by the owners of adjoining lots, and in case of their neglect so to do, when duly required, to contract them- selves, and pay for the construction or repair of the same, the amount paid to constitute a charge against such owners. A case arose under a municipal ordi- nance, made by virtue of the power given by the statute, in which it was contended that the ordi- nance was in the nature of a tax levied upon the owners of lots, and as such, that it was unconstitu- tional because unequal. But Green, J., delivering the opinion of the Court, said, "We do not think that this law levies a tax. A tax is a sum which is required to be paid by the citizen annually for revenue for public purposes. But this ordinance leaves no sum of money to be paid by the citizens. ^ The State v. Dean, 3 Zabriskie, 335. ' State (Mann, prosecutor), v. Mayor, &c. of Jersey City, 4 Zabr. 662 ; and see State v. Jersey City, 2 Dutch. 444 ; State v. City of New- ark, 3 Dutch. 185 ; Same v. Hudson, Ibid. 214. It is also held in New Jersey, that an incorporated city may grade and pave a turnpike road within the city limits, and assess the owners of adjoining lots therefor ; and in such case the owners assessed were not allowed to object that the rights of the corporation turnpike are infringed. State v. New Bruns- wick, 1 Vroom, 395. 212 LAW OF HIGHWAYS. [CHAP. IV. It requires a duty to be performed for the well- being and comfort of the citizens of the town. It is in the nature of a nuisance, to be removed. And if an ordinance were to require that each owner of a lot in town should remove nuisances from his lot, and on failure to do so the town constable should remove the nuisance, and the party should pay the expense of the work, it would hardly be suggested that the expense so incurred would be a tax. And yet such a case is in principle analogous to the one before us. The ordinance in question is therefore not uncon- stitutional on the ground of being an unequal tax." ^ In Massachusetts and Illinois, statutes containing similar provisions have passed the ordeal of the Courts.^ § 186. In Mississippi, a statute was enacted " to provide for the erection, repair, and preservation of levees on the Mississippi Eiver in the county of Inaquena, which authorized " a uniform tax, not ex- ceeding ten cents per acre upon all lands lying on or within ten miles of the river in said county, subject to taxation ; and a uniform tax of not ex- ceeding five cents per acre on all lands in said coun- ty subject to taxation, lying ten miles from the Mis- sissippi River." It was contended that the statute ' Mayor and Aldermen v. Maberry, 6 Humph. 368. Affirmed in Washington v. The Mayor and Aldermen of Nashville, 1 Swan, 177; Goddard's case, 16 Pick. 505, in which the Court upholds an ordinance of the city of Boston requiring the occupants or overseers of lots to remove the snow from the adjoining sidewalks, or in default thereof to pay not less than one nor more than four dollars, was referred to as an analogous case. " Lowell V. Hadley, 8 Met. 180 ; Lowell v. French, 6 Cush. 223 ; Morris v. The City of Chicago, 11 111. 650 ; and see Mclntyre v. State, 5 Blackf. 384. CHAP. IV.] AUTHORITY TO ASSESS. 213 was repugnant to the provisions of the constitution of that State, which declared that " all freemen are equal in rights," and that " no men or set of men are entitled to exclusive, separate, public emolu- ments or privileges, from the community, but in consideration of public services," and also that " private property shall not be taken for public use without just compensation," and therefore void. But these objections were overruled by the High Court of Errors and Appeals, and the statute sustained.^ § 187. The idea in Kentucky, that an assessment of this kind must be made to embrace all the prop- erty within the city or ward, in which the improve- ment is made, seems to have originated from the opinion of a Judge of the Court of Appeals of that State in the case of Sutton's Heirs v. City of Louis- ville.^ But that opinion was founded* mainly on a clause in the constitution of that State, which is peculiar ; and in respect to this point, the opinion was afterwards modified by the same Judge, and the princijDle in effect abandoned in the case of the City of Lexington v. McQuillan's Heirs.^ The charter of the last-mentioned city contained a provision which authorized the Mayor and Common Council to cause the streets therein to be paved or turnpiked at the expense of the estates fronting such streets, and, when the work was completed, to apportion the ex- pense eqiially among the lot-owners. McQuillan's heirs were charged with a sum which greatly ex- ceeded the proportionate cost of the entire work ' William v. Commack, 27 Miss. 209; Egyptian Levee Co. v. Hardin, 27 Miss. 495. 2 Sutton's Heirs v. City of Louisville, 5 Dana, 28. ' City of Lexington v. MuQuillan's Heirs, 9 Dana, 513, 516. 214 LAW OF HIGHWAYS. [CHAP. IV. done opposite the lots of ground respectively in the same square, in consequence of a deep cut and stone wall made opposite to their lot ; and the Court held, that the apportionment of the expenses was irregular and erroneous, because the ratio of contribution was required by the charter to be equal among the lot- owners. But the act was held to be valid and con- stitutional on the ground that each square, so far as its streets and sidewalks are concerned, might be considered a distinct municipality or local public. Such was the view taken by Euggles, J., in giving the opinion of the Court of Appeals of New York, in Mayor, &c. of Brooklyn.^ 1 4 Comst. 429 ; Powell v. St. Jo.ieph, 31 Mis. 347. It is also held in Kentucky, in the case of Slack v. Maysville & Lexington Railroad Co. 13 B. Monr. 1, that the legislature has power to impose local taxation to carry out local enterprises, and it is not a valid objection that the propriety of levying the tax is referred to the people who are affected by it, to be decided by the vote of the majority. Kegina u. Warner, 3 7 Eng. Law & Eq. 86. Assessment for sewerage need not provide for houses thereafter to be built and use the sewer. In addition to the States mentioned in the text, it has been held in other States, that laws imposing local and special taxes and assessments for expenses of local improvements are constitutional and valid. In Iowa, Burlington Railroad Co. u. Mount Pleasant, 12 Iowa, 112; in Illinois, City of Ottawa v. Macy, 20 111. 413; Chicago v. Wheeler, 25 111. 278 ; in Wisconsin, Rogers v. Milwaukee, 13 Wis. 610 ; in Florida, a subscrip- tion to stock of a railroad company within the county is held to be for a county purpose. Cotton v. Commissioners Leon Co. 6 Ala. 610; in Louisi- ana, New Orleans v. Milwaukee, 12 La. An. 769 ; New Orleans v. Tur- pin, 13 La. An. 56; in California, Burnett v. Sacramento, 12 Cal. 343; in Minnesota, Morrison v. St. Paul, 5 Min. 108; and see Woodbridge v. Detroit, for a full discussion in differing opinions. The Act of 1850, authorizing the city of Charlestown, where a strip of land off the lots on one side of the street is added to wideil the street, to assess the expense, or a portion of it, upon the lot-holders on the opposite side, whose land has not been taken, is unconstitutional. State v. Charlestown, 12 Rich. 702. CHAP. IV.] PROCEEDINGS UNDER AUTHORITY TO ASSESS. 215 3. Proceedings under Authority to Assess. § 188. We have already seen that in proceedings to take private property for pubhc use, m invitum, and under the provisions of positive law, every requisite of the statute must be complied vfith and should appear on the face of the proceedings under which the property is attempted to be taken. The same principle applies to proceedings under author- ity to assess for benefits.-^ In construing such a statute, the leading rule is to examine all its parts, and, if possible, reconcile and give effect to all its provisions.^ An interested Judge is, upon principle, incompetent to act and decide, and of course unable to serve. The body, authorized to appoint the asses- sors, has, by implication, the power to remove them and appoint others in their places.^ § 189. If no notice is required to be given by the statute of the time when the assessors meet to make an estimate of the benefits conferred, no notice need be given. Their duties are analogous to the duties of town assessors ; and there is no more necessity of their giving notice than in the case of ordinary assessors of taxes.* But where notice is required to ' Ante, Chap. II.; Barney v. City of Buffalo, 15 Barb. 457; Rex v. Haslingfield, 2 M. & S. 558 ; Matter of Hamilton Avenue, 14 Barb. 405 ; Hill et al. v. Mohawk and Hudson Railroad Co. 3 Seld. 152 ; Flat- bush Avenue (Matter of), 1 Barb. 286 ; 5 Denio, 206 ; Dunlap v. Mount Sterling, 14 111. 251 ; Mitchell v. Kirtland, 7 Conn. 229 ; Hobart v. Fris- bie, 5 Conn. 592; Lowell v. Wheelock, 11 Cush. 391 ; State v. Jersey City, 2 Dutch. 444 ; Beg. v. Worcestershire, 25 Eng. Law & Eq. 150. ^ Nichols V. Bridgeport, 23 Conn. 189. ' Laimbeer v. The Mayor, &c. of New York, 4 Sandf 109 ; Epler v. Niman, 5 Ind. 459. * Nichols V. Bridgeport, supra; Curry v. Mount Sterling, 15 111. 320 ; Stewart v. Board of Police of Hinds County, 25 Miss. 479. 216 LAW OP HIGHWAYS. [CHAP. IV. be given by statute, it must be given as prescribed, or the proceedings of the assessors will be void. Thus, where by a city ordinance, the owners of lots bounding our streets were to be charged with the expense of sidewalks constructed in front of their lots, in case they should neglect of themselves to construct the same, after thirty days' notice so to do, it was held, that a notice requiring the construction of such a sidewalk within seventeen days, would not entitle the city to charge the lot>owners with the expense thereof, notwithstanding more than thirty days elapsed after the giving of the notice before the construction by the city.^ § 190. But in a case where it was required that the report of the commissioners should contain "the names of the persons interested in the premises and a statement of their respective interests, and the proportion of the expense of the improvement which each ought to bear," it was held, that a report in which certain lots were designated, not by the names of the owners but by less specific designa- tions, was invalid, because in disregard of the statute, and also for the more general reason that the parties thus indefinitely indicated would be deprived of their property without an opportunity of defending them- selves. It sometimes becomes necessary, it was re- marked, especially in proceedings like this, in rem, to proceed against persons who are unknown ; but Courts have no power to do so, unless the legislature has interposed, and by some sort of substituted ' Washington v. The Mayor and Aldermen of Nashville, 1 Swan, 177; The Owners of Ground, &c. v. The Mayor of Albany, 15 Wend. 374. CHAP. IV.] PROCEEDINGS UNDER AUTHORITY TO ASSESS. 217 service, given the Court jurisdiction over the person. Without some such statutory provision, if any of the owners are unknown, a lawful assessment cannot be made, nor can the Courts confirm such a report without violating one of their most sacred principles of action ; that, namely, of giving the party inter- ested an adequate opportunity of being heard iu defence of his right.^ § 191. Where an act provided, that damages caused by the laying out of streets in a city should be appraised by three judicious freeholders of said city, it was held, that the fact that the appraisers were freeholders, was a jurisdictional fact, which could only be shown by the appointment itself, or the record of it, and, if it did not so appear, the appraisal was void, the want of jurisdiction being an objection which was not and could not be waived by an appeal from the appraisal by the party inter- ested. But, it was further held, the invalidity of the appraisal did not affect a subsequent assess- ment for benefits, regularly made, under another section of the same act, by a different tribunah For although it is true that an assessment consists in finding the excess of the benefit over the injury, and cannot therefore be made until it is first ascer- tained what is the amount of the injury, yet the assessors are not bound to resort to the appraisers to ascertain this fact, but may and must, of neces- sity, determine it for themselves.^ ' Flatbush Avenue (Matter of), 1 Barb. 286. But see John and Cherry streets (Mitter of), 19 Wend. 659; William and Anthony streets (Mat- ter of), Ibid. 678. ' Nichols V. Bridgeport, 23 Conn. 189 ; and see Williams v. Cammaok, 27 Miss. 209. 218 LAW OP HIGHWAYS. [CHAP. IV. § 192. The constitution of New York contains a provision as follows : " When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the State, shall be ascertained by a jury, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law." By the charter of the city of Utica, in proceedings to lay out, widen, &c. streets within the city, power was given to the common council to appoint five disinterested freeholders of said city, to ascertain and report a description of the real estate required to be appropriated, with the names of the owners and the recompense which should be made to them respectively therefor, and also to report what, if any, benefit each parcel of land would receive. This provision of the charter was held to be repugnant to the section of the constitution, above quoted. The word jury, as used in that section, is to be taken in its usual meaning, and imports, necessarily, the idea of a body having the usual characteristics, and acting substantially through the accustomed forms by which the powers of a jury are exercised.^ § 193. The appointment of commissioners of esti- mate and assessment does not operate like a notice of lis petidens, so as to prevent an owner of land from going on to improve it, by erecting buildings thereon. Therefore, where such commissioners, ap- pointed under a resolution for- the widening a street in the city of New York, allowed the value of a cer- tain parcel of land taken for that purpose, but re- fused to allow any thing for damages to a building ' Clark V. The City of Utica, 18 Barb. 451. CHAP. IV.] PROCEEDINQS UNDER AUTHOEITY TO ASSESS. 219 thereon, on the ground that it had been erected after the passage of the resolution, it was held that their action, in refusing to allow for damages to the building, was erroneous. It was said, that it would be unjust to require every owner of land to refrain from building on his own land, or to conform his new building to a plan merely proposed by the city, when the city does not bind itself to adopt an im- provement, either by passing a resolution to have it done, or by having commissioners appointed to carry it out, but may, even after delaying several years, and after the new building had been made to conform to the proposed plan, discontinue the pro- ceeding at any time before the confirmation of the commissioners' report by the Supreme Court.^ § 194. In New York, it has been held, that it is not the duty of the commissioners to pass upon con- flicting claims of title, where they depend either upon strongly controverted facts, or difficult ques- tions of law. These are matters which should be settled by courts and juries, and the commissioners may, in such cases, report without specifying the names or the estates or interests of the owners, and generally say, that the land belongs to unknown owners ; and the Court, after settling the principles upon which the assessment is to be made, will send back the report, if necessary, for revisal and correc- tion. When land, required for the contemplated improvement, is held for a term of years under ' In the Matter of widening Wall Street, 17 Barb. 617; Matter of 4th Avenue,' 3 Wend. 452; The Corporation of New York v. Mapes, 6 Johns. 46; Matter of Canal Street, 11 Wend. 154; 20 Ibid. 618; 18 Johns. 546. But see Matter of Furman Street, 17 Wend. 649. 220 LAW OF HIGHWAYS. [CHAP. IV. lease, it is the duty of the commissioners to con- sider in their estimate all the covenants and con- ditions in the lease. Consequently, if there be a covenant for a renewal, this is the subject of esti- mate and assessment, for though it is true that such a covenant does not create a legal estate in the land, yet a Court of Equity regards it as an estate, and the statute provision for all parties and persons interested in the land, requiring a just and equitable estimate of their loss and damage, is broad enough to embrace the equitable interest created by the covenant for a renewal. Where the owner has the unrestricted power of alienation, and the property may be converted to any new use at his pleasure, the only safe and practical course for the commisr sioners is to disregard the present use of the prop- erty, and the purpose of the owner, in relation to its future enjoyment, and adopt, as their only standard, the market value of the land taken or benefited. In the case of churches and lands, which can only be used for a cemetery, a different rule applies, and in- asmuch as the benefit to them must be small, in comparison with that to other property, they ought, therefore, not to contribute in like proportion.^ § 195. An act of the legislature of Pennsylvania required the viewers to ascertain and determine ' Coutant V. Catliti, 2 Sandf. 485 ; William and Anthony streets, 19 Wend. 6 78; Furman Street, 17 Ibid. 668; Matter of the Mayor, &c. 11 Johns. 77; Albany Street, 11 Wend. 1.50. The purchase of a lot be- tween assessment and reassessment, leaves the purchaser liable for the reassessment. Butler v. City of Toledo, 5 Ohio State, 22.5. An assess- ment on real estate by the front foot to pay for improving an adjoining street does not violate the Constitution of 1851. Ernst v. Kunkle, 5 Ohio State, 520 ; upon the fair cash value of land exclusive of build- ings, Springfield w. Gay, 12 Allen, 612. CHAP. IV.] PROCEEDINGS UNDER AUTHORITY TO ASSESS. 221 what lots in the vicinity of the extension of a street would probably be benefited by the opening of the street, and the damage occasioned by such opening, to be divided and apportioned upon such lots ; and the viewers having reported, that they had agreed and adjudged, that each of certain lots, described in the report and schedule, and on a portion of a map of the city attached, are, in their judgment, bene- fited and increased in value to the amount assessed upon each of said lots, and that the amount be, and the same is, hereby assessed and adjudged to be paid by the said lots, the owners, or reputed owners, being shown in the report or schedule, and the amount assessed upon each lot being stated; it was held, that this was a sufficient compliance with the terms of the act.^ § 196. Under a section of a city charter, pro- viding for the improvement of streets, by an assessment to be laid upon ground bounding on such streets, the committee of estimate and assess- ment need not be appointed before adopting the ordinance for its construction. Such assessment, under the said section, need not be levied upon all the lands on such street, but only upon those bounding on the improvement. It is no objection to such assessment, that it exceeded the actual ex- pense of the work, provided it was in accordance with the estimate, made in good faith.^ § 197. A suggestion was thrown out by Ch. J. Nelson, in Elmendorf v. Mayor, &c. of New York,^ ' Extension of Hancock Street (Matter of), 6 Harris, 26. = Scovill V. City of Cleveland, 1 McCook (N. S), 126. » Elmendorf D. Mayor, &c.of New York, 25 Wend. 693. 222 LAW OP HIGHWAYS. [CHAP. IV. that, by the construction of the statute of the State (2 E. S. 407, §§ 175, 176), the assessment might be made after the work had been done, though the point was not decided. But in the subsequent case of Doughty V. Hope,'^ Ch. J. Bronson was unable to perceive how a distinction could be made, as to time, between the estimate and the assessment, and, as he construed the statute, both should pre- cede the making of the improvement. But this was only directory ; and if the improvement be made before the estimate and assessment, it would not prejudice the title of a purchaser under a sale for non-payment of the assessment. In Wetmore v. Campbell,^ however, it was held not to be necessary to cause an estimate of the expense of constructing a public sewer to be made, and the amount thereof to be assessed upon the owners and occupants of premises liable to such assessment, previously to en- tering upon the construction of the work, but that the same might be done for the first time after the work is completed. Since the decision of the case of Stryker v. Kelly,^ the former practice of re- quiring a party, before bringing error from an order confirming the report of the commissioners of esti- mate and assessment, to sue out a certiorari to the justices as commissioners, is not followed, — the order of confirmation being now considered the act of the Court, and not of statute commissioners. § 198. The charter to a city conferred a general ' Doughty V. Hope, 3 Denio, 249. ' Wetmore v. Campbell, 2 Sandf. 341 ; and, to the same effect, see Laimbeer v. The Mayor, &c. of New York, 4 Ibid. 109 ; Manice v. New York, 4 Seld. 120. = Stryker v. Kelly, 7 Hill, 9. CHAP. IV.] PROCEEDINGS UNDER AUTHORITY TO ASSESS. 223 authority upon the common council to cause the streets, avenues, and squares, in certain wards in the city, to be graded, levelled, paved, or macadamized, and to cause cross-walks to be made, &c. The cor- poration of the city contracted for the grading and regulating one of the avenues, at a specified price, to be paid out of the moneys which were to be col- lected for an assessment made for such improve- ment. The Court of Chancery held, that it was the duty of the officers of the corporation to see that a proper assessment was made for the improvement, and that the money was paid thereon, and paid over to the contractors, within a reasonable time after the completion of the improvement ; and the Court also held, that the officers of the corporation, having un- reasonably neglected to compel a proper assessment to be made, the contractors were entitled to pay- ment out of the general funds of the corporation ; and that such general funds be reimbursed out of the proceeds of the assessment, when made.'^ § 199. Commissioners, appointed under the char- ter of the city of Buffalo, are not authorized to assess upon the real estate of those benefited by a canal about to be made, the cost or expense of construc1> ing the same, in addition to their estimate and as- sessment of damages.^ § 200. In New York, upon the coming in of the report of commissioners of estimate and assessment, it is the usual practice for the Court to confirm the report, unless the commissioners have violated some positive rule of law, or have not properly appreciated ' Gumming v. ]\layor, &e. of Brooklyn, 11 Paige, Ch. 596. * Barney v. City of Buffalo, 15 Barb. 467. 224 LAW OF HIGHWAYS. [CHAP. IV. the legal interests of the owner, tenant, or other party interested in the premises. It is not the pro- vince of the Court, any more than of the commis- sioners, to inquire into the policy or expediency of the improvement ordered by the corporation ; though, doubtless, a certiorari would lie for want of jurisdiction or error on the face of the proceed- ings.^ It is, however, the duty of the Court to refuse confirmation, and send back the report, if it plainly appear that the substantial benefits to the persons assessed are not, at the least, equal to all the damage which others will sustain, or that property is not, and cannot be benefited to the extent of the amount as- sessed upon it, although the effect may be to post- pone the improvement or defeat it altogether.^ To determine whether such be the case, affidavits of disinterested persons, in respect to the amounts of henefit and damage, estimated and assessed, will be received and considered, provided the same have previously been submitted to the commissioners 5 but, unless there be a plain and decided preponder- ance of evidence against the judgment of the com- missioners, the report will be confirmed. The report is not only viewed with the same favor as the ver- dict of a jury, that is, is sustained until it be affirma- tively and clearly shown to be unwarranted by the evidence, but is regarded with still greater consider- ation, inasmuch as the commissioners are authorized to act upon personal view and individual knowledge, ' Parks w. The City of Boston, 8 Pick. 218; Canal Street, 11 Wend. 154. = Fourth Avenue, 3 Wend. 453; Albany Street, 11 Ibid. 150; Furmau Street, 17 Ibid. 663. CHAP. IV.] PROCEEDINGS UNDER AUTHORITY TO ASSESS. 225 and even upon information derived from persons not under oath. Their report receives the consideration due to the result of the labors of men selected for their intelligence, integrity, and peculiar qualifi- cations to discharge the duties of their appointment, who, after gathering information from every pos- sible source, have formed and pronounced their judgment. " A review," said Bronson, J., in deliver- ing the opinion of the Supreme Court of New York, " was given to this Court, for the purpose of seeing that the commissioners exercise their authority in the form prescribed by law, and for the correction of any error in the principle upon which they have proceeded in making their award. After what has been done in other cases, I will not say that we cannot go beyond this, and examine questions of value. But there must be something more than the opinions of witnesses against the judgment of the commissioners, — we must have facts. There must be something like demonstration that the commissioners have fallen into error." ^ § 201. Affidavits, which have not been submitted to the commissioners, are inadmissible on appeal, when offered for the purpose of attacking or setting aside the report, but will be received in its support.^ The affidavits of owners of property, taken or as- sessed for benefit, giving their estimates of value or benefit, cannot be received either by the commis- sioners or the Court ; being parties, they cannot be ' In the Matter of William and Anthony streets, 19 Wend. 678 ; In the Matter of John and Cherry streets, Ibid. 659 ; In the Matter of Pearl Street, Ibid. 651. ' In the Matter of William and Anthony streets, supra. 15 226 LAW OF HiGirwAYS. [chap. IV. witnesses. Commissioners are authorized, both at common law and by statute, to put their witnesses under oath. Parties interested, who have omitted to lay their proofs before the commissioners, are concluded, unless they show a want of knowledge of the proceedings on the part of the corporation, in which case the report will be remitted, so that there may be an opportunity to be heard. So if the com- missioners in the course of their proceedings make new parties, by assessing persons for benefit who were not before assessed, by the New York statute such parties are entitled to notice, and, if it be omit- ted, the report will be sent back, that they may have an opportunity of being heard.-^ ' la the Mitter of Jobn and Cherry streets, 19 Wend. 659. CHAP, v.] DAMNUM ABSQUE INJURIA. 227 CHAPTER V. DAMNUM ABSQUE INJURIA. 1. Where Injuries result from THE Acts of Individuals. 2. Where Injuries result from THE Acts of the Public OR its Agents at Common Law. 3. Where Injuries result from THE Acts of the Public or ITS Agents in the Ukited States. Liability for the Want of DUB Care and Diligence in Acts performed under lawful Authority. § 202. When a highway has once been legally established, the public acquire complete control of the soil, over which it passes, for all the purposes of its proper enjoyment and maintenance. For these purposes they may do with it as the indi- vidual may do with his own land, and, so long as they keep within the sphere of its legitimate uses, are amenable to no stricter rule of damages. And, as it often happens that the lawful use of the land of one individual results in injury to the contigu- ous land of another, so these uses of the soil of a highway may result in injury to land along the line of the way, and, as in the former case, so in the latter, the party injured will be entitled to no re- dress. The injury thus resulting is, in the language of the law, damnum absque injuria. But while this is so, it is nevertheless true, that the law exacts from both individual and public a careful and just 228 LAW OF HIGHWAYS. [cHAP. V. use of their own ; the maxim of the law, Sic utere tiio ut alienum noji laedas, being alike applicable to both. To state briefly, therefore, in what way an individual may use his own property, so as to incur or to escape a liability for the damages which may result therefrom to his neighbors, will aid us in de- termining the liability of the public or its agents for damages resulting to individuals from the use of the common highways. 1. Where hijuries result from the Acts of Individuals. § 203. No individual, in the enjoyment of his own property, can lawfully trespass or encroach, even unintentionally, upon the property of another. Thus, if one having a hedge on his own land ad- joining another's close cut the thorns, and they, ipso invito, fall upon his neighbor's land, from which he removes them as soon as possible, he may be treated as a trespasser. And if he lop a tree and the boughs fall against his will on the land of an- other ; or if in building his house a piece of timber fall on the house of his neighbor, or if he so build his house that it throws water off upon the house of his neighbor ; ^ or if, in blasting rocks for a lawful purpose upon his own land, fragments of the rock fall on the house or land of a neighbor ; ^ in all these cases an action lies, for the reason, it is said, that he who is damaged ought to be recompensed. § 204. The same principle applies to the use of a ' Lambert v. Bessey, T. Raymond, 421 ; Penruddocke's case, 5 Rep. 100 ; Fay v. Prentice, 1 C. B. 828 ; E. C. L. R. 50 ; Hay raft v. Creasy, 2 East, 104 ; Scott v. Shepherd, 3 Wils. 403. ' Hay V. The Cohoes Company, and Tremain v. The Same, 2 Comst. 159, 163. CHAP, v.] DAMNUM ABSQUE INJURIA. 229 stream of flowing water. The rule of law is, that each proprietor, over whose land it passes, has a right to the advantage of its natural flow, undi- minished in quantity and uninjured in quality, Though, therefore, a man may use the water of a stream while it is passing through his land, he can- not rightfully divert the water from the land of another lower down the stream; nor can any pro- prietor below throw back the water without the license or grant of the proprietor above.^ And where A., having land through which a river runs to B.'s mill, lops the trees growing on the river's side, and the loppings accidentally impede the pro- gress of the stream, which hinders the mill from working, A. will be liable.^ But if, by digging in « his own ground, he intercept or drain off the water collected from underground springs in his neigh- bor's well, he will not be liable.^ § 205. So the owner of land, under color of en- joying his own, may not set up a nuisance which deprives another of the enjoyment of his property,* Nor can he, under the color of enjoying his own, protect himself from the consequences of his own negligence, unskilfulness, or malicious misconduct. It has, therefore, been held, that an action lies against a party for so negligently constructing a hayrick on the extremity of his land, that in con- ' Mason v. Hill, 5 B. & Ad. 1 ; Gardner v. Village of Newburgh, 2 Johns. Ch. 162 ; 3 Kent, Com. p. 439, note a, 5th edit. ' Lambert v. Bessey, T. Raymond, 422. ' Acton V. Blundell, 2 M. & W. 324 ; South Shield Waterworks Com- pany «. Cookson, 15 L. J., Ex. 315. * Deane v. Clayton, 7 Taunt. 497 ; Ded d. Bish v. Keeling, 1 M. & S. 95. 230 LAW OF HIGHWAYS. [CHAP. V. sequence of its spontaneous ignition his neighbor's house was burnt down ; and, in such a case, the proper criterion, it is said, for the guidance of the jury, is, whether the defendant has been guilty of gross negligence, viewing his conduct with refer- ence to the caution which a prudent man would, under the given circumstances, have observed.-^ § 206. But where, in using his own property, an individual does not invade or appropriate that of another, nor erect a nuisance, nor conduct with negligence, unskilfulness, nor malice, he cannot be made answerable for the consequences which ensue. Thus, as has been said,^ " he may set fire to his fallow ground ; and though the fire run into and burn the woodland of his neighbor, no action will lie ; ^ he may open and work a coal mine in his own land, though it injure the house which another has built at the extremity of his land,* he may build on his own land though it stop the lights of his neigh- bor ; ^ and even though he build for the very pur- pose of stopping the lights,® he may pull down his own house, though the adjoining house fall for the want of the support which it before had ; and he may do it without shoring up the adjoining house, that being the business of the owner ; ' he may pull ' Vaughan v. Menlove, 3 Bing. 468; Turberville v. Stampe, Ld. Ray- mond, 264 ; S. C. 1 Salk. 13 ; Bradbee v. Mayor of London, 5 Scott (N. K.). 119; Uodd V. Holme, 1 Ad. & Ellis, 493. ^ Per Bronson, C. J., in Eadcliff 's Executors v. Mayor, &c. of Brook- lyn, 4 Comst. 195. = Clark V. Foot, 8 Johns. 421. * Partridge u. Scott, 3 M. & Welsb. 220 ; Acton v. Blundell,12 Id. 352. ' Parker v. Foot, 19 Wend. 309. ' Mahan u. Brown, 13 Wend. 261. ' Peyton v. Mayor and Commonalty of London, 9 B. & C. 725 j CHAP, v.] DAMNUM ABSQUE INJURIA. 231 down his own walls, though the vaults of his neigh- bor be thereby destroyed;^ he may build a house and make cellars upon his soil, whereby a house in the adjoining soil falls down;^ and he may dig in his own land, though the house which his neighbor has previously erected at the extremity of his land be thereby undermined, and fall into the pit."^ It has, however, been said, that each proprietor has a natural right to the use of his land, in the situation in which it was placed by nature, surrounded and protected by the soil of the adjacent lots, and if, therefore, another dig so near, that thereby his land shall go into the pit, an action brought for that will he.* 2. Where Injuries result from the Acts of the Public or its Agents at Common Law. § 207. Such are the principles that determine the liability of individuals in the enjoyment of their property, and they reflect much light upon the liability of the public in reference to highways. It is evident that, in their strictest application, they allow a wide margin for injuries which are without a remedy. In the case of highways, this margin is susceptible of a still greater extension. The public acts, and is amenable, only through its officers, Grocers' Company v. Donne, 3 Bing. 34 ; Davis v. London and Black- wall Railway Co. 2 Scott, N. K. 74. ' Chadwick v. Tower, 6 Bing. 1. ^ Com. Dig. Action on the Case for Nuisance, C. * RoUe's Ab. Trespass, I. pi. 1 ; Wyatt v. Harrison, 3 B. & Ad. 871 ; Panton v. Holland, 17 Johns. 92; Lasala v. Holbrook, 4 Paige, 169 ; Thurston ... Hancock, 12 Mass. 220. * Lasala v. Holbrook, 4 Paige, 169. But see Partridge v. Scott, 3 M. & W. 220. 232 LAW OF HIGHWAYS. [gHAP. V. "whose powers are commonly defined by statutes, and who, so long as they do not exceed those pow- ers, cannot be held to answer for the consequences of their acts, unless the statutes themselves are void. In England, where the legislature is not restrained by a written constitution, the sanction of a statute is always a justification ; in the United States, it is so unless the statute be repugnant to the constitu- tion of the State or of the Union. But neither in the United States nor in England will a statute shelter from liability the officer, who, while acting under its authority, by his own negligence, unskil- fulness, or wilful malice, occasions a mischief which, by the exercise of proper care and diligence, might have been avoided. In illustration of these views there are numerous decisions both in England and in this country. § 208. In England, the leading case is that of The Governor and Company of the British Cast Plate Manufacturers v. Meredith and others.-' The plaintiffs, in this case, were the owners of a certain messuage and a yard with three warehouses built thereon, on the north side of High Ground Street, communicating with the street by a gateway, lead- ing through and under the messuage. The defend- ants, who acted as paviors under the authority of an act of Parliament, by raising the grade of the street lessened the height from the pavement to the centre of the arch of the gateway, so much as to make it necessary to take down and heighten the arch for the admission of wagons and other car- '■ The Governor and Company of the British Cast Plate Manufacturers, V. Meredith and others, 4 Term, 794. CHAP, v.] DAMNUM ABSQUE INJURIA. 233 riages to the warehouses, for the purpose of load- ing and unloading as they had previously done. It was contended, on the authority of Leader v. Mox- ton and others,^ that the defendants were liable to make good to the plaintiffs any actual damage sus- tained by their acts ; for, it was said, it could never be supposed to be the intention of the legislature, that the avenue to one man's house should be blocked up for the convenience of his neighbors, without some compensation. But Kenyon, C. J., remarked : " If this action could be maintained, every turnpike act, paving act, and navigation act, would give rise to an infinity of actions. If the legislature think it necessary, as they do in many cases, they enable the commissioners to award satis- faction to the individuals who happen to suffer. But if there be no such power, the parties are without remedy, provided the commissioners do not exceed their jurisdiction. But it does not seem to me that the commissioners acting under this act have been guilty of aijy excess of jurisdiction." And per Bul- ler, J. : " There are many cases in which, individuals sustain an injury, for which the law gives no action ; for instance, pulling down houses or raising bul- warks for the preservation and defence of the king- dom against the king's enemies. The civil law writers indeed say, that the individuals who suffer have a right to resort to the public for a satisfaction ; but no one ever thought that the common law gave » Leader v. Moxton and others, 3 Wilson, 461 ; 2 Bl. 924; S. C. Kenyon, C. J., in the above case, doubts the accuracy of this report ; but the decision is explicable on another principle ; the defendants having, in the opinion of the Court that rendered it, abused their authority and acted arbitrarily and oppressively. 234 lAW OF HIGHWAYS. [CHAP. V. an action against the individual who pulled down the house, &c. This is one of those cases to which the maxim applies, solus populi suprema est lex. If the thing complained of were lawful at the time, no action can be sustained against the party doing the act. In this case express power was given to the commissioners to raise the pavement j and, not having exceeded their power, they are not liable to an action for having done it." § 209. In Boulton v. Crowther,^ the same doctrine was asserted. The defendant, by changing the grade of a turnpike road, had rendered the en- trance gates to the plaintiff's premises unavailable for the use of persons with carts and carriages, and had allowed a part of the materials of the road to fell into the plaintiff's premises, and to damage his hedge and plantations. The grading had been done by the order of the trustees of the road, act- ing in pursuance of a statute, which authorized them to carry or improve the road through or over any private land, tendering or making satisfaction to the owner thereof, and the persons interested therein, for the damages sustained thereby. It was contended, that although the trustees had not taken any of the plaintiff's land, yet, as they had rendered it of less value to him, in consequence of raising the road in some parts, and lowering it in others, they ' Boulton V. Crowtlier, 1 B. & Cress. 703. For other English cases, see Sutton v. Clark, 6 Taunt. 34; Bore v. Gray, 2 Term, 358; The King V. Bristol Dock Co. 6 B. & Cress. 181 ; Hrirman v. Tappenden, 1 East, 565; The Wardens, &c. v. Donne, 3 Scott, 356; Roberts v. Read, 16 East, 215; Hall v. Smith, 2 BIng. 156 ; Warburton v. The London and Blackwell Railway Co. 1 Railway Cases, 558 ; Green v. Borough of Reading, 9 Watts, 382. CHAP, v.] DAMNUM ABSQUE INJURIA. 235 were liable, although the act, had not provided a compensation for a consequential damage, accruing to a party in a case where no part of his land was taken. The jury having found for the defendant, iipon instructions, that the action was not maintain- able, if the trustees used proper care and caution, and did nothing oppressive and arbitrary, a motion for a new trial to the Court in bank was refused. And per Holroyd, J. : " The act done being itself lawful, can only become unlawful in consequence of the mode in which it is carried into execution ; and here the jury have, by their verdict, negatived the fact of the act having been done carelessly, wan- tonly, or oppressively." § 210. It has been urged in favor of this im- munity of public officers, that they ought not to be subject to damages for their acts, because, unlike individuals, they derive from them no private emolu- ment. In giving an opinion, in the case just re- ferred to, Littledale, J., mentions this as one of the grounds of his decision. " I agree, " he says, " that a private individual must so use his own land as not to injure that of another, but the private individual acts for his own benefit, and he ought not to obtain a benefit at the expense of his neighbor. But where an act of Parliament vests a power in trus- tees or commissioners to be exercised by them, not for their own benefit, but for that of the public, and gives no compensation for a damage resulting from an act done by them in the execution of that power, the legislature must be taken to have in- .tended, that an individual should not receive any compensation for the loss resulting to him from an 23'6 LAW OF HIGHWAYS. [CHAP. V. act SO done for the public benefit." And in the earlier case of Sutton v. Clark/ the same reason had been advanced. The defendants, who were the trustees of a turnpike road, and were empowered to make watercourses, to prevent the road from being overflowed, on the recommendation of their sur- veyor, made a wide channel from the road, gradu- ally narrowing and conducting the water into the ordinary fence-ditches of the plaintiff's land, which were insufficient to discharge it, and his land was consequently overflowed. Gibbs, C. J., in deliver- ing the opinion of the Court, said : " This case is perfectly unlike that of an individual, who, for his own benefit, makes an improvement on his own land, according to his best skill and diligence, and not foreseeing it will produce an injury to his neighbor, if he thereby unM'ittingly injure his neigh- bor, he is answerable. The resemblance fails in the most important point of comparison, that his act is not done for a public purpose, but for private emolu- ment. Here the defendant is not a volunteer ; he executes a duty imposed on him by the legis- lature, which he is bound to execute. He exer- cises his best skill, diligence, and caution in the execution of it, and we are of the opinion, that he is not liable for an injury which he did not only not foresee, but could not foresee. He has done all that was incumbent on him, having used his best skill and diligence." But though this may be an argu- ment to support the policy of such an exemption, the all-sufficient reason for the exemption is, that the act is done under lawful authority, and being ' Sutton u. Clark, 6 Taunt. 29. CHAP. V.J DAMNUM ABSQUE INJURIA. 237 SO done, if done in a proper manner, no legal wrong has been committed to be redressed. And this has been expressly so decided in an American case, in an action against a municipal corporation, for caus- ing the plaintiiF's lot to be overflowed by stopping up a watercourse, where the Court declared, that if the city was authorized to stop up the watercourse, an action would not lie, although it was done by the city in an attempt to improve their own private property.^ 3. Where Injuries result from the Acts of the Public, or its Agents, in the United States. § 211. The law of England is likewise the law of the United States, except in so far as it has been modified by the constitutional provision that private property shall not be taken for public uses, without just compensation. The States which have not en- grafted this provision upon their constitutions have as unlimited a power in this particular as the Eng- lish Parliament.^ With reference to this provision, injuries, resulting from the use and improvement of highways, may be divided into two classes, viz. first, injuries which result from changes in the surface of highways, and confined within their established limits; second, injuries which result from changes extending beyond their established limits into land adjoining. Injuries of the first class plainly do not fall strictly within the constitutional restriction. That applies ' Mayor, &e. v. Randolph, 4 Watts & S. 514. But see Mayor, &c. u. Bailey, 2 Denio, 450. ' The State v. Dawson, 3 Hill, 100. But see Martin, Ex parte, 13 Ark. 198. 238 LAW OP HIGHWAYS. [CHAP. V. to the taldng of property, not to the use of property after it has been taken. And, provided the changes are carefully and properly made, with a view to the better adaptation of the soil to the purposes of a highway, it is not easy to see vphy, even indepen- dently of direct statutory sanction, upon the general principles which control the enjoyment of property, they should not be held to be damnum absque injur ria ; if, as has been assumed, the public may do with the soil of a highway, in furtherance of its legiti- mate use, what the individual may do with his own land.^ But injuries of the second class, being such as result from changes made outside the established limits of the highway, as where a watercourse is di- verted or flowed back upon adjoining lands, fall within the analogies of that class of injuries which, at common law, expose the individual to an action for damages, and, consequently, require a statute for their justification.^ They are not, moreover, by any means so plainly beyond the operation of the Con- stitution ; for it is somewhat difl&cult to perceive, why the diversion of a stream of water, or the flood- ing of adjoining land, for the sake of improving a highway, in so far as the stream or the land becomes thereby less valuable, is not, ^:)ro tanto, a taking of them for p\iblic use. The constitutional taking does not import an absolute privation of all right on the part of the original owner in the land taken ; for, if so, then the laying out of a highway is not a taking ; and, if any degree short of absolute privation be a taking, why is not every degree, to the extent to which it goes, equally so, and equally deserving of ' See ante, § 202. ' See ante, § 204. CHAP, v.] DAMNUM ABSQUE INJURIA. 239 compensation. It has, however, been decided, that neither of these classes of injuries are subject to compensation by force of the Constitution. To some of these decisions I now ask the attention of the reader. § 212. In Callender v. Marsh,^ the defendant, a surveyor of highways, in the lawful discharge of his functions as prescribed by statute, dug down the streets by the plaintiff's dwelling-house in Boston, and took away the earth, so as to lay bare the foun- dation walls of the house and endanger its falling, in consequence of which the plaintiff was obliged, at great expense, to build up new walls, and other- wise secure the house, and render it safe and conven- ient of access, as before. In an action for the dam- ages thereby sustained, it was contended, that the statute under which the defendant justified was void, as being repugnant to that clause of the Con- stitution which secures to individuals, whose proper- ty is taken for public use, a reasonable compensation therefor, and was, consequently, no defence for the defendant's acts. But the Court held, that this pro- vision of the Constitution was confined to the direct loss of property sustained by the individual, and to such expenses as are necessarily incident to the very act of taking it. That the highway having been legally established, although the right or title in the soil remained in him from whom the use was taken, yet the public acquired the right, not only to pass over the surface in the state it was in when first made a highway, but the right also to repair and amend it, and, for this purpose, to dig down and re- » Callender v. Marsh, 1 Pick. 417. 240 LAW OF HIGHWAYS. [CHAP. V. move the soil sufficiently to make the passage safe and convenient. That in no case could a person be liable to an action as for tort for an act which he is authorized by law to do ; and, therefore, the act, authorizing the defendant, as surveyor, to make the alterations in the highway complained of, being con- stitutional, he was not responsible for the conse- quences. § 213. In Eadcliff's Executors v. Mayor, &c. of Brooklyn,^ the defendants, the corporation of the city of BrooklyVi, regularly laid out and opened a street, and thereby acquired title to the land over which it passed. Afterward, they proceeded to grade the street, in order to bring it into public use, and, in so doing, removed a high bank which consti- tuted a natural support to the premises of an ad- joining owner, so that a portion of his land fell. There was no allegation of malice, or want of care or skill, and it was held, that the adjacent owner could not maintain an action on the case for the damages sustained by him. In delivering the opin- ion of the Court, Bronson, C. J., after an admirable review of the authorities, remarked : " The opening of a street in a city is not, necessarily, an injury to the adjoining land-owners. On the contrary, it is in almost every instance a benefit to them. The dam- age which they sometimes sustain, because the level of the street does not correspond with the level of their land, is usually more than compensated by the increased value which the property acquires from having a new front on a street. In some instances the land-owner will suffer a heavy loss; and this ' Kaduliff's Executors o. Mayor, &c. of Brooklyn, 4 Comst. 195. CHAP, v.] DAMNUM ABSQUE INJURIA. 241 case may, perhaps, be one of the number ; but it is damnum absque injuria, and the owner must bear it. He often gets the benefit for nothing, when the value of his land is increased by opening or improv- ing a street or highway ; and he must bear the bur- den in the less common case of a depreciation in value in consequence of the work. It may be added, that when men buy and build in cities and villages, they usually take into consideration all these things which are likely to affect the value of their property, and particularly what will probably be done by way of opening and grading streets and avenues. Wheth- er in cases of this kind the legislature ought, as a matter of equity, to provide for the payment of such damages as are merely consequential, we are not called upon to decide. It is enough for us to say, that a law which makes no such provision is not, for that reason, unconstitutional and void." § 214. The principles laid down in the two pre- ceding cases have been often recognized as sound,^ and extended to still other changes in the use of highways. Thus it has been frequently held, that the occupation of a street in a city for a railway track, authorized by statute, and laid under the di- rection of the city authorities, does not entitle the owner of adjacent land to the damages which result to that land, or to any business or trade conducted ^ O'boniior V. Pittsburg, 18 Penn. 187; Green v. The Borough of Beading, 9 Watts, 382 ; Graves u. Otis, 2 Hill, 466 ; Taylor v. City of St. Louis, 14 Mis. 20 ; Round v. Mumford, 2 R. I. 154 ; Henry v. Pitts- burg and Alleghany Bridge Co. 8 Watts & S. 86 ; Matter of Furman Street, 17 Wend. 667 ; Gossler v. Corporation of Georgetown, 6 Wheat. 593 ; Humes v. Mayor, &c. of Knoxville, 1 Humph. 403 ; Lebanon v. 01- cott, 1 N. H. 339; Snyder v. Rockport, 6 Ind. 237. 16 242 LAW OF HIGHWAYS. [CHAP. V. thereon, in consequence of such occupation.^ So, likewise, it has been decided in New York, that a pubhc highway taken by a plank road corporation, by virtue of a statute and its act of incorporation, does not cease to be a public highway ; and when the corporation has paid the commissioners of high- ways for the interest of the public in the road, it succeeds to all the rights of the town commissioners to make such repairs in the road as the public inter- est requires, whether such repairs consist in excava- tions or embankments, to bring the road to a proper grade, and thus to improve its condition as a public thoroughfare ; and any inconvenience or damage which any person may suffer in the proper and rea- sonable repairs of such public highway by the corpo- ration, in the legitimate exercise of the powers con- ferred by the statute, is damnwn absque injuria, and no action lies therefor.^ The rationale of these decis- ions is, that the owner of the land, when he parted with the easement, did so in view of the powers which the public thereby acquired, and of the changes to which it might be subjected, and must be presumed to have received compensation according- ly ; and that subsequent piirchasers must have pur- chased in view of all the advantages and disadvan- tages which might ensue from the same cause, and ' Hamilton v. The New York and Harlem Railroad Co. 9 Paige, 171 ; Drake v. The Hudson River Railroad Co. 7 Barb. 508 ; Plant v. Long Island Railroad Co. 10 Ibid. 26 ; Chapman v. Albany and Schenectady Railroad Co. 10 Ibid. 360 ; The Lexington and Ohio Railroad u. Apple- gate, 8 Dana, 289 ; Wetmore v. Story, 22 Barb. 414. Butsee^os^, § 245 el seq. ; as to occupation of street for a railway, ante, § 91 a. ' Benedict v. Goit, 3 Barb*^; Chagrin Falls and Cleveland Plank Road Co. V. Cane et al. 2 Ohio State, 419. CHAP, v.] DAMNUM ABSQUE INJUEIA. 243 cannot, therefore, when injured, be entitled to dam- ages, any more than they can be subject to them when benefited. § 215. For similar reasons, where erections are made under the authority of the law in a naviga- ble river, which is one species of common highways, a party who is consequentialli/ injured thereby is not entitled to damages. Thus, as we have seen, the proprietors of one toll-bridge cannot prevent the building of another over the same river on the ground that their tolls will be thereby diminished ; -^ and the erection of a railroad in a river below high- water mark is not the subject of damages to the riparian proprietor.^ In Lansing v. Smith,^ the plaintiff brought an action to recover damages for the construction of a basin in Hudson River, in the city of Albany, authorized by statute, and for the erection of temporary bridges and a sloop-lock, as auxiliary thereto, alleging that the beneficial enjoy- ment of his dock, and of his right of way to and from the same, had been essentially impaired by that operation. The remedy was refused, and the Court, in giving judgment, said : " The right of way of the plaintiff to and from his dock is not denied. All that is contended for on the part of the defend- ants is, that the mode in which that right is to be exercised is subject to be controlled and regulated by the legislature, as, in their judgment, the inter- est and convenience of the public may require. In ' Ante, § 94. * Ante, § 98. But see Sinnickson v. Johnson, 2 Harr. 129, and Wet- more V. Story, 22 Barb. 414. ' Lansing v. Smith, 8 Cowen, 148 ; 4 Wend. 3. 244 LAW OP HIGHWAYS, [CHAP. V. all such regulations, a due regard is undoubtedly to be paid to the interest of individuals. But every great public improvement must, almost of necessity, more or less affect individual convenience and prop- erty ; and where the injury sustained is remote and consequential, it is damnum absque injuria, and is to be borne as a part of the price to be paid for the ad- vantages of the social condition." § 216. But the power of the public, or of munici- pal corporations acting in the public behalf, over highways, is not restricted to their use for the mere purpose of transit. It extends to the promotion of the public convenience by the laying of water-pipes and gas-pipes in the streets of cities; and to the promotion of the public health by the construction of drains and sewers, or making any other changes therein. And any injury which results to individu- als from such a use of the public streets, unless there be a lack of proper care, is damnum absque injuria. Thus, it has been decided that a city has the right to fill up a watercourse, if that be the best means of remedying a nuisance which it occasions, and that the fact, that a riparian proprietor is there- by deprived of his right to pass and repass upon the watercourse from his land to the sea, or is damnified by the noisome smells generated by the stagnation of the water, does not entitle him to damage. Such a proceeding stands on the same footing as quaran- tine or fire regulations, from which, if the individual receives damage, the law presumes him to be in- demnified by sharing their advantages, and holds it to be damnum absque injuria} And it makes no ' Baker v. Boston, 12 Pick. 18i ; Clark v. Fry, 8 Oliio, 358., CHAP, v.] DAMNUM ABSQUE INJURIA. 245 diffei'ence though the regulation thus made be of such a character as to suspend the enjoyment of the property in the sole mode in which the party plain- tiff is entitled to use it.^ Nor can the city, by cove- nants with individuals, divest itself of the power of making such a regulation. The city sustains a two- fold capacity, — as a corporation with power to con- tract and be bound by its contracts, and as a special legislature charged with the care of the public health and morals ; and its acts done in the former capacity are subject to its legislative action, in the same manner as the acts of an individual.^ § 217. Also, as we have before said, an action does not lie where damages are sustained by the overflowing of the land of an individual in conse- quence of the repair or improvement of a highway. No public work, however important, it was re- marked in a case of this description, could be con- structed without being the source of endless litiga- tion if such remote and consequential damages would lay the foundation of an action at law.^ In Wilson V. Mayor, &c. of New York,* the defendants, in grading one of the streets of the city, raised it about eighteen inches without making any drain or sewer, thereby obstructing the former flow of water ' Stuyvesant v. The Mayor, &c. of New York, 7 Cowen, 588. ^ Presbyterian Church v. City of New York, 5 Cowen, 538. ^ City of St. Louis v. Gurno, 12 Mis. 415 ; White v. Yazoo, 27 Miss. 357 ; Clark V. Wilmington, 5 Harr. 243; Lawrence v. Fairhaven, 5 Gray, 110; Wheelerw. Worcester, 10 Allen, 605 ; Spraguew. Worcester, 13 Gray, 193. * Wilson V. Mayor, &c. of New York, 1 Denio, 555 ; and see State v. The Inland Lock Navigation Co. 2 Johns. 283 ; Boughton v. Carter, 18 Ibid. 405. In Delaware it has been held, that a canal company is not liable for damages occasioned by a mere accidental breach of their canal. Higgins v. Ches. and Del. Canal Co. 3 Harring. 441. 246 LAW OF HIGHWAYS. [CHAP. V. from the plaintiff's lots, so that the water raif from the street and avenue and from the adjacent lots upon her premises. Yet the Court held, that, the defendants being authorized to do what had been done, if the plaintiff was thereby incommoded, it was damnum absque injuria, and gave her no right of action against those who had only exercised a legal power vested in them for the public conven- ience and welfare. And it was said that, though the power was given to the city to make common sewers, drains, and vaults, in any part thereof, yet the exei-cise of that power being discretionary, the city was not liable for damages resulting from a neglect to exercise it. § 218. But, while such has been the usual course of decision, it has prevailed not without dissent,^ and in two States, at least, has been overruled. In Connecticut, in Hooker v. The New Haven and Northampton Company,''^ the injuries complained of ' Dissenting opinions in Charles Eiver Bridge v. Warren Bridge, 7 Pick. 344; 11 Peters, 420; and in City of St. Louis v. Gurno, 12 Mis. 415 ; ante, § 93. " Even if the damage be merely consequential or indi- rect" says Chancellor Kent, " as by the creation of a new and rival fran- chise in a C£ise required by public necessities, the same compensation is due, and the cases of Thurston v. Hancock, 12 Mass. 220, and Callender V. Marsh, 1 Pick. 418, are erroneous, so far as they contravene such a pal- pably clear and just doctrine. If A be the owner of a mill, and the legis- lature authorize a diversion of the watercourse which supplies it, whereby the mill is injured or ruined, is not that a consequential damage to be paid for? The solid principle is too deeply rooted in law and justice to be shaken." Kent, Com. 340, note c (6th edit.) ; Gardner v. The Village of Newburg, 2 Johns. 166 ; Stevens v. The Proprietors of the Middlesex Canal, 12 Mass. 466 ; Eowe v. The Granite Bridge Corporation, 21 Pick. 344 ; Fletcher v. The Auburn and Syracuse Railroad Co. 25 Wend. 462 ; Boughton V. Carter, 18 Johns. 405 ; Lawrence v. Fairhaven, 5 Gray, 116 ; Perry v. Worcester, 6 Gray, 544 ; Parker v. Lowell, 11 Gray, 353. ' Hooker v. The New Haven and Northampton Co. 14 Conn. 146. CHAP, v.] DAMNUM ABSQUE INJURIA. 247 were caused by the flowing of water from the waste wier of a canal over the adjoining land of others upon and through the land of the plaintiff: In the con- struction of the canal and waste wier, the defend- ants had strictly pursued their charter, and were found to have acted with proper prudence and care in thus discharging the water. It was contended that the defendants, having acted under the au- thority of law, and not having taken the plaintiff's property, were not hable for the consequential damages resulting from their acts. But the ma- jority of the Court were of the opinion, that it was not to be intended, from anything in the charter, that the legislature had given the defendants power to take away or essentially impair the rights of other persons, for which they had made no pro- vision; that the injury, though consequential, flowed from their act in throwing their surplus water upon the plaintiff's land, and thus depriving him of the use of it; and they were, therefore, bound to allow a just compensation for the damages. In Ohio, the liability for damages of this kind is still more unequivocally maintained. "That the rights of one," is the language of the Supreme Court of that State, " should be so used as not to impair the rights of another, is a principle of morals, which, from very remote ages, has been recognized as a maxim of the law. If an individual exercising his lawful powers commit an injury, the action on the case is the familiar remedy ; if a corporation, acting But see dissenting opinion in that case, and Hollister v. The Union Co. 9 Conn. 436 ; Nicholson v. The New York and New Haven Railroad Co. 22 Conn. 174. 248 LAW OF HIGHWAYS. [CHAP. V. within the scope of its authority, should work wrong to another, the same principle of ethics demands of them to repair it, and no reason occurs to the Court why the same remedy should not be applied to compel justice from them." ^ And, in a subsequent case against a municipal corporation for an injury occasioned by the grading of a street, where the defendants were acting within the scope of their corporate authority, the Court, in referring to the language just cited, indorsed it in its fullest extent, and expressed the hope " that, by the light of such example and assurance, the whole subject-matter of corporations will, in the end, be reduced to the con- trol of incontestable principle." ^ 4. Liability for the Want of due Care and Diligence in Acts performed under Lawful Authority. § 219. But, as has been remarked, though a party act under lawful authority, he is not protected from the damages which result from his own malice, un- skilfulness, or negligence. In a very early case, where commissioners, who were empowered by act of Parliament to grade and repair a street in such manner as they should think fit, caused it to be raised six feet in front of the plaintiff's houses, it was said by the Court : " Every man of common sense must understand, that this act of Parliament ought to be carried into execution without doing such enormous injury to individuals, as hath been ' Rhodes v. City of Cleveland, 10 Ohio, 159. ^ McCoombs V. The Town Council of Akron, 15 Ohio, 474. And see Goodloe V. City of Cincinnati, 4 Ohio, 500 ; Smith v. City of Cincin- nati, Ibid. 514 ; Savill v. Giddings, 7 Ibid. 212 ; ^Hickox v. Cleyeland, 8 Ibid. 543. CHAP, v.] DAMNUM ABSQUE INJURIA. 249 manifestly done to the plaintiflf in this case. When- ever a trust is put in commissioners by act of Par- liament, if they misdemean themselves in that trust, they are answerable criminally in the King's Bench; if they aggrieve and damnify the subject, as they have done in the present case, they are answerable in this Court civiliter in damages to the party in- jured."^ It is the implied condition of a grant of authority, that the authority shall suffer no abuse in the execution.^ § 220. Neither is a party who deviates in the slightest degree from the legal authority under which he claims to act entitled, on account of that authority, to any exemption from liability, even though such a deviation be less injurious than an exact observance of the authority would have been.* Thus, where a railroad corporation was authorized by its charter to raise or lower any highway, which in its course the railroad might pass, so that, if necessary, the road might pass under or over or across the same, and it was provided that the town council of the town, where the highway was located, should have power to require of the corporation to do it in such a manner as should be satisfactory to them, by requesting any alteration or amendment which should be necessary for that purpose, and should have power to enforce such request by com- plaint to the Court of Common Pleas, in case of non- compliance on the part of the corporation ; it was 1 Leader v. Moxon, 3 Wilson, 461 ; 2 W. Bl. 924, S. C. ; Milwaukee v. Davis, 6 Wis. 377. " Mearls v. Commissioners of Wilmington, 9 Ired. 73 ; Jones v. Bird, 5 B. & Aid. 837 ; ante, §§ 209, 214, and the cases there cited. ' Carron v. Martin, 2 Dutch. 594. 250 LAW OP HIGHWAYS. [CHAP. V. held, that the corporation was not justified in widen- ing a highway, or diverting its course, or supplying its place with a new way, so that the railroad would be passed at a point different from its intersection with the original way, even though the change was approved or acquiesced in by the town council, and was for the convenience of the public, and that in such case they were liable in damages to private in- dividuals who had suffered a special injury by their act.^ § 221. When damages of this kind accrue in the prosecution of a work by the order of a muni- cipal corporation, the corporation is liable for the acts of its servants and agents, in the same manner as an individual.^ Municipal corporations are charged ' Hughes V. The Providence and Worcester Railroad Co. 2 R. I. 493 ; Spencer v. London and Birmingham Railway Co. 1 Railway Cases, 150; Regina u. Eastern Counties Railway, 2 Ad. & El. (N. S.) 569; Lacour w. Mayor, &c. of New York, 3 Duer, 406. And see post, Chap. VI. ^ Delmonico v. The Mayor, &c. of New York, 1 Sandf. 22 ; The May- or of Memphis u. Lasser, 9 Humph. 759 ; Ross v. City of Madison, 1 Smith, 98 ; Radcliff's Executors v. Mayor of Brooklyn, 4 Comst. 195. In England, it has been held, that the trustees appointed under a public road act are not responsible for an injury occasioned by the negligence of the men employed in making or repairing the road. Waterhouse v. Keen, 6 Clark & Fin. 894 ; 1 Rob. 911. And in the case of Harris and Ux. u. Baker, 4 M. & S. 27, the trustees of a public road were empowered and required, by an act of Parliament, to place lamps along the road, if they should think necessary, and to make contracts for the cleansing of the road, and to take a night-toll for the purpose of enabling them to light and watch the same. The highway had been cleansed, and the scrap- ings had been left ia round heaps, on both sides of the road. One even- ing, after it was dark, there being no lamps by the roadside, the plaintiffs ■wife, having occasion to cross the way, in her passage fell over one of these heaps, and broke her arm. And it was held by the Court of King's Bench, that the clerk to the trustees was not liable to an action under the above circumstances. Per Lord EUenborough, C. J. : " If, by omitting to put up lamps -where it is necessary, the trustees are guilty of a breach of CHAP, v.] DAMNUM ABSQUE INJURIA. 251 with a twofold duty in regard to highways ; first, they are to decide when, where, and what repairs public duty, they may be indicted. But to hold that every trustee of a road is liable in damages for such an accident as this would, I conceive, be going further than any case warrants." But although the trustees themselves may not be liable to make compensation for damage occasioned by acts ordered by them to be done, which are within the scope of their authority, if they proceed with sufficient caution, yet it should seem from the case of Hall v. Smith and others, 2 Bing. 156, that the agent who is appointed to execute such acts is answerable for any negligence in their performance. This was an action brought against the clerks to certain commissioners, for lighting, paving, and watching the town of Birming- ham, and also against the surveyor and contractor employed by them, and a laborer who was employed by the contractor. It appeared that the de- fendants dug a deep ditch in a certain street, placed a quantity of rubbish near the same, and left it at night, without any guard, fence, light, or sig- nal ; and that the plaintiff, not knowing thereof, fell into the ditch with great force, whilst riding across the street, whereby he broke his thigh, and his horse was much injured. On the trial, the jury found a verdict for the laborer, and against all the other defendants. Upon motion, the Court of Common Pleas set aside the verdict, as against the clerks to the commissioners, but confirmed it as against the surveyor and contractor. In the course of a most able judgment. Best, C. J., observed, that: " As to the surveyor and contractor, it was admitted, that the verdict found against them must stand. The question to be decided was, whether the clerks to the commissioners were to have a verdict entered for them. The action is not maintainable against these defendants, unless it could have been supported against the commissioners. Now, if commissioners, under an act of Parliament order something to be done which is not within the scope of their authority, or are themselves guilty of negli- gence in doing that which they are empowered to do, they render them- selves liable to an action ; but they are not answerable for the misconduct of such as they are obliged to employ. If the doctrine of respondeat su- perior were applied to such commissioners, who would be hardy enough to undertake any of those various offices, by which much valuable, yet unpaid, service is rendered to the country ? The maxim of respondeat superior is bottomed on this principle, that he who expects to derive ad- vantage from an act which is done by another for him must answer for any injury which a third person may sustain from it. The commissioners here had authority to make the trench which occasioned the damage to the plaintiff; and they are not answerable for the negligent execution of an order properly given." So in the case of Jones v. Bird and others, 5 B. & A. 837, the plaintiff brought his action against the defendants, 252 LAW OF HIGHWAYS. [CHAP. V. and improvements are to be made in them ; second- ly, they are to procure them to be made. The former is a judicial or legislative duty, in the dis- charge of which they are exempt from civil respon- sibility, so long as they do not exceed their jurisdic- tion. The latter is a purely ministerial duty, in the performance of which they derive no immunity from their character as a municipality, for any want of due care and diligence on the part of their agents.-^ On the other hand, even though the act from which the damage ensues was planned and advised by who were employed under the commissioners of sewers. It appeared that the sewer, which it weis necessary to repair, passed close to five houses adjoining to that belonging to the plaintiff, and that a stack of chimneys belonging to one of those houses was built upon the arch of the sewer. In the execution of the work, it became necessary to rebuild this arch, and, in order to support the chimneys in the mean time, a transum and two upright posts were placed under them, in order to support them, but without success ; the chimneys fell, and, in consequence of their fall, the adjoining houses, including the plaintiff's house, fell also. There was no specific notice given to the owner of the house to which the chimneys belonged of their dangerous state, or that it would be necessary for him to take them down. But there was a general notice to the inhabitants to secure their houses while the sewer was repairing. The jury, at the trial, were of opinion, that the defendants had conducted themselves negligently in their execution of the work intrusted to them, and accord- ingly found a verdict for the plaintiff; which verdict the Court of King's Bench refused to disturb. Per Bayley, J. : " The defendants were bound to conduct themselves in a skilful manner." And per Best, J. . " Here, too, the action was brought against the parties who negligently executed, and not against the party giving the order, as in Sutton v. Clarke." From this observation, it may be inferred, that, in the case alluded to, the sur- veyor would have been considered liable, although the trustees were held not to be responsible. ' Rochester White Lead Co. v. The City of Rochester, 3 Comst. 463; Lloyd V. The Mayor, &c. of New York, 1 Selden, 369 ; Wilson v. The Mayor, &c. of New York, 1 Deuio, 555 ; Martin v. Mayor of Brooklyn, 1 Hill, 545 ; Child v. Boston, 4 Allen, 41 ; Mellen v. Western Railroad Co. 4 Gray, 301 ; Wheeler v. Worcester, 10 Allen, 604; Eastman v. Meredith, 36 N. H. 284. CHAP, v.] DAMNUM ABSQUE INJURIA. 253 their surveyor, they are primarily liable.^ They are also liable for a neglect to perform, as well as for negligently performing, a duty which is incumbent upon them.^ And where the injury was occasioned by an erection unskilfully constructed upon the land of a city, and for its benefit, the city was held to be liable for the damages, although the persons who constructed the same were not its agents nor under control.^ ' Rochester White Lead Co. v. The City of Rochester, supra. ' Mayor of New York v. Purge, 3 Hill, 612 ; Sabin v. Vermont Cen- tral Railroad, 25 Vt. 363. ' Bailey v. Mayor of New York, 3 Hill, 531 ; 2 Denio, 433. This de- cision was made upon the authority of Bush v. Steinman, 1 B. & P. 404, in which it was held, that the defendant, as proprietor of the land, was liable for an injury occasioned by the depositing of lime in the high- way, in front of his house, and for his benefit, although by one who was not in his service. Storrs v. City of Utioa, 1 7 N. Y. 105 ; Hutson v. Mayor, &c. of New York, 5 Seld. 163 ; Hickock v. Plattsburgh, 16 N. Y. 161, n. ; West V. Brookport, 16 N. Y. 163, n. ; People v. Albany, 11 Wend. 639. But see Walcott v. Inhabitants ofSwampscott, 1 Allen, 101. But where a municipal corporation elects or appoints an officer in obedience to an act of the Legislature, to perform a public service, in which in its cor- porate capacity it has no special benefit or advantage, but which it is bound by law to see performed for the general welfare of the community, such officer cannot be regarded as the servant or agent of the corpora- tion for whose negligence or want of skill the corporation is liable. Haf- ford V. City of New Bedford, 16 Gray, . And the town is not liable for the negligence of a laborer employed by a surveyor of highways to assist him in performing the duties of his ofiice. Walcott v. Swampscott, supra. The right of selection lies at the foundation of the responsibility of master and servant, and the municipal corporation may be, under some circumstances, exempt from liability where the injury occurs in the progress of the work by the carelessness or negligence on the part of the servants of contractors over whom the Court has not direct control. Peck V. Mayor, &c. of New York, 4 Seld. 222 ; Kelly v. New York, 1 Kernan, 432. There is no liability unless the relation of master and servant, partner, or some other involving the principal of agency, exists. Wendell v. Mayor, &c. of Troy, 39 Barb. 335. 254 LAW OF HIGHWA'iS. [chap. YL. CHAPTEK VI. NUISANCES AND THEIR BEMEDIES. I. Nuisances. 1. Illegal Obstructions. 2. Legalized Obstructions. 3. Want op Reparation at Common Law. 4. Want of Reparation in the United States. II. Remedies. 1. Abatement. 2. Indictment. 3. Injunction. 4. Case for Special Damage. I. Nuisances. § 222. A PUBLIC nuisance may be defined to be an oflfence against the public, either by doing a thing to the annoyance of the pubHc, or by neglecting to do a thing which the common good requires. Of this description are nuisances in highways, which may be committed, either positively, by actual obstructions, or negatively, by want of reparations. The latter, or negative kind, can of course be committed only by those upon whom an obligation lies to keep high- ways in repair ; the former, or positive kind, can be committed by any person indiscriminately ; but either kind, to be embraced by the definition, must be such as annoys the whole community or travel- ling public in general, and not merely some particu- lar individual. Being offences against the public, they are indictable only, and not actionable, except where an individual has suffered a special damage CHAP. VI.] ILLEGAL OBSTRUCTIONS. 255 beyond what is common to himself with the rest of the public, in which case he may seek redress by a private action. 1. Illegal Obstructions. ^^ 223. At common law, any act or obstruction, which unnecessarily incommodes or impedes the law- ful use of a highway by the public, is a nuisancep> Thus, it is a nuisance at common law to dig a ditch or make a hedge across a highway, to suffer adjoin- ing ditches to be foul, by reason whereof it is im- paired, or to suffer the boughs of trees, growing near, to overhang it in such a manner as to incom- mode the passage,^ to erect a gate^ or fence ^ across it or a building* on it, to deposit lime^ or graveP in "■ 1 Hawk. P. C. 76, §§ 48, 50. ' James v. Hayward, Cro. Car. 184; Greasly v. Codling, 2 Bing. 263. In James v. Hayward, Croke, J., dissenting from a majority of the Court, was of opinion, that "the law accounts not such petty troubles nuisances for it appears that there are many gates in divers highways which have been always allowed, and if it were a nuisance in itself there should not be any gate, for there cannot be any prescription for a nuisance." But to this it has been answered, that the erecting of a gate is a nuisance because it interrupts the free and open passage which the public before enjoyed and are entitled to ; but where such a gate has continued time out of mind, it shall be intended, that it was set up at first by consent on a composition with the owner of the land on the laying out of the road, in which case the people had never any right to a freer passage than what they still enjoy. See 1 Hawk. 75, § 9, and the authorities there cited. ■ Where the fee of a public street is in private persons, they may lawfully make a raceway across it to convey water to a factory ; but in so doing they must not disturb the servitude or easement of way. 3 Barb. 42. ' Gregorys. Commonwealth, 2 Dana, 417; Kelly v. Commonwealth, 11 S. & R. 345. * Stetson V. Faxon, 19 Pick. 147 ; Barker v. Commonwealth, 19 Penn. 412. s Bush V. Steinman, 1 B. & P. 404. " Burgess v. Gray, 1 Mao., Gr. & Scott, 578. 256 LAW OF HIGHWAYS. [cHAP. VI. it, though but for temporary convenience, to pile logs or lumber^ therein, or in any manner unreason- ably to obstruct the public passage. Even the sub- stitution of a gate for a stone stile of less height across a public footway is a nuisance, though other gates have been previously placed across other parts of the, way; ^ as also would be the continuance of a gate, authorized by statute, after the expiration of such statute.^ It has also been held a nuisance at common law to carry an unreasonable weight on a highway, with an unusual number of horses. And an information for that offence, stating that the car- rier went " with an unusual number of horses," with- out setting forth what number, has been held good, because the nuisance was caused by the excessive weight which was carried.* § 224. To destroy, stop up, or divert the course of an ancient highway, is a nuisance at common law ; nor is it any the less a nuisance, though a new and better way be substituted in its place. Such a change can be made only under the king's license obtained upon a writ of ad quod darnnum, or in the mode pro- vided by statute. Where, therefore, the change has been made without due authority, the public may, at any time, return to the old path, and remove any ob- struction there, or indict the person who caused or continued such obstruction, and it is immaterial how ' Mould V. Williams, 5 Ad. & El. 469 ; 1 Hawk. P. C. 76, §§ 48, 50. ' Bateman u. Burge, 6 C. & P. 391. See Clark v. Lake, 1 Ham. 229. ' Adams v. Beach, 6 Hill, 271. See also Runyon v. Bordine, 2 Green, 36 ; Wales v. Stetson, 2 Mass. 143 ; Justice v. Commonwealth, 2 Virg. Cas. 171. * Com Dig. Chimin. A. 3 ; Eex v. Egerly, 3 Salk. 183. CHAP. VI.] ILLEGAL OBSTRUCTIONS. 257 long it has been shut up or disused. And, on the other hand, the proprietor may, at any time, close up the substituted way, or, after notice (for without such notice a plea of license would be permitted), treat persons who travel it as trespassers ; unless the public use has been continued under such circum- stances as will support the inference of a dedication by the owner.^ So it would seem, that to obliterate a highway by ploughing,^ or even to use a common pack and horse-way with a cart, in such a way as to furrow and cut it up, is a nuisance.^ And to open trenches in the streets of a city, for the purpose of laying gas-pipes, is an indictable nuisance, though the pipes be laid and the road restored with rea- sonable despatch.* § 225. But to constitute a nuisance, it is not neces- sary that there should be an actual physical obstruc- tion to the public use of the highway ; it is enough •if there be something that occasions imminent peril to those that travel it. Thus, if a house on the highway be ruinous, and likely to fall down, it is a nuisance, and the occupier, although he be but a tenant at will, is bound to repair it ; for, as has been remarked, " as the danger is the matter that con- cerns the public, the public are to look to the occu- pier, and not to the estate, which is not material in ' Rex V. Ward, Cro. Car. 266; Ilex v. Inhabitants of Flecknow, 1 Bur. 465; Thomas v. Sorrell, Vaugh. 346; Allen v. Lyon, 2 Root, 213; State V. Duncan, 1 MuCord, 404 ; Hone v. Widlake, Yelv. 141 ; Weathered V. Bray, 7 Ind. 706 ; but see post. Chap. VII. Obstruction of a way ac- quired by a town by grant is not indictable as a nuisance. Such a way is a private way. Commonwealth v. Low, 3 Pick. 408. * Griesley's case, 1 Ventr. 4. ' Regina v. Leech, 6 Mod. 145. * Regina v. Sheffield Gas. Co. 22 Eng. Law & Eq. 518. 17 258 LAW OF HIGHWAYS. [CHAP. TI. such case as to the pubhe." ^ And so to assemble a large number of persons near a highway for the pur- pose of shooting, with the noise and disturbance con- sequent upon such assemblage, is a nuisance.^ § 226. The public are entitled, not only to a free passage along the highway, but to a free passage along any portion of it, not in the actual use of some other traveller. Therefore it is no excuse for one who layeth logs of timber along a highway, that he laid them only here and there, so that the people might have a passage by windings and turnings through the logs.^ Yet it is said to be no nuisance for the inhabitants of a town to unlade billets, &c. in the street before their houses, unless they suffer them to continue there an unreasonable time after they are unloaded.* § 227. But the right to lade and unlade carriages in the highway is entirely subordinate to the right of passage, and must not be exercised in such a manner as unreasonably to abridge or incommode this latter right. Thus in Kex v. Eussell,^ it appeared that one or two, and sometimes three, large wagons of the defendant were, for several hours both day and night, standing in a street thirty-seven feet wide, before ' Regina v. Watts, 6 Salk. 357. See also United States v. Hart, Peters, 390, in which it was held, that driving a carriage through a crowded and populous street in such a manner as to endanger the safety of the inhabitants is an indictable offence at common law, and amounts to a breach of the peace. 2 King V. Moore, 3 B. & Aid. 184. » 1 Hawk. P. C. ch. 76, § 49 ; Chamberlain v. Enfield, 43 N. H. 356. A partial obstruction of the highway by a fence, though not interfering with the travel, is indictable as a nuisance. Harromer v. Ritson, 37 Barb. 301. * 1 Hawk. P. C. ch. 76, § 49. ' Rex v. Russell, 6 East, 427. CHAP. VI. j ILLEGAL OBSTRUCTIONS. 259 liis warehouse, and usually occupied one half of the street, so that no carriages could pass on that side next the warehouse, though two carriages might pass on the opposite side, the gutter being in the middle of the street ; that the wagons were loaded and un- loaded in the street, and the packages thrown down on the same side of the street, so as frequently, with the wagons, to obstruct even foot passengers, and oblige them to cross the gutter to the other side. It was argued, that partial obstructions of this kind, which arose out of the necessary means of carrying on trade and business, did not constitute a nuisance, the public passage not being impeded, though nar- rowed thereby. But the language of the Court was : <^ That the primary object of the street was for the free passage of the public, and anything which im- peded that free passage, without necessity, was a nuisance. That if the nature of the defendant's business were teuch as to require the loading and imloading of so many more of his wagons than could be conveniently contained within his own private premises, he must either enlarge his premises, or remove his business to some more convenient spot." > § 228. The same principle was recognized in Rex V. Cross,-' where the defendant was indicted and found guilty for keeping coaches at a stand in the street, waiting for passengers ; and, again, in Eex v. Jones,^ where the defendant, a timber merchant, occupied a small yard close to the street, and, from the small- ness of his premises, was obliged to deposit the long pieces of timber in the street, and to have them sawed up there before they could be carried into the > Kex V. Cross, 3 Campb. 226. ^ Kex v. Jones, Ibid. ^30. 260 LAW OF HIGHWAYS. [cHAP. VI. yard. In the latter case, it having been contended that this was necessary for his trade, and that it oc- casioned no more inconvenience than draymen let- ting down hogsheads of beer into the cellar of a publican, Lord Ellenborough said : " If an unreason- able time is occupied in the operation of delivering beer from a brewer's dray into the cellar of a publi- can, this is certainly a nuisance. A cart or wagon may be unloaded at a gateway, but this must be done with promptness. So as to the repairing of a house ; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but, if this inconvenience be prolonged for an unreason- able time, the public have a right to complain, and the party may be indicted for a nuisance. The de- fendant is not to eke out the inconvenience of his own premises by taking the public highway into his timber yard ; and, if the street be narrow, he must remove to a more commodious situation for carrying on his business." But it has been held, that the necessity, to justify what would otherwise be a nui- sance, need not be absolute, but that it is enough if it be reasonable ; and that, in accordance with this principle, a merchant may place his goods in the street for the purpose of removing them to his store in a reasonable time, though he has no right to keep them in the street for the purpose of selling them there, because there is no necessity for it.^ ' Commonwealth v. Passmore, 1 S. & R. 219 ; St. John v. Mayor, &c. of New York, 6 DJer, 315 ; Wood v. Mears, 12 Ind. 515 ; Gahagar v. Boston and Lowell Railroad, 1 Allen, 187. In Rex v. Ward, 4 Ad. & El. 405, Lord Denman, in speaking of a board erected for repairing a house, said, " that the board is placed for the safety of those possessing the right of way ; it protects them from inevitable danger if it leaves them a free CHAP. VI.] ILLEGAL OBSTRUCTIONS. 261 § 229. The navigation of public rivers is regulated by the same principle.^ The right of each citizen to use such river as a highway must, everywhere, passage, and leads them another way, if the whole street is necessarily- obstructed. Every way to which houses adjoin must be considered as set out, subject to these occasional interruptions, which resemble the tem- porary acts of loading coals in keels, alluded to in Rex v. Russell, 6 B & C. 566. And see Bradbee a. London, 5 Scott, 79. In repairing or re- building a house, care must be taken that the encroachment on the high- way be not unreasonable ; for if the owner of a house employ his own servants, or even contract with a builder to rebuild or repair his house, and the latter erect a shed so far out into the street as to encroach unrea- sonably on the highway, the owner would be guilty of a nuisance. Bush V. Steinmaa, 1 B. & P. 407. But building a house higher than it was before, whereby the street becomes darker, is not a public nuisance on account of the darkening only. Rex v. Webb, 1 Ld. Raym. 737. An indictment will not lie for obstructing a highway, by holding a fair or market, if there has been an uninterrupted custom for twenty years. Eex V. Smith, 4 Esp. 109; Rex v. Canfield, 6 Esp. 136. And so a cus- tom to erect a booth or stall during the period of a fair or market, on any part of a public street or highway (sufficient space being left for the pub- lic to pass), is a good custom. Elwood v. Bullock, 13 Law J. (N. S.) 330. But a sale by a constable under an execution, in a public street, is a nui- sance, notwithstanding a custom so to do for fifteen years. Common- wealth V. Milliman, 13 S. & R. 403. And see Wilkes v. Ilungerford Market, 2 Bing. 281 ; Palmer v. Silverthorne, 32 Penn. State, 65. The right of transit in the public is subject to such incidental, temporary, and partial obstructions as manifest necessity requires, and among these are such as are necessarily occasioned by building and repairing houses, constructing sewers, cellar drains, &c. Clark v. Fry, 8 Ohio St. 358. ' As incident to the right of navigation, the temporary obstruction of portions of the river, while preparing their materials for transportation, or in securing them at the termination of their transit, constitutes no viola- tion of law ; and for such purposes parties may use sheer or guide booms to direct the logs or lumber into proper places in floatable streams, but this does not authorize them to use the stream as a place of permanent deposit, so as to obstruct the navigation, nor can they be allowed to cast slabs, edgings, or other waste material into a stream to be floated away or otherwise as may happen, and any such use of the stream will render them liable for injuries sustained thereby. Dwinel v. Veazie, 50 Me. 479 ; Gerrish v. Brown, 51 Me. 256. 262 LAW OF HIGHWAYS. [CHAP. VI. within reasonable limits, accommodate itself to the same right in the public at large. The refusal of such reasonable accommodation is a nuisance. Thus, where a man obstinately refused to move his ship from opposite a wharf, although it would have been just the same if he had moved a little one way or the other, it was held, that he had abused his right, and that the party injured was entitled to recover. So, although the right to a fishery in a river is sub- ordinate to the right of navigation, yet if one, using the river for the latter purpose, act wantonly and maliciously for the purpose of injuring the fishery, he is liable for the damage resulting from his acts.^ Vessels have a right to use a warp in getting in or out of a harbor, but this must be done in a way not to interfere with the free navigation of other vessels. They may extend their warp across the entire chan- nel, but, on the approach of another vessel, it is their duty to take notice of such approach, and lower their warp, so as to give ample space in the ordinary trav- elled part of the channel for her to pass, and to give timely notice of the space so left. If they neglect to lower their warp, and to give such notice, the ap- proaching vessel is not liable for interference with the warp, although in fact ample space be left her to pass in some portion of the ordinary travelled part of the channel. But if, on the receipt of such notice, she chooses to take her course in a part of the channel other than that indicated by the notice, and so becomes entangled in the warp, and cuts it, she will be liable for the damage, unless it can be shown that this is done in the belief, on the part of ' Anonymous, Durham Assizes, in note to 1 Campb. 516. CHAP. TI.] ILLEGAL OBSTRUCTIONS. 263 those in command, that there is depth of water over the warp sufficient to pass in the course taken, and that an honest, though mistaken, judgment is exer- cised in the matter, without any design or intention of interfering with the warp ; it being the prima facie presumption that the disregard of notice is reckless and wilful.^ § 230. A nuisance, in the legal sense, is a c;ilpable act or omission that occasions an obstruction, not the obstruction itself Consequently, a person, who ac- cidentally breaks or overturns a loaded wagon in the highway, is not guilty of nuisance, though there be an obstruction ; ^ while, on the other hand, a person who does some act, which is the natural occasion of an obstruction on the part of others, is guilty of nuisance, though the act in itself be no obstruction. In Eex V. Carlisle,^ the defendant, who was a book- ' Potter and others v. Pettis, 2 K. I. 483, per Greene, C. J. '^ If a vessel be sunk in a river, by misfortune or inevitable accident, and without fault on the part of the owner, it is not indictable as a pub- lic nuisance, should the wreck not be removed. Rex v. Watts, 2 Esp. 675. But in such case, the owner is bound to place a buoy over the wreck ; and to station a watchman near the obstruction, to point out the danger, is not sufficient. " It is a peremptory law of navigation," said Lord EUenborough, " that when any substance is sunk in a navigable river so as to create danger, a buoy shall be placed over it for the safety of the public ; and this was the proper and specific notice, which all un- derstand and are bound to obey. A verbal communication," he added, " might be easily misunderstood, and was likely to lead to confusion and mischief" Hammond u. Pearson, 1 Campb. 515. A person who without special authority makes or continues a covered excavation in the street is responsible for all injuries, in the absence of negligence of the party in- jured, resulting from the improper condition of the covering, irrespective of any degree of skill on his part ; and this liability is not affected by the fact that, having provided a sufficient covering, it was destroyed by the act of a wrong-doer. He is bound at his peril to keep the highway as safe as it was before the excavation. Congreve v. Smith, 18 N. Y. 79 ; Same V. Morgan, Ih. 84. ' Kex V. Carlisle, 6 Carr. & Payne, 636. 264 LAW OF HIGHWAYS. [CHAP. VI. seller in Fleet Street, having been distrained on for the non-payment of a church-rate, put into one of his windows the effigy of a bishop of the established church, under vrhich was written " Spiritual Broker," and in the other window, a man in ordinary dress, under which was written " Temporal Broker," and afterwards added a figure of the devil, through the arm of which was tucked that of the bishop. The exhibition attracted a crowd to look at it, so that passengers, particularly old persons, and females, were obliged to go oflf the footpath into the car- riage-way, as there was not room for them to walk on the foot pavement. Park, J., admitting that the defendant had a right to do as he chose on his own premises, provided he did nothing to injure or annoy his neighbors or the public, instructed the jury that, if the exhibition caused the footway to be obstructed, so that the public could not pass as they ought to do, this was an indictable nuisance, and that it was not essential that the figures should be libellous, or that the crowd attracted should consist of idle, disorderly, and dissolute persons. And, in reply to certain ar- guments addressed to the jury, he further said : " The defendant has compared this exhibition to the procession of the Judges going to St. Paul's ; how- ever, in that case, the crowd who look at the proces- sion move on with it, and do not stand obstructing the street, as they have done in this case. The de- fendant has also observed upon the Lord Mayor's Day ; however, that is but one day in the year ; and if, instead of that, the Lord Mayor's Day lasted from October to December, I should say it ought to be put a stop to." CHAP. VI.] ILLEGAL OBSTRUCTIONS. 265 § 231. In the case above referred to, Park, J., re- marked : " One question is, whether this act of the defendant was at all necessary for the hond fide car- rying on of his trade ; for if it was, and he did not take np more time in the doing of it than was neces- sary, the law would do what it could to protect him." Undoubtedly, as man in the pursuit of his lawful business would be excused for acts, which, if wan- tonly done, would render him punishable for a nui- sance ; ^ but, even in such a case, the claims of pri- vate business must yield to the superior right of the public, whenever they would lead to an unreason- able interruption. Thus, in a recent case in New York, in which the nuisance complained of was oc- casioned by the congregation of carts in the public street, for the reception of slops from a distillery ; it was insisted for the defendants, first, that, their business being lawful, they had a right to use, in car- rying it on, so much of the public highway as was necessary for that purpose, provided they used rea- sonable diligence and despatch ; and, second, that they, not being the owners of the carts and teams there assembled, and having no control over them, were not responsible. But the Court held, as to the first point, that private interest must be made sub- servient to the general interest of the community, ' It is not impossible, tliat this consideration may have had weight with the Court, in quashing the indictment in Eex v. Sannon, 1 Bur. 516, in which the defendant was charged with keeping a person upon an ancient common footway in London, to deliver out certain printed bills of her occupation, to persons passing that way, which she did for the space of four hours and more together, on every of several days specified, whereby said footway was greatly impeded and obstructed. The Court, without difficulty, we are told, quashed the indictment, though attempted by two or three counsel to be supported. 266 LAW OF HIGHWAYS. [CHAP. VI. and that, if this business could not be carried on in any other manner at that place, so advantageously either to individuals or the public, the defendants must either enlarge their premises, or remove their business to some more convenient spot ; and, as to the second, that, having furnished the occasion of the assembling, they were liable for the natural consequences.-^ § 232. It has been held, where the highway has been laid out and established of a certain width by statute, to be no justification, on an indictment for this offence, that the obstruction is placed in a part of the highway which has not been prepared, and cannot, be used, for travel, by reason of ledges of rocks and stones, and that said obstruction does not obstruct or hinder the travel thereon. The Court distinguished between the right of the public, or town, as against the individual, for an obstruction, and the right of the individual, by private action, under the statutes, as against the town for a defect or want of repair. The latter, it is said, " only re- quires a road of proper width, and kept in good repair. But the town, on the other hand, to enable itself to discharge its obligation to the public, re- quires the full and entire width of the whole located highway. The space between the made road and the exterior limits of the located highway may be required for various purposes ; as for making and ' The People v. Cunningham, 1 Denio, 524. And see Rex ?;. Moore, 3 B. & Aid. 184 ; Rex v. Egerly, 3 Salk. 183, carrying an unreasonable weight, with an unusual number of horses ; United States u. Hart, Pet. C. C. 390, driving through crowded streets with dangerous speed ; Burke i^. Commonwealth, 19 Penn. 412, collecting crowds in the streets by- violent and indecent language. CHAP. VI. J ILLEGAL OBSTRUCTIONS. 267 keeping in repair the travelled path ; for making sluices and watercourses ; for furnishing earth to raise the road, and, not unfrequently, from the loca- tion of the road, and from its exposure to be ob- structed by snow, the entire width of the located road is required to be kept open, to guard against accumulations of snow that might otherwise wholly obstruct the public travel at such seasons. For these and other uses, in aid of what is the leading object, the keeping in good repair the made or travelled road, the general easement in the public, acquired by the location of a highway, is coextensive with the exterior limits of the located highway ; and the question of nuisance or no nuisance does not depend upon the fact, whether that part of the highway which is alleged to have been unlawfully entered up- on and obstructed by the defendant was a portion of the highway capable of being used by the traveller." ^ § 233. In an indictment for a nuisance, the grava- men of the charge is the injury which the public have incurred in the enjoyment of their free right of passage in consequence of the act complained of; and, therefore, it has been argued, that if a benefit accrues to the public by reason of such act, which fully or more than compensates for the injury, there is no ground for indictment. This was the view urged upon the Court in Eex v. Morris,^ in which case it appeared that the defendant, the proprietor of a colliery, had constructed a railroad from it to a sea- port town, four hundred yards long, and laid upon a ' Commonwealth v. King, 13 Met. 115. An indictment and convic- tion are proper for obstructing a road established by relocation, even if it has not been used as a highway. Harrow v. The State, 1 Iowa, 439. 2 Kex V. Morris, 1 B. & Ad. 441. 268 LAW OF HIGHWAYS. [CHAP. VI. turnpike road, -which it narrowed so far that m some places there was not a clear space for two carnages to pass. The pubhc heing allowed the use of the railroad upon paying toll, it was contended that, inasmuch as it was upon the whole a convenience to the public, by facilitating the conveyance and lessening the price of coals, and by saving the turn- pike road from wear, it was not indictable. But Lord Tenterden, C. J., said: "Supposing that doc- trine to be sound, which I am not prepared to say, how does it apply in this case ? Here is a road for carts brins;in2; down coals to Swansea, and it is for the convenience of an individual, who sends coals there for sale, to make a railway along the public road for their conveyance in wagons. It is said, indeed, that all persons may use this railway who will pay for so doing, but no man has a right to tell the public, that they shall discontinue the use of such carriages as they have been accustomed to employ, and adopt another kind, in order to pass along a new description of road, paying him for the liberty of doing so." It will be observed here, that Lord Tenterden, without either admitting or deny- ing the doctrine contended for, contented himself with simply pointing out its inapplicability ; the other Justices, Parke, J. and Patterson, J. did not even give it a passing consideration. § 234. In support of this doctrine, the counsel for the defendant in the above case relied very much upon the authority of Rex v. Russell.^ This was an indictment for obstructing the navigation of the river Tyne, by the erection of staiths on the river, 1 Kex V. Eussell, 6 B. & C. 566. CHAP. YI.] ILLEGAL OBSTRUCTIONS. 269 for the delivery of coal into vessels. In his charge to the jury, Bayley, J. said : " The use of a public water is not for passage only, but for many other purposes, and many of those purposes are entitled to supersede the right of passage, and to narrow the right of passage to those parts which may not be requisite for greater and more beneficial purposes. Where there is a space of water of very considera- ble extent, some part may be most usefully applied for the purposes of commerce, and that which is so applied may be over and above that which is sufii- cient for navigation ; and where a great public benefit results from the abridgment of the exercise of the rights of passage, the great public benefit makes that abridgment no nuisance, but a useful, beneficial, and proper purpose." And he suffered the jury to take into their consideration, as part of the public benefit, the possible reduction of prices at the staith, the possible reduction of prices in the London market, and the improved quality in which the coals would arrive there. Upon a motion for a new trial, Hol- royd, J. and Bayley, J. sustained this charge. Lord Tenterden, C. J. was of the opinion, that the public benefit resulting from the better price and condition of the coals could not properly be taken into con- sideration in the question raised by this indictment, which question was, he said, " whether the naviga- tion and passage of vessels on this public navigable river was injured by these erections." Lord Ten- terden, therefore, when he refused to assent to this doctrine in Eex v. M/)rris, must be considered to have still retained the opinion here expressed, and to have intimated something more than a mere 270 LAW OF HIGHWAYS. [CHAP. VI. reluctance to acknowledge the authority of this case. And, indeed, it is not easy to understand by what legal principle this neutralization of a public wrong by a public benefit is effected. The principle, if sound, is certainly anomalous, for of no other offence could it be pleaded in justification that the public are benefited by its commission. And if any material abridgment of the public right can be authorized by reason of a compensatory benefit re- sulting therefrom, why may there not be a resuH> ant benefit so preponderating as to authorize its entire destruction? But this, it will be admitted, could be justified by nothing short of a license from the sovereign power in the State.^ § 235. But, whatever doubts may have previously existed upon this subject, they are, at least in Eng- land, put at rest by the decision of the Court of King's Bench in The King v. Ward. There the de- fendant, having been indicted for a nuisance in a navigable river and common highway by erecting an embankment across the stream and water-way of '■ See, on this subject, Kex v. Grosvenor and others, 2 Starkie, 511, and Richer v. Hart, 1 Humph. 524. In the latter case, it was held, in ac- cordance with Rex v. Russell, that a permanent erection in a navigable stream would not be a nuisance, if the general and public advantages arising from its erection greatly exceeded any slight inconvenience there- from. But in Arundell v. McCuUoch, 10 Mass. 70, a bridge over a nav- igable river, which had existed fifty years, was held to be a nuisance, not having been authorized by the legislature. To the same elfect, see Charlestown v. Middlesex, 3 Met. 202 ; Commonwealth v. Charlestown, 1 Pick. 180 ; Simmons v. Mumford, 2 R. I. 174. It would seem, if the principle laid down in Pilcher v. Hart be correct, it would have at least been alluded to in these cases. A public nuisance cannot be tolerated on the ground that the community may realize some advantages from it. Works V. Junction Railroad, 5 McLean, 425 ; Commonwealth v. Erie and Northeast Railroad Co. 27 Penn. St. 339 ; Regina v. Train, 2 B. & S. 640. CHAP. VI.] ILLEGAL OBSTRUCTIONS. 271 the river, the jury found that the embankment was a nuisance, but that the inconvenience was counter- balanced by the public benefit arising from the alter- ation. The Court held that this finding amounted to a verdict of guilty. Denman, C. J. subjected the case of Rex v. Russell to a very searching criticism. "In the infinite variety of active operations," he said, " always going forward in this industrious com- munity, no greater evil can be conceived than the encouragement of capitalists and adventurers to interfere with known public rights from motives of personal interest, on the speculation that the changes made may be rendered lawful by ulti- mately being thought to supply the public with something better than what they actually enjoy. There is no practical inconvenience in abiding by the opposite principle, for daily experience proves that great and acknowledged public improvement soon leads to a corresponding change in the law, accompanied, however, with the just condition of being compelled to compensate any portion of the public which may suffer for their advantage." ^ § 236. Besides the acts which are nuisances at common law and which are held not to be abolished by statutory enactment, the statute remedy being merely cumulative, ^ there are others which are made such by statute. These it is not proposed to enumerate. In many instances they are the same with those aiready treated of as nuisances at com- mon law ; and sometimes depend upon the nice interpretation of special statutes. ^ The King v. Ward, 4 Ad..& EI. 384. « Commonwealth v. King, 13 Met. 115; State v. Wilkinson, 2 Vt. 480. 272 LAW OF HIGHWAYS. [CHAP. VI. 2. Legalized Obstructions. § 237. But not only may nuisances be made such by statute, but also obstructions, which at common law are nuisances, may by statute cease to be such. This most frequently happens in cases where power is granted to railroad, canal, or turnpike companies to pass over or along highways. Such statutes are strictly construed, and parties acting under them can do only that which they authorize, and in the precise way and manner therein prescribed. There- fore, a railroad company, which was authorized to raise or lower a highway in order that it might be crossed without obstructing or impeding the safe and convenient use thereof, was held not to be justified in widening or diverting its course or sup- plying its place with a new way, so that the railroad would be passed at a point diflFerent from its inter- section with the original way, even though the change was for the convenience of the public.^ Where, however, a railroad company were directed, in case they cut through a highway, to make a new road as convenient as the road to be cut through or as near thereto as might be, they were held not to be bound to make it absolutely as convenient if that could be done only by a very disproportionate and unwarrantable expenditure.^ § 238. By a railway act a company was empow- ered " to divert or alter any roads or w^ays in order the more conveniently to carry the same over or ' Hughes V. The Providence and Worcester Kailroad Co. 2 R. I. 493; and see Rex u. Morris, 1 B. & Ad. 441 ; Reg. v. Eastern Counties Rail- way, 2 Ad. & El. 569. '^ Reg. V. Scott, 3 Ad. & El. (N. S.) 543. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 273 under the railway." The company, in carrying the road under the railway, had entered a skew bridge, which diverted the road to an angle of 45°, instead of 34°, which was the angle made at that particular point by the old line of the road. At the trial of an indictment against the company's engineer for so doing, the learned Judge directed the jury that, if the public sustained inconvenience by the altera- tion, they should find for the Crown ; but that, if the work was done in a mode in which an experi- enced engineer would do it, having reasonable re- gard to the interests both of the company and the public, the company had a right to make such diver- sion. The jury having found for the defendant on the ruling, the Court refused to grant a new trial.^ In that case it was observed, that " conven- iently " means both for the company and the pub- lic. § 239. Where a company were authorized to use locomotive engines upon a railway made parallel and adjacent to an ancient highway, whereby the horses of persons using the highway were frightened, it was held that such interference with the rights of the ' Keg. V. Sharpe, 3 Railw. Cas. 33; and see Reg. v. Eastern Counties Rail- way Co. 3 Railw. Cas. 22 ; Clarence Railway Co. v. Great North of Eng- land, Clarence and Hartlepool Junction Railway Co. 13 M. & W. 706 ; 3 Railw. Cas. 426. The Massachusetts Railroad Act provided that " where a railroad shall be so laid out as to cross any turnpike road or other way, it shall be so made as not to obstruct such road or way " ; the railroad compa- ny raised the grade of turnpike three feet so as to cross at grade. Held, that the word " obstruct," in its ordinary sense, means to stop up or wholly pre- vent travel, or render the road unfit for travel, and injunction refused. Newburyport Turnpike Co. v. Easterp Railroad Co. 23 Pick. 328. But see Boston and Maine Railroad u. Lawrence, 2 Allen, 107, for construction of the word " obstruct " in case of laying out a highway across the track of a railroad. 18 274 LAW OF HIGHWAYS. [CHAP. VI. public must be taken to have been contemplated and sanctioned by the legislature, since the words of the statute authorizing the use of the engines were unqualified, and the public benefit derived from the railway (whether it would have excused the alleged nuisance at common law or not) showed at least an express provision of the legislature giv- ing, such an unqualified authority was not unreason- able.^ That which is authorized by an act of the legislature cannot be a nuisance.^ § 240. But an authority, thus given, must be ex- ercised with proper skill and care, and with the observance of such precautions as the character of the obstruction or the statute which authorizes it demands.^ Where the charter of a railroad com- pany required them to purchase a turnpike road running parallel to the proposed railroad, and to as- sume the liabilities of that corporation, before they should be permitted to run cars upon their own road ; and gave them the right to lay their raUroad track across and along the bed of the turnpike, but required them " to restore the road to its former state, or in a sufficient manner not to impair its use- fulness " ; and the company, by virtue of these pro- visions, laid the track of the road by the side of the turnpike road for some distance ; it was held that, > Eex V. Pease, 4 B. & Ad. 30 ; Bordentown and S. Amboy Turnpike Co. V. Camden and Amboy Railroad Co. 2 Harr. 314 ; Kex v. Morris, 1 B. & Ad. 441. " The First Baptist Church, &c. v. The Utica and Schenectady Kail- road Co. 6 Barb. 313 ; Williams v. The New York Central Railroad Co. 18 Barb. 222 ; Commonwealth v. Clapp, 48 Penn. 53 ; State v. Gilmore, 4 Foster, 461. •> ' Bordentown and S. Amboy Turnpike Co. v. Camden and Amboy Railroad Co. supra. CHAP. YI.] LEGALIZED OBSTRUCTIONS. 275 if the proximity of the railroad to, the turnpike ren- dered it dangerous to persons travelling with teams on the latter, it was the duty of the defendants to protect them against that danger, and, if such pro- tection could not be afforded by a fence or screen, to move the tracks of their respective roads at a greater distance from each other.-^ § 241. And this power of legitimating obstruc- tions, which would otherwise be regarded as nui- sances, is not of such sovereign character that it may not be delegated either by a specific act or by a general grant of authority. Thus, it is a usual provision of our railway charters that the companies may lay their tracks across or upon public roads or streets with the consent and under the direction of the town and city authorities. Municipal corpora- tions have also large powers of this description,, by virtue of the authority with which they ard invested for the regulation and repair of highways. They have an undoubted right, for instance, to obstruct and even entirely discontinue a highway for the temporary j)urpose of repairing or regrading it. ' Moshier v. The Utioa and Schenectady Railroad Co. 8 Barb. 427 ; and see the Attorney-General v. The Great Northern Railway Co. 3 Eng. Law & Eq. 263. The English statute requires the railroad com- pany to maintain gates, whenever their track crosses a public road, and to employ proper persons to open and shut them ; and to keep them con- stantly closed except when horses, &c. passing along such road have to cross the railway. Railroad companies authorized by legislative grant may use the public streets for their vehicles, by license from municipal authorities, but not to such extent as materially to obstruct the public use. Drake v. Hudson River Railroad Co. 7 Barb. 508. But they may not occupy the street with their station-houses, nor unnecessarily with cars, &c. in making up their trains. State v. Morris and Erie Railroad, 1 Dutch. 437 ; State v. Vermont Central Railroad, 27 Vt. 103 ; Common- ' wealth V. Vermont and Massachusetts Railroad, 4 Gray, 22. 276 LAW OF HIGHWAYS. [CHAP. VI. And in cities and villages there are many uses, aside from their mere use for foot-passengers and vehicles moved by animal power, to which the municipal governments may devote the streets under their control for the promotion of health, trade, com- merce, and the public convenience. Sewers and drains may be constructed, and water-pipes and gas- pipes laid in them by their authority.^ " By the Dongan Charter," it is said, " the city of New York was invested with ' full power, license, and authority to establish, appoint, order, and direct the establish- ing, making, laying out, ordering, amending, and re- pairing of all streets, lanes, alleys, highways, &c. in and throughout the city, necessary, needful, and con- venient for the inhabitants of said city and for all travellers and passengers there.' This power has never been withdrawn or essentially changed. The corporation yet has the exclusive right to control and regulate the use of the streets in the city. In this respect it is endowed with legislative sovereign- ty. The exercise of that sovereignty has no limit, so long as it is within the objects and trusts, for which the power is conferred." ^ § 242. In the State of New York it has been much mooted, whether the use of streets by rail- roads is a use to which such streets can be legiti- mately applied without express authority. And it has been said, if not definitively decided, that the laying a railroad in a street or highway is only a new and improved method of making use of the ' Chapman v. Albany and Schenectady Eailroad Co. 10 Barb. 360 ; Plant V. Long Island Railroad Co. 10 Barb. 26. ^ Per Harris, J., in Milhau v. Sharp, 17 Barb. 435. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 277 public easement over land dedicated or appropri- ated pursuant to law for a street or highway. "The use of a street for a railroad," it has been said, "con- sists merely in adapting its surface to a particular mode of conveyance ; and, when so adapted, the run- ning of a railroad car is no more an exclusive appro- priation of the street, than the running of any other species of conveyance would be. If the additional facilities for passage and repassage, which a railroad furnishes, will haye the effect of increasing the use of the street, and thus cause some inconvenience to persons doing business, or residing in its neighbor- hood, yet, if it is not diverted from the purposes for which it was opened and laid out, no right of any person will be violated." ^ § 243. But while such are the views advanced by the New York courts, it does not seem to have been decided, in any case where that precise point was raised, that municipal corporations, exclusive of ex- press legislative authority, have the power to estab- lish a railroad in a public street. In the Trustees of the Presbyterian Society of Waterloo v. The Auburn and Rochester Railroad Company,^ the defendants, • Williams v. New York Central Railroad Co. 18 Barb. 222 ; but see Eex V. Morris, 1 B. & Ad. 441 ; ante, § 233 ; EUicottville Road Co. y. Buffalo Railroad Co. 20 Barb. 644. ' Trustees of tlie Presbyterian Society of Waterloo v. Tlie Auburn and Rochester Railroad Co. 3 Hill, 567, recognized in Seneca Road Co. i'. The Auburn and Rochester Railroad Co. 5 Ibid. 1 70. In Hamilton v. The New York and Harlem Railroad Co. 9 Paige, 171, an injunction to restrain the defendants from using their road laid in the streets of New York was refused, upon the ground that the defendants in constructing their road had complied with their charter, and that it did not interfere materially with the use of the streets, and was not therefore a nuisance which the plaintiffs, owners of adjacent property, were entitled to have restrained. 278 LAW OF HIGHWAYS. [CHAP. TI. under the sanction of their charter, constructed their railroad upon the highway in front of the plaintiff's premises, and without making him compensation, and it was held, that the plaintiff was owner of the soil of the highway, subject only to the public easement, and that the defendants could not use the highway for a railroad track without making compensation. In New Jersey and in Mississippi this decision has been directly affirmed ; and, in Mississippi, the rail- road was laid in the streets of a city, which is an im- portant fact, as the cases which support the right of subjecting a highway to the use of a railroad have relied much upon an alleged distinction between highways in the country and in cities.^ § 244. In Drake v. The Hudson Eiver Railroad Company,^ railway tracks were being laid in Canal and Hudson streets, in the city of New York, in compliance with the charter and with the assent of the city government. The plaintiffs, who were own- ers of land fronting on said streets, applied for an injunction to restrain the laying of the tracks. It appeared that the fee of the soil in the highway was vested in the city corporation ; so that the only ground upon which the plaintiffs could claim the in- junction was the consequential damage to them as adjoining proprietors. But the Court, being of the opinion that the railway was an authorized and legal ' Starr u. Camden and Atlantic Railroad Co. 4 Zabrisk. 592; Don- naher v. The State of Mississippi, 8 S. & M. 649 ; and see The Clarence Railway Co. v. The Great North of England, Clarence, and Hartford Junction Railway Co. 4 Ad. & El. (N. S.) 46 ; Fletclier v. The Auburn and Syracuse Railroad Co. 25 Wend. 462 ; but ad contra, Case of Tren- ton and Philadelphia Railroad Co. 6 Whart. 25. ^ Drake v. Hudson River Railroad Co. 7 Barb. 508. CHAP. VI.] ^LEGALIZED OBSTRUCTIONS. 279 use of the highway, and not a nuisance, held that the plaintiffs were not entitled to compensation for such damage, and dismissed the application. Plant v. Long Island Kailroad Company-' was a similar case. The plaintiff, who was the owner of a retail dry goods store upon Atlantic Street, in the city of Brooklyn, brought an action on the case for the in- jury to his property and trade caused by the con- struction of a tunnel through the street. It appear- ing that the defendants had proceeded properly un- der their charter, and with the consent of the city, and their right to the soil in the street without compensation not being in question, the Court held, that the damage to the plaintiff, if any there were, was merely damnum absque injuria, and would not support an action. In both these cases it was ex- pHcitly declared, although not necessary to the decision, that the use of the street with railroad cars, in a manner not unreasonably to obstruct the public travel, was a legitimate use of the public easement in the street, and that the city, when the streets were established, acquired the right to ap- propriate the land to all such legitimate uses as custom and the public good required. § 245. Several of the other New York cases, in which the same views were advanced, will be found to be open to the same criticism.^ But in WiUiams v. New York Central Eailroad Company,^ the question > Plant V. Long Island Railroad Co. 10 Barb. 26. » Chapman v. Albany and Schenectady Kailroad Co. 10 Barb. 360 ; Adams v. Saratoga and Washington Kailroad Co. 11 Barb. 414 ; Stuyve- sant V. Pearsall, 15 Barb. 244 ; Hamilton v. New York and Harlem Rail- road, 9 Paige, 171. ' Williams v. New York Central Kailroad Co. 18 Barb. 222. 280 LAW OP HIGHWAYS. [cHAP. VI. came before the Court in a more direct form. The action was brought to recover damages occasioned by the construction and use of the defendant's railroad on "Washington Street, in Syracuse, by an owner of lands bounding on said street, and who claimed the fee of the soil to the centre. In this case the land over which the railroad was constructed was originally dedicated by the owner to the public use for a highway; the Court, having ad- judged that the laying of the railroad was author- ized by the defendant's charter and by the munici- pal authorities of Syracuse, say : " But it is insisted that the railroad acquired no right to occupy or use the street in question, notwithstanding the assumed permission of the municipal aiithorities of Syracuse, because no provision was made for compensation to the original proprietor of the land dedicated, per- suant to the provision of the Constitution requiring compensation to be made to the owner of private property taken for public purposes. The answer to this is, that the property of the plaintiff has not been taken within the intent and meaning of the Constitution. The original owner of the land in this case dedicated it to the public use, and although the legal presumption is, that the fee of the land is in the owner, yet the easement is wholly granted to the public. The decision of the Supreme Court in this case was subsequently reversed in the Court of Appeals,^ and it was there held that the dedication did not authorize the occupation of the street for a railway, even with the consent of the Legislature and the municipal authorities, without compensation ^ Williams v. New York Central Railroad Co. 16 N. Y. 97. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 281 to the owner of the fee, and that the use for a rail- way is a new and different use, not included in the public easement acquired in lands appropriated for a highway. § 246. In Davis v. Mayor, &c. of New York,^ the municipal corpoi-ation having by an ordinance or resolution undertaken to make a grant of a right to establish a railroad in Broadway, in New York City, the Court held that such a grant was not within the power of the municipal corporation, and say in the opinion by Denio, C. J., " The feature which most widely distinguishes a railroad from an ordinary highway or street is, that the former is a strict monopoly, entirely excluding all idea of com- petition. A traveller who would go upon a railroad must take his seat in the carriage of the proprietors of the road, and pay them the price of his transpor- tation. The nature of the subject requires a unity of control and management which precludes the existence of competing carriages. There may be rival roads, but there can be no rivalry on the same road; and no more than one road can exist in Broadway without excluding altogether every other kind of travellers with carriages. We may be al- lowed, without the testimony of witnesses, to know enough of the method of operating railroads to say that their carriages are quite unlike the vehicles used on other roads. They are necessarily large machines occupying the space which would be re- quired for several carriages of any other kind, and containing passengers enough to fill a great many of the carriages used on other streets or roads. I ' Da-vis V. Major, &c. of New York, 12 N. Y. 506. 282 LAW OF HIGHWAYS. [CHAP. VI. have mentioned these particulars, which distinguish a railroad from every other species of way, for the purpose of explaining the reason why, in my judg- ment, the establishment of such a road is not within the jurisdiction conferred upon the public authorities by the general laws relative to highways, or upon the corporation of New York, over the roads and streets in that city. The power of the corporation over this subject is necessarily very large. It may lay out, open, alter, repair, and amend and regulate streets, lanes, alleys, and highways, and may direct the draining, ditching, and paving of them ; and, more- over, the common council are commissioners of highways ; and they may discontinue and close up streets in the manner specified in the statutes.-' But this power relates to and is confined to streets, &c. as such. Everything which is fairly within the idea of regulating, altering, repairing, or amending the streets, with a view to their uses and purposes as streets, may be exercised by the corporation ; but the converting of a street, or a part of a street, into a piece of ma- chinery for transporting persons with which the exist- ence of a street has no natural or necessary connec- tion is not, in my judgment, at all within the purview of the charters and acts of the legislature to which I have referred. If an existing street can be con- verted into a railway, I see no reason why the cor- poration may not authorize the laying out of a rail- road where at present no street exists. They have as ample power to lay out and establish streets as to alter and amend them ; and if they can consider ' The Montgomerie Charter, Kent Charters, pp. 15, 99, and note 31 at p. 235 ; R. L. 1813, §§ 193 - 197 ; Laws, 1818, c. 213 ; Laws, 1824, c. 39. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 283 a railway as falling within the legal notion of a street, the power extends as well to the laying out of new railroads as to changing the present streets into railroads. They can exercise the right of eminent domain in the opening of new streets ; and if a railroad is only an improved species of street, the power could be rightfully applied in con- structing a railroad wherever it might be considered that the public good would be promoted by it." And it is held, that the power given to the common council under the ancient Dongan and Montgomery charters, which have been said to give a fee in the streets of the city, does not extend to the grant of a right to construct and operate a railway in the streets.' § 247. In Kentucky, in the case of The Lexing- ton and Ohio Eailroad v. Applegate,^ the question came before the Court in regard to the city govern- ment of Louisville, and, in that case, the right of the city to authorize the location, construction, and use of a railroad through the streets, was affirmed. The owners of property on the streets, it was main- tained, held or acquired the same subject to all the consequences which might result, whether advan- tageously or disadvantageously, from any public and authorized use of the streets, in any mode pro- motive of, and consistent with, the purposes of establishing them as common highways in towns, ' Davis V. Mayor, &c. of New York, 14 N. Y. 506 ; Sixth Avenue Eailroad v. Kerr, 45 Barb. 138; People v. Third Avenue Railroad Co. 45 Barb. 63 ; People v. New York and Harlem Railroad Co. 45 Barb. 73. See also Regina v. Charlesworth, 22 Eng. Law & Eq. 235 ; Regina v. Train, 9 Cox C. C. 180. Ante, §§ 33, 91 a. ^ Lexington & Ohio R. R. v. Applegate, 8 Dana, 288. 284 LAW OF HIGHWAYS. [CHAP. VI. and compatible with the reasonable enjoyment of them by all others entitled thereto. " The onward spirit of the age," said Kobertson, C. J., in delivering the opinion, " must to a reasonable extent have its way. The law is made for the times, and will be made and modified by them. The expanded and still expanding genius of the common law should adapt it here, as elsewhere, to the improved and improving condition of our country and our coun- trymen. And therefore railroads and locomotive steam cars — the offspring, as they will also be the parent of progressive improvement — should not, in themselves, be considered as nuisances, although, in ages that are gone they might have been so held, because they would have been comparatively use- less, and therefore more mischievous." And it is the settled law, that a railroad in the street is not per se a nuisance, and being authorized by the proper authority, which by the rule generally af- firmed by the well-considered cases, must be the grant from the legislature, they are to be re- garded as rightfully in use of the highway so long as they do not exceed the limits of their grant, nor unnecessarily hinder and obstruct the ordinary travel.^ ^ Alleghany v. Ohio and Pennsylvania Railroad Co. 26 Penn. St. 355 ; Commonwealtli v. Erie and Northeast Railroad Co. 27 Penn. St. 339 ; Re- gina V. Train, 9 Cox C. C. 180 ; New Albany, &c. Railroad u. O'Dailey, 12 Ind. 557; Hentz v. Long Island Railroad Co. 13 Barb. 646; First Baptist Church in Schenectady v. S. and T. Railroad Co. 5 Barb. 79 ; Same i;. The Utica and Schenectady Railroad, 6 Barb. 313; Drake v. Hudson River Railroad Co. 7 Barb. 508 ; Hodgkins v. Long Island Rail- road Co. 4 Edwards, 411 ; Parrot v. C. H. and D. Railroad Co. 3 Ohio, St. 330; Newark Plank Road Co. v. Elmer, 1 Stockt. 754 ; Redfield on Railways, §§ 76, 250, and note. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 285 § 248. A very common kind of nuisances, which cease to be such when authorized by the legislature, is that of bridges over navigable rivers. In the United States, as has been already stated, an act of the legislature authorizing the erection of such bridges, within the limits of the State, is clearly constitutional.^ This power, however, is subordi- nate to the power vested in Congress " to regulate commerce with foreign nations, and among the sev- eral States, and with the Indian tribes," and any exer- cise of the power by a State, which in any manner conflicts with laws passed in pursuance of this pro- vision, is to that extent unconstitutional. In a New York case, it was contended, that an act authorizing the erection of a bridge across a navigable river, at a point below where the coasting trade was carried on by licensed vessels, was repugnant to the act of Congress regulating that trade, and therefore void ; and the bridge, built in compliance with its provis- ions, a nuisance. But in that case, it was held, that both the State and the general government have rights which they may exercise over and upon navigable waters, and that it is the duty of both so to exercise their several portions of the sovereign power, that the greatest good may result to the citizens at large ; and that a bridge with a draw, which shall be opened free of expense for every vessel sailing under a license as a coasting vessel, while it affords the necessary accommodations for citizens in the vicinity, or for travellers, does not impede the navigation in any essential degree, nor ^ Ante^ § 41, and the authorities there cited. 286 LAW OF HIGHWAYS. [CHAP. Yl. come in collision with any law passed by Congress for the regulation of commerce.^ § 249. In The United States v. The New Bedford Bridge/ it was decided, that an indictment would not lie in the Courts of the United States for the obstruction of a navigable river by a bridge. Wood- bury, J., in delivering the opinion, expressed his conviction, that the power conferred on Congress to regulate commerce abroad, and between the States, authorizes it to keep open and free all navigable rivers, from the ocean to the highest ports of de- livery or entry, and protect the intercourse between two or more States, on all our tide waters, and to this end to pass acts for the removal and punish- ment of unauthorized obstructions. But, he held. Congress has not yet exercised this power by de- claring such obstructions to be offences ; and until it does declare them to be such, and prescribes the extent of punishment and place of trial, though the subject-matter is within the powers granted to the general government, no particular Court has any right to try a person for causing the obstruction, or to af&x any punishment to them. But he intimated the objection against treating as a crime what has not been made so by any clause in the Constitution, or any act of Congress, does not apply to a civil suit ; and, consequently, when an individual suffers special damage by such an obstruction, he may have civil ' The People v. Saratoga and Rensselaer Kailroad Co. 15 Wend. 113 ; Gibbons v. Ogden, 9 Wheat. 203; Wilson v. The Blackbird Creek Marsh Co. 2 Peters, 245 ; State of Pennsylvania v. Wheeling Bridge Co. et al. 13 How. 518 ; Patterson v. East Bridge, 40 Maine, 404. ' The United States v. The New Bedford Bridge, 1 Woodb. & Min. 401. CHAP. VI.] LEGALIZED OBSTRUCTIONS. 287 redress by a suit, though the obstruction be au- thorized by a State, if it is contrary to the Constitu- tion, or conflicts with some clause in the acts of Congress, such as a coastwise license. § 250. The doctrine, that an individual, who suffers special damage, may proceed civilly against the party who causes such an obstruction, was estab- lished in the case of The State of Pennsylvania v. The Wheeling Bridge Company et aV This was a bridge over the Ohio Eiver, erected under the authority of a statute of Virginia. The State of Pennsylvania, having constructed lines of canal and railroad, and other means of travel and transporta- tion, in the diminution of the revenues from which they would be specially injured by this obstruction of the Ohio Kiver, proceeded on the Equity side of the United States Court for an injunction to have the bridge abated as a nuisance. It appeared that the bridge, which was a suspension-bridge, was so constructed as not to be an obstruction to the free navigation of the river by any vessels propelled by sails, which then were, or were likely to become, engaged in the commerce or navigation of the river; and that of the two hundred and fifty steam vessels which plied upon the river, only seven of the larger- sized packets were interrupted ; and this interrup- tion was occasioned by the height of the chimneys, and might be remedied by shortening the chimneys, or by contriving them so that they could be lowered in passing under the Bridge, though not without considerable injury and expense to the vessels. 1 The State of Pennsylvania v. The Wheeling Bridge Co. et al. 13 How. 518. 288 LAW OP HIGHWAYS. [CHAP. VI. The Court decided that, the Ohio being a navigable stream, subject to the commercial power of Con- gress, and over which that power has been exerted, if the act of Virginia authorized the structure of the bridge, so as to obstruct navigation, it could afford no justification to the Bridge company. "Con- gress," said McLean, J., " have not declared in terms that a State, by the construction of bridges, or otherwise, shall not obstruct the navigation of the Ohio ; but they have regulated navigation upon it, as before remarked, by licensing vessels, establish- ing ports of entry, imposing duties upon masters and other officers of boats, and inflicting severe penalties for the neglect of those duties by which damage to life or property has resulted." And the Court determined, that the complainant was entitled to have the navigation of the said river made free, either by the abatement or elevation of the bridge, so that it would cease to be an obstruc- tion, in ordinary stages of high-water, to the largest class of steam vessels navigating the Ohio Eiver ; and decreed accordingly.-^ § 251. If a bridge, erected under the sanction of a State statute, is a nuisance whenever it obstructs the free navigation of a public river, it follows that, even " As an additional ground for this decision, the Court referred to the compact made by Virginia with Kentucky, at the time of its admission into the Union, " that the use and navigation of the river Ohio, so far as the territory of the proposed State, or the territory that shall remain ■within the limits of this Commonwealth, lies thereon, shall be free and common to the citizens of the United States,'' lyhich compact, by the sanction of Congress, had become a law of the Union. But though the existence of this compact afforded a second ground, there is no intima- tion that the ground, which has been stated in the text, would not have been a sufficient basis for the decision. CHAP. VI.] WANT OF REPARATION AT COMMON LAW. 289 though not open to objection when first erected, such a bridge may subsequently become a nuisance. Congress, under its constitutional power to regulate commerce, may make it so by subsequent legisla- tion ; or, in the lapse of time, it may become such by causing accumulations of sand and a shoalness in the channel, so as to obstruct passing and repassing with vessels,^ or, by an increase in the size of vessels and steamboats, or in the height of their masts or chimneys, or by a large addition in their number, or a change in the modes of navigation, so as to render that which at first afforded ample accommodations for their passage wholly insufficient for this purpose.^ 3. Want of Reparation at Common Law. § 252. This species of nuisance, as has been re- marked,'*can only be committed by those upon whom an obligation lies to keep highways in repair. In England, the inhabitants of the several parishes at large are prima facia and of common right bound to repair all highways lying within them, unless by prescription or otherwise they can throw the burden upon particular persons ; and if it be sought to charge a particular division of a parish, it must be shown how they are bound.^ So stringent is this ^ But this must be the result of natural causes operated upon by the structure of the bridge. Dugan v. Bridge Co. 27 Penn. 303 ; Wheeler V. Worcester, 10 Allen, 591 - 605. 2 The United States v. The New Bedford Bridge, 1 Woodb. & Min. 401. ' 1 Hawk. P. C. c. 76, §§ 5, 6, 7, 8 ; 1 Ventr. 90 ; Austin's case, 1 "Ventr. 189 ; Rex v. The Mayor, &c. of Warwick, 2 Show. 201 ; Kex v. Ragley, 12 Mod. 409; Anonymous, 1 Ld. Raym. 725; Rex v. Great Broughton, 5 Burr. 2700 ; Rex v. Stoughton, 2 Wms. Saunders, 159 c; 19 290 I/AW OF HIGHWAYS. [CHAP. VI. obligation, that if others, before liable, become un- able through insolvency to make the repair,^ or if an inferior district of a parish, bound by prescription to repair the roads within it, be expressly exempted by statute,^ the common-law liability re-attaches upon the parish. No agreement by the parish with any person for the making of the repairs, and no statute imposing an obligation to repair upon other parties, will exonerate the parish from its liability, or do more than give it a remedy over against the parties so charged.^ Indeed, so conclusive is this obligation at common law, that an indictment, stating that par- ticular persons ought to repair, without averring a special cause for charging them, is bad. It must show how they are bound ; and it is not enough to show that they immemorially ought to repair; it should be shown that they have repaired.* The parish, if it would discharge itself, must point out the party who is liable, by special plea ; for, under the plea of not guilty, it can only prove that the way is in good repair.^ Former conviction against a par- ish is conclusive evidence of its liability to repair.^ Eex V. Ecclesfield, 1 B. & Aid. 348; Eex v. St. Andrew, 1 Mod. 112; Kex V. Eastington, 5 Ad. & El. 765. ' Anonymous, 1 Ld Raym. 725. ^ Kex V. Sheffield, 2 Term, 108 ; Bex v. Oxfordshire, 4 B. & C. 194. ' Kex V. St. George, Hanover Square, 3 Campb. 222 ; Kex v. Liver- pool, 3 East, 86 ; Kex v. Scarisbrook, 6 Ad. & El. 509 ; Kex v. Neather- thong, 2B. & Aid. 179. ' Rex V. Great Broughton, 5 Burr. 2700; Rex v. Penderryn, 2 Term, 513; Rex v. Mile End, Str. 163; Regina v. Scott, 2 Ld. Raym. 222; Regina v. Frydden, 10 Eng. Law & Eq. 402. * Rex V. Stoughton, 2Wms. Saund. 159 ; Rex v. St. Andrews, 1 Mod. 112; Little Bolton v. Regina, 12 Law J. (N. S.), M. C. 104. As to the liability of extra-parochial places, see Regina v. Kingsmoor, 2 B. & C. 190 ; Regina v. Midville, 4 Ad. & El. (N. S.) 240. " Regina v. Nether Hallam, 29 Eng. Law. & Eq. 200. CHAP. VI. J WANT OF EEPAEATION AT COMMON LAW. 291 § 253. But although, in England, a parish is prima facie and of common right liable to repair all high- ways within its limits, yet particiilar persons or dis- tricts of the parish may be burdened with this charge, in exemption of the parish at large ; first, in respect of enclosure, and secondly, by prescription. § 254. As to Liability in respect of Midosure. If a common highway is so founderous and out of re- pair as to become impassable, or even dangerous or incommodious to travellers, the public have a right to go upon the adjacent land, whether it be sown with grain or not.^ An enclosure of the highway takes away that liberty and convenience ; and, there- fore, if the owner of land not enclosed, next adjoin- ing to a highway, encloses his land on both sides, he is bound to make a perfect good way as long as the en- closure lasts ; and he is not excused by showing that he has made the way as good as it was at the time of the enclosure ; because if it was then defective the public might have gone on the adjoining land.^ So if one encloses land on one side which has been anciently enclosed on the other side, he ought to re- pair all the way ; but if there is no such ancient enclosure on the other side, he ought to repair but half the way.^ Also, it seems that, if, after one has enclosed a highway, he suffers it to be so much out ' i Eoll. Abr. 390 (A.), pi. 1, and (B.) pi. 1 ; Absor v. French, 2 Show. 28 ; Taylor v. Whitehead, Doug. 749. ' 1 Eoll. Abr. 390 (B.), pi. 1 ; Du-Qcombe's case, Cro. Car. 366 ; Styles, 364 ; 2 Ld. Kaym. 1170. This liabihty to repair is in the occupant, and not in the owner as owner ; and it seems that it does not accrue where the highway is not immemorial, nor where the assigning land has not, before the enclosure, been used for passage. Regina v. Kamsden, 1 Ellis, B. & E. 949. = Ee.x V. Stoughton, 1 Hawk. P. C. 76, § 7. 292 LAW OP HIGHWAYS. [CHAP. VI. of repair as to be impassable, it is lawful for passen- gers to make gaps in his hedges, and to avoid the ill way, so that they do not ride further into his en- closed grounds than is needful for avoiding the bad way.-^ Where, however, the way is altered or changed, and enclosed by a legal proceeding, or is enclosed under the authority of an act of Parliament for dividing and enclosing open common fields, the person who encloses is not bound to repair it, un- less in the case of a writ ad quod damnum the jury impose such a condition upon him, or unless the new way lies in another parish.^ And if the owner de- stroy his enclosures and again open the way, it seems that he will be freed from the repair thereof; and the burden shall thereupon revert to the parish.^ In the case of footpaths, all stiles between different enclosures must be kept in good repair by the occu- piers of the field ; and it is suflS.cient to indict him as occupier, and not as owner, for the public are not obliged to search out who is owner.* § 255. Of Liability "by Prescription. A particular person cannot be bound to such a duty by a general prescription, from what his ancestors, have done, if it be not in respect of the tenure of his land, taking of toll, or other profit ; for the act of the ancestor can- not charge the heir without profit. Where, there- fore, this liability is pleaded as chargeable on "par- ticular persons, the plea must state the consideration ' Berni's case, Sir W. Jones, 296 ; 3 Salki 180. ' Ex parte Vernon, 3 Atk. 771; Rex v. Flecknow, 1 Burr. 465; 2 Wms. Saund. 160, n. 12; Eex v. Commissioners of Llandillo, 2 Term, 232. ' 2 Wms. Saund. 160. * 1 Salk. 357, pi. 3 ; 7 Mod. 55. CHAP. VI.} WANT OP KEPARATION AT COMMON LAW. 293 on account of which such persons are bound to re- pair ; for the parish being liable as of common right, cannot exonerate themselves unless they show that the burden is cast upon some other persons, under an obligation equally durable with that which would have bound the parish, which obligation must arise in respect of some consideration of a nature as durable as the burden cast upon them.^ But, though in the case of individuals there must be such a consideration, it is said that a corporation aggre- gate may be compelled to do it by force of a gen- eral prescription, " that it ought and hath used to do it," without showing that it used to do so in respect of the tenure of certain lands, or for any other consideration ; because such a corporation, in judgment of law, never dies ; and, therefore, if it were ever bound to such a duty, it needs must con- tinue to be always so ; neither is it any plea, that such a corporation has always done it out of char- ity, for what it hath always done, it shall be pre- sumed to have been always bound to do.^ Like- wise, a particular district or division of a parish may be bound by prescription to repair the highways within its limits, and a plea alleging this fact need not state any consideration for the liability, though, in order to charge it with the repair of a highway, the highway must be stated in the indictment to be situated therein. But such a charge is said more ' Bao. Abr. Highways (F.), 13 Rep. 33; Rex v. St. Giles, Cambridge, 6 Maule & S. 260 ; Regina v. Blakemore, 9 Eng. Law & Eq. 541. ^ 1 Hawk. P. C. e. 76, § 8; c. 77, § 2; Rex v. Liverpool, 3 East, 86 ; Re» V. Stratford-upon-Avon, 14 East, 348 ; Rex v. Gloucester and Birmingham Railway Co. 9 Carr. & P. 469 ; Rex v. Machynlleth, 2 B. & C. 166. 294 LAW OP HIGHWAYS. [CHAP. -VI. properly to be considered as originating in a cus- tom than a prescription; the distinction between which is, that a prescription is always alleged in the person ; a custom ought always to be alleged in the land or place ; a prescription ought to have, by com- mon intendment, a lawful beginning ; a custom may be good although the particular reason of it can- not be assigned, for it suffices if no good reason can be assigned against it. Custom, therefore, being the ground of the liability, must be specially alleged in an indictment against a district or township, for not repairing.^ So, it seems, that several townships may be chargeable conjointly with the repair of a highway ; and that one parish may by prescription be bound to repair a highway in another parish.^ But if a way be enlarged, it seems that those who were before liable by prescription to repair it shall not have their burden increased on account of such enlargement, but that the repair of the new part of the way shall be made at the expense of the parish.^ § 256. Where lands, bound to the repair of a bridge or highway ratione tenurce, are conveyed to several persons, every one of the grantees, being a tenant of any parcel, is liable to the whole charge, and must have contribution from the others. And 1 Kex V. Eoclesfield, 1 B. & Aid. 348 ; Eex v. West Riding of York- shire, 4 B. & Aid. 623 ; Rex v. Madiynlleth, 2 B. & C. 166 ; Rex v. Heage, 1 Gale & D. 548 ; 2 Ad. & El. (N. S.) 128 ; Regina v. Barnolds- wick, 4 Ad. & El. (N. S.) 499 ; Rex v. Hatfield, 4 B. & Al. 75 ; Rex v. Great Broughton, 5 Barr, 2700. " Rex V. Bishop of Auckland, 1 Ad. & El. 749; 12 Mod. 409 ; Vin. Abr. Chirain, B. pi. 2. ♦ ' Rex V. St. Pancras, Peake, 286 ; Rex v. Townsend, 1 Doug. 421 ; 2 Camp. 494 ; 12 East, 368. CHAP. VI.J WANT OF REPARATION AT COMMON LAW. 295 the grantees are chargeable with the repair, though the grantor should convey the land or manor dis- charged of the burden, in which case the grantees must have their remedy over against the grantor. And the reason seems to be, because the whole manor or land, being once chargeable with the re- pair, the law will not suffer the owner to apportion the charge, so as to make the remedy for the pub- lic more difficult, since the necessity of the case requires the greatest expedition in cases of this na- ture; or, by alienations to insolvent persons, to render the remedy against such persons quite frus- trate. And though such land or manor come into the hands of the crown, yet the obligation or duty continues ; and any person afterwards claiming the whole, or any part of it, under the crown, will be liable to an indictment for not repairing.'^ § 257. Repair of Bridges. In England, at com- mon law, all public bridges are prima facie repair- able by the inhabitants of the county, without dis- tinction of foot, horse, or carriage bridges, unless they can show that others are bound to repair par- ticular bridges ; the liability of a county in this respect being the same as that of a parish with re- spect to highways.^ Bridges, to be repairable by the county, must, however, be public ; that is, built in a highway, and common to all the king's subjects ; and must, further, be erected over such water as answers ' Regina v. Buccleugh, 1 Salk. 358 ; Kex v. Buckeridge, 4 Mod. 48 ; 3 Vin. Abr. Apportionment, S. pi. 9 ; 1 Hawk. P. C. e. 77, § 3 ; Eex v. Oxfordshire, 16 East, 223. I 1 Hawk. P. C. c. 77, § 1 ; 2 Inst. 701 ; Rex v. W. K. of Yorkshire, 5 Burr. 2594; 2 W. Bl. 685 ; Lofft, 238; 2 East, 342; Rex v. Salop, 13 East, 95; Regina v. Southampton, 14 Eng. Law & Eq. 116. 296 LAW OF HIGHWAYS. [CHAP. VI. the description oi jiumen vel cursus aquce; that is, water ilowing in a channel between banks more or less defined, although such channel may, be occasion- ally dry.^ Whenever such a bridge is built, though it be the work of a private individual, undertaken for his own convenience, or even of the trustees un- der a turnpike act, who are empowered to raise tolls for the support of the roads, if it becomes useful to the county in general, the county shall repair it.^ But this duty of reparation does not oblige a county to widen bridges which have become too narrow for the convenient use thereof by the public.^ And though it 2)'>'i'>na facie attaches upon the county, yet may it be transferred to bodies politic, smaller dis- tricts, or individuals, by reason of prescription, cus- tom, or the tenure of land, upon precisely the same principles as apply in this respect to highways in general.* And if part of a bridge lie within a fran- chise, those of the franchise may be charged with the repairs for so much ; also, by a special tenure, a person may be charged with the repairs of one part of a bridge, and the inhabitants of the county be liable to repair the rest.* And if a foot bridge or ' Rex V. Kent, 2 East, 342 ; Rex v. Northampton, 2 Maule & S. 262; Kex V. Devon, R. & M. 144 ; Rex v, Buckinghamshire, 4 Camp. 189 ; Rex V. Oxfordshire, 1 B. & Ad. 289 ; Rex v. Derbyshire, 2 Ad. & El. (N. S.) 745 ; Rex v. Trafford, 1 B. & Ad. 874 ; 8 Bing. 204; Rex v. V\^hitney, 4 Nev. & M. 594 ; 7 Carr. & P. 208. " 2 Inst. 701 ; 1 Salk. 359 ; Glasburne Bridge case, 5 Burr. 2594 ; 2 W. Bl. 685 ; 2 East, 353, n. ; 2 East, 356, n. ; 2 East, 342 ; Rex v. Lan- cashire, 2 B. & Ad. 813 ; Rex v. Kent, 2 Maule & S. 513. ' Rex V. Cumberland, 6 Term, 194 ; 3 Bos. & P. 354 ; Rex v. Devon, 4 B. & C. 670. * See ante, § 253, et seq. <■ 1 Hawk. P. C. c. 77, § 1. CHAP. VI.] WANT OP EEPAEATION IN UNITED STATES. 297 horse bridge, with the repair of which an individual or township is charged, be enlarged to a carriage bridge, the reparation thereof shall be made as to the new by the county, and as to the old part by the individual or township pro rata} By Stat. 22 Hen. VIII. c. 5, § 9, the inhabitants of a county are bound to repair to the extent of three hundred feet of the highway at each end of the bridge ; and prima facie a party, who is liable by prescription to repair a bridge is also liable to repair the high- way to the same extent.^ 4. Want of Reparation in the United States. § 258. Such, in England, is the obligation of main- taining and repairing highways and bridges at com- mon law. In the United States, at common law, this obligation does not exist ; but in most of the States is imposed by statute on the several towns in which the highways are situate. In England, it was incident to a peculiar form of territorial organization, originating like itself in immemorial usage ; ' and when the American colonists left that organization behind them, they necessarily left the incidental ob- ligation with it. " There is," says Selden, J., in de- livering the judgment of the Supreme Court of New York, "no very close correspondence between the nature and object of the organization of towns in * Rex V. W. E. of Yorkshire, 2 East, 353 ; Regina v. Brecknockshire, 3 Eng. Law & Eq. 402. ' Ibid. ; Rex v. W. R. of Yorkshire, 7 East, 588; 5 Taunt. 284; 3 Smith, 437; Regina v. Lincoln, 8 Ad. & E. 65. See the very excellent treatise of Leonard Shelford, Esq. on Highways, pp. 34 - 42, and 44 - 52, of which this and the preceding sections relating to the common-law liability to repair highways is little more than an abridgment. 298 LAW OP HIGHWAYS. [CHAP. VI. this State and that of parishes in England. While the former are exclusively political in their charac- ter, the latter were primarily ecclesiastical, and only incidentally political through the connection in Eng- land between the church and the government. But again, towns were known in England and recognized as political bodies as well as, and distinct from, par- ishes ; and a single parish might, and frequently did embrace a number of towns. The obligation, how- ever, to repair the roads never rested upon the towns as such, unless by force of some statute or special usage and prescription. It is clear, there- fore, that towns, in this country, do not succeed to the duty of repairing highways in consequence of any special correspondence between their nature, organization, and functions, and those of parishes in England ; but if at all, it must be because, by our statutes, certain powers are given to and certain duties imposed upon towns, or rather upon their officers, in regard to roads, and because the making and repairing of roads are, to a considerable extent, accomplished through our town organizations. But it is difficult to see how this common-law obligation, the sole foundation of which is prescription or imme- morial usage, can be made to attach to bodies of modern statutory creation, unknown to the common law as they exist here. The corporate powers of towns, in this State, are clearly and fully defined by our statutes, and their obhgations can only be co- extensive with their powers.^ ' Morey v. Uewfane, 8 Barb. 645 ; Loker v. Brookline, IS Pick. 343 ; Commonwealth v. Springfield, 7 Mass. 13. But see Commonwealth v. Hopkinsville, 7 B. Mon. 38 ; City of Tallahassee v. Fortune, 3 Flor. 19 ; CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 299 § 259. But though the towns in this country are amenable to no other rule, and only to the precise measure of obligation prescribed by statute ; yet, in kind and degree, that obhgation is very much the same as at common law, or diflfers only by its severer stringency.^ Convenience and safety are the essen- tial conditions of a well-maintained highway, both at common law and by statute. Whether or not any given highway fulfils those conditions is a mixed question of law stnd fact, to be determined by the jury upon the circumstances of each particular case, under proper legal instructions froni the Court.^ In determining this question, it is the duty of the jury to consider the location of the road, the geographi- cal features of the country, the difficulty of keeping it in a better condition without an unreasonable expense, the season of the year and the kind and amount of travel having occasion to pass over it.* People U.Albany, 11 Wend. 539; State u. Murfreesboro', 11 Humph. 217. ' In Massachusetts, Maine, and Rhode Island, the obligation imposed by statute is, that the towns shall keep their highways , in repair, " so that the same may be safe and convenient for travellers, with their teams, carts, and carriages at all seasons of the year." Rev. Stats, of Massachu- setts, 0. 25, § 1 ; Rev. Stats, of Maine, tit. Ill, § 57; Public Laws of Rhode Island, p. 323, § 1. In Vermont and Connecticut, the obligation is to keep the highways " in good and sufficient repair.'' Comp. Stats, of Vermont, c. 23, § 1 ; Rev. Stats, of Connecticut, tit. 24, c. 1, § 1. 2 Green v. Danby, 12 Vt. 338; Kelsey v. Glover, 15 Vt. 708; Rice v. Montpelier, 19 Vt. 470 ; Fitz v. Boston, 4 Cush. 365; Merrill v. Hamp- den, 26 Maine, 234 ; City of Providence v. Clapp, 17 How. 161 ; Sessions V. Newport, 23 Vt. 9. ° It is no defence that the town used ordinary care, &c. in repairing, if the road was not made safe and convenient, but remained defective. Horton V. Ipswich, 12 Cush. 488. And the question of the ability of the town to build or keep in repair is not a matter for consideration, the obliga- tion to keep in repair does not vary with the wealth or poverty of the 300 LAW OF HIGHWAYS. [CHAP. VI. A road which would be safe and convenient in the country might be totally unsafe and inconvenient in the city. And this distinction applies not only to the width, but also to the hardness, smoothness, and evenness of the street. A street thickly built with shops and houses, crowded at once with heavy and bulky loads, lighter teams and wagons, horse wagons, market carts, and all the variety of light convey- ances for the transportation of persons going neces- sarily at very different rates of speed, with the ordinary exigencies of frequently crossing, recross- ing, and stopping for purposes of business at the various shops and houses, might in a few hours be crushed and broken up, if made of materials which yet would maintain a smooth and unbroken surface in a thinly settled place, and would become com- pletely choked, if of no greater width than- would furnish ample room for the travel of such place.-^ § 260. This obligation on the part of the town extends not only to the ordinarily travelled path of the highway, but also to the gutters and margins, and in cities to the sidewalks. But the measure of this obligation, as in the case of the travelled path, varies with the circumstances of each particular road ; the nature of the country, whether rough, smooth, or hilly; the amount of travel and the places near on which carriages could be turned out. town. Winship v. Enfield, 42 N. H. 197; Erie City v. Swingle, 22 Penn. 384. The degree of care, &o. necessary, is that which a discreet and cautious individual would or ought to use if the risk were his own, and should be in proportion to the magnitude of the injury likely to re- sult from its omission. City of Madison v. Ross, 3 Ind. 236. See Chi- cago V. Mayor, 18 III. 349. ' Hull V. Richmond, 2 Woodb. & M. 337; Fitz v. Boston, 4 Cush. 365 ; Church V. Cherryfield, 33 Maine, 460. CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 301 It has, however, been said that the extent of the responsibility of towns for defects and obstructions exterior to the wrought or travelled way, and for injuries suffered from such defects or obstructions, in the use of that portion of the way, is mainly a question of law, calling for special instructions from the court.-^ It is not required that towns — at least in the country — should incur the expense of having the whole width of a highway, of two or four rods, passable safely with wheels on the sides, or even a double track for wheels over all public roads includ- ing causeways and bridges.^ In many cases, as has been remarked, all the property of the town would be insufficient for that purpose. There may be ledges of rocks, ravines, and watercourses in the road, and towns are not expected in all cases to bridge the whole width of the road, to fill up ravines or cut down ledges of rock. The most that could be required in a road so difficult by nature is, that the sides should be in such a state as would admit of the passing of carriages, when they meet, without unusual delay or trouble. " If a road," says Wood- bury, J., in the case of Hull v. Richmond, " was on a steep mountain's side, or was carried up from the bed of a stream against a steep cliff of rocks or through a narrow notch or gorge among the hills, a double track would seldom be expected, though places should be made at no great distances for per- sons to turn out entirely, and others, where, by each > Eice V. Montpelier, 19 Vt. 470. » Kelsey v. Glover, 15 Vt. 708 ; Green v. Danby, 12 Vt. 338 ; Cobb V. Standish, 14 Maine, 198 ; Johnson i'. Whitefield, 18 Maine, 286; Bige- low V. Weston, 3 Pick. 267; Hull v. Richmond, 2 Woodb. & M. 337; Coggswell V. Lexington, 4 Gush. 307 ; Snow v. Adams, 1 Cush. 443. 302 LAW OF HIGHWAYS. [CHAP. VI. turning out In part, each could safely pass. Some of these distances, like the Jew's Leap, in Africa, or the Notch of the White Hills, or some modern tun- nels, might be so far apart as to require a horn to be blown or a loud halloo made to apprise others at the other end to wait. Some of them, where the road was straight, might be seen, by common vigilance, for some distance, as travellers approach, and a stop be made by either at the first convenient spot for two teams to pass each other. There must be an accommodating spirit and cautious watchfulness on these matters, in order to avoid difficulties, and more especially must these be attended to in large falls of snow in winter." ^ § 261. It has, however, been said that while the town has done its duty, when it has prepared a path- way of suitable width in such a manner that it can be conveniently travelled with teams and carriages ; the citizens are not thereby deprived of the right to travel over the whole width of the way as laid out, without being subjected to other or greater dangers than may be presented by natural obstacles or those occasioned by making and repairing the travelled path. Thus, a town is liable for an injury caused by a cedar log lying in its highway on the side of the travelled part.^ And an obstruction, without the travelled path, which would be likely to frighten horses, would undoubtedly be indictable, when, but for that fact, it would not be regarded as a nuisance.* > Hull V. Kichmond, 2 Woodb. & M. 343. '' Johnson v. Whitefield, 18 Maine, 286. And see Commonwealth v. Belding, 13 Met. 10; Smith v. AVendell, 7 Cush. 498'; Winship v. En- field, 42 N. H. 197. * But to make the town liable for neglect to remoTe it, the case should CHAP. VI. J WANT OF REPARATION IN UNITED STATES. 303 But where an injury was caused by large loose stones lying outside the gutter, and seven feet and eight inches from the cart-rut, in a highway thirty-four feet in width, the plaintiff, who sued for special dam- ages incurred thereby, was nonsuited.^ § 262. It is, moreover, no justification for a defect or obstruction that it is without the travelled path, if from its nature or position it is dangerous to such as use the road. Thus, in Cobb v. Standish, in an action for the loss of a horse, in a deep mud hole, filled .with water, partly within and partly without the limits of the located highway, and which, to the common observer, had the appearance of being a convenient watering-place for horses, Weston, C. J., remarked : " Towns are not obliged to furnish water- ing places for the public convenience, but when they are provided by nature in the highway, they ought not to be suffered to become pitfalls, first to allure and then to destroy horses or other animals turned aside to partake the refreshment to which they are thus invited." ^ And if a road pass over a bank or bridge, or along the verge of a precipice, it is the duty of the town properly to guard the edge of the road by walls or railings.^ Though, if the town has be a very clear one. Dimock v. Suffield, 30 Conn. 129 ; and see post, § 297, and cases cited. '■ Howard v. North Bridgewater, 16 Pick. 189 ; Smith v. Wendell, 7 Cash. 498 ; Kellogg v. Northampton, 4 Gray, 65 ; Hayden v. Attlebo- rough, 7 Gray, 338. Even though it exposes horses to become frightened. Keith V. Easton, 2 Allen, 554. Whether an object outside the travelled path is such an obstruction as to be a defect for which the town is hable is a question for the jury. Chamberlain v. Enfield, 43 N. H. 356. '" Cobb V. Standish, 12 Maine, 198. » Bliss V. Deerfield, 13 Pick. 102; Hunt v. Pownal, 9 Vt. 411 ; Palum V. Andover, 2 Cush. 600; Kelsey v. Greene, 15 Vt. 708 ; Alger v. Low- 304 LAW OF HIGHWAYS. [CHAP. VI. no power or right to erect such a barrier against danger, it is not answerable for the consequences which follow from the want of it.^ § 263. In cities the sidewalks are considered a part of the public streets, and as such are to be kept, like the streets themselves, in a safe and convenient state of repair through their entire width. And this ob- ligation is not varied or discharged by the exercise of the right of an adjoining owner of land to use the street or sidewalk for some private purpose, not inconsistent with the right of the public. Thus, the owner of adjoining land may build thereon, and con- struct his cellar in such a way that the doors, win- dows, and passage-ways communicate with the street through apertures opening in the sidewalks ; but it is nevertheless the duty of the city to guard against the danger which might result therefrom. And the fact that similar apertures have existed, for a long time and to a great extent in the same city, would not authorize the jury to find them not such defects as would charge the city, if they in reality cause the sidewalks to be dangerous, though it might be ad- missible as evidence tending to prove that they were not unsafe nor inconvenient. In the case of Bacon ell, 3 Allen, 402 ; Willey v. Portsmouth, 35 N. H. 303 ; Davis v. Hill, 41 N. H. 329 ; Baltimore v. Pennington, 15 Md. 12 ; Milwaukee v. Davis, 6 Wis. 377 ; Norris v. Litchfield, 35 N. H. 271. But towns are not obliged to maintain fences in other places merely to prevent travellers from straying from the highway, though there may be a dangerous place con- tiguous. Sparhawk u. Salem, 1 Allen, 30; Collins u. Dorchester, 6 Cush. 396. ' Jones V. Waltham, 4 Cush. 209 ; Davis v. Leominster, 1 Allen, 182. Nor in case of obstructions without the travelled way, if they are author- ized to be permanently maintained there, though located pursuant to the directions of the selectmen. Young v. Yarmouth, 9 Gray, 386. CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 305 V. The City of Boston, where there was an aperture thirty-seven inches long and fourteen inches in width for a cellar window, made in a sidewalk six and a half feet wide, which the plaintiff stepped into and injured his ankle, the court said: "It is true, that when a road of suitable width is made and kept in a proper state of repair, and guarded with proper barriers to protect travellers using the same, if a traveller voluntarily leaves the made road or usually travelled path, and thereby encounters pitfalls or ob- structions, endangering his person or his property, he can have no remedy against the town for an in- jury thus received without the limits of the travelled way. But the case supposed is not one of city travel. The law as to the extent of repair and what will constitute obstructions rendering a public way un- safe or inconvenient for the traveller must depend in a good degree upon the locality of the road. In the present case, the entire sidewalk was only six and a half feet in width. A sidewalk of this width, in the city of Boston, should be for its whole extent so constructed and fitted for use as to be safe for all persons passing over it." ^ So, an awning projecting over a sidewalk, though built by the owner of the building to which it is attached, is a defect for which the town or city is liable, if through decay, insecu- rity, or other cause, it is dangerous to travellers.^ But the liability in this respect is not to be extended beyond the limits established by a reasonable con- ' Bacon v. The City of Boston, 3 Cush. 1 74 ; Raymond v. Lowell, 6 Cush. 524 ; Kirby v. Boylston Market, 14 Gray, 249. 2 Drake v. The City of Lowell, 13 Met. 292; Brady v. The Cit)- of Lowell, 3 Cush. 121 ; The City of Providence v. Clapp, 17 How. 161. See Day v. Milford, 5 Allen, 98. 20 306 LAW OF HIGHWAYS. [CHAP. VI. struction of the statute, and where the plaintiflf was injured by falling snow and ice overhanging from the roof, the city was held not to be liable. And the responsibility of the city is said to be limited to injuries from structures such as, if inconsistent with the safety of travellers, would be an encroachment upon the street.^ § 264. The general duty of towns to keep their highways safe and convenient extends as well to defects and obstructions occasioned by falls and drifts of snow as by any other cause.^ The liabil- ity of towns for this species of obstruction was very thoroughly discussed and expounded in the case of The City of Providence v. Clapp, decided in the Supreme Court of the United States. In that case, the obstruction consisted of a ridge of hard-trodden snow and ice, on the centre of the sidewalk, along which the plaintiff was passing in the night time, and by means of which he fell across the ridge, breaking his thigh bone in an oblique direction. In addition to the usual obligation imposed, the statute under which the action was brought specially di- rected, that when the highways were blocked up or encumbered with snow, so much thereof should be removed or trodden down as would render the road passable. In view of this provision, it was con- tended that the towns and cities were bound only to keep their highways and streets open, in case of falls of snow, so as to be passable for travellers, and ' Hixon V. Lowell, 13 Gray, 59. " Loker u. Brookline, 13 Pick. 346; Holman v. Townsend, 13 Met. 297; Green v. Danby, 12 Vt. 338 ; Brailey u. Southborough, 6 Cush. 141 ; State V. Fryeburg, 3 Shep. 405. CHAP. VI.] WANT OF EEPAKATION IN UNITED STATES. 307 not to keep them from being slippery from ice or trodden-down snow. But the Court were of the opinion that the liabiUty of the city was not modi- fied by this special provision; that when a fall of snow took place, it was the duty of the city to use or- dinary care and diligence to restore it to a reasonably safe and convenient state ; that the law did not pre- scribe how this should be done, whether by treading down or removing the snow ; and that it was for the jury to find, as matter of fact, whether the sidewalk, at the time in question, was in a reasonably safe and convenient state, having reference to its uses. And it was also held, that in determining this question the jury might take into consideration the ordi- nances of the city, not as prescribing a binding rule, but as evidence that a removal, and not a treading down of the snow, was reasonably neces- sary.^ § 265. " The powers of the towns and of the city," said Mr. Justice Nelson, in delivering the opinion of the Court, " are as ample for the purpose of remov- ing obstructions from the highways, streets, and side- walks, arising from falls of snow and accumulations of ice, as those arising from any other cause ; and the reason for the removal, so that they may be safe and convenient for travellers, is the same in the one case as in the others. The 13th section of the act which gives the personal remedy, makes no distinc- tion in the two cases ; and, in the absence of some plain distinction pointed out by the statute, it would be exceedingly difficult, if not impossible, to state one. It is conceded, that an obstruction from falls 1 The City of Providence v. Clapp, 17 How. 161. 308 LAW OF HIGHWAYS. [cHAP. VI. of snow or accumulations of ice must be removed by the towns and cities, so as to make the highways and streets passable, and that this is a duty expressly enjoined upon them. The question is, what sort of removal will satisfy the requirement of the statute ? It is admitted, that, as it respects every other species of obstruction, the repairs must be such that the highways and streets may be safe and convenient for travellers ; and that this is a question of fact to be determined by the jury. Is an obstruction by snow or ice to be determined by any other rule, or by any other tribunal ? The counsel for the de- fendant suggests, that as it respects such safety and convenience for travellers in case of falls of snow, the statute should be construed as meaning merely, that the snow should be trodden down or removed, so that the highways and streets should not be so blocked up or encumbered as not to be safely and conveniently open and passable. But it is quite clear, that this would be a very indefinite and un- certain rule to guide either the officers, whose duty it is to remove these obstructions, or the jury in passing upon them, when the subject of legal pro- ceedings. The suggestion may be very well as an argument to the jtiry, for the purpose of satisfying them that the repairs, in the manner mentioned, were such as to fulfil the requirement of the statute, but to lay it down as a rule of law, in the terms stated, might, in many cases, and under the circum- stances, fall far short of it." § 266. " The treading down of snow when it falls in great depth, or in case of drifts, so that the high- way or street shall not be blocked up or encumbered, CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 309 may, in some sense, and for the time being, have the eflfect to remove the obstruction ; but as it respects the sidewalks and their uses, this remedy would be, at best, temporary ; and, in case of rains or extreme changes of weather, would have the effect to in- crease, rather than remove it. It is but common observation and knowledge of those familiar with the climate of our northern latitudes, that not un- frequently the most serious obstructions arise from the great depth of snow and changes in the temper- ature of the weather j and that simply treading down the snow, and leaving it in that condition without further attention, would have the eflfect to render the highways and sidewalks utterly impassa- ble. In the case also of obstructions from snow, the sidewalks may frequently require its removal, so as to make a safe and convenient passage for the pedes- trian, when, at the same time, the treading of it down in the street would answer the purpose for the traveller with his team. The nature and extent of the repairs must necessarily depend upon their loca- tion and uses ; those thronged with travellers may require much greater attention than others less fre- quented. The just rule of responsibility, and the one, we think, prescribed by the statute, whether the obstruction be by snow or by any other mate- rial, is the removal or abatement, so as to render the highway, street, or sidewalk, at all times, safe and convenient, regard being had to its locality and uses." '• ' City of Providence v. Clapp, 17 How. 168- 170 ; and see Cliurch v. Cherryfield, 33 Maine, 460. Since the decision in the City of Provi- dence V. Clapp, the law relating to highways in Rhode Island has been 310 LAW OF HIGHWAYS. [CHAP. VI. § 267. So inflexible is the obligation upon the towns to keep their roads safe and convenient, that they are not released, though another party be bound to the same duty by statute.^ In Currier v. Lowell,^ the defect was an excavation in the highway, made by its intersection with a railroad. The statute, au- thorizing the construction of the railroad, required that it should be so constructed as not to impede or obstruct the safe and convenient use of any high- amended, by limiting the liability of towns respecting the remoTal of snow from the highways. No town or city will hereafter be liable for " any injury to persons or property, caused by snow or ice obstructing any or any part of the highways therein, unless notice of the existence of the particular obstruction shall have been given to the surveyor of highways, in writing, for at least twenty-four hours before the injury was caused ; and such town or surveyor shall not thereupon have commenced the removal of such obstruction, or caused any sidewalk which may have been obstructed by ice to be rendered passable, by spreading ashes or other like substances thereon.'' In Stanton v. Springfield, 12 Allen, 566, the plaintiff, using due care, fell upon a slippery piece of smooth ice which extended across the sidewalk upon which she was walking. The Court held that the city was not liable for the injury, and say " that it could never have been intended by the legislature that the phrase ' safe and convenient ' should receive an interpretation that would mcike towns and cities liable as for a defective way merely because it is slippery, if in all other respects it is in good order and properly constructed, and the ice constituted no obstruction except by its smoothness. Hutohins v. Boston, Ibid. " If the sole cause of the accident was the slipperiness of the ice, and the walk was properly constructed for ordinary travel, so that it would not cause ice or snow to accumulate thereon and continue there, and there was at the time no such accumulation creating an obstruction, but the snow was trodden down level and even, such a condition of sidewalk would not be a defect for which the city would be liable." Instruction of Bigelow, C. J., in Johnson v. City of Lowell, cited uhi supra. ' Wallace v. New York, 2 Hilton, 440 ; Davis v. Leominster, 1 Allen, 182 ; Phillips v. Veasie, 40 Maine, 96 ; Kirby v. Boylston Market, 14 Gray, 249. " 16 Pick. 170. See also Merrill u. Inhabitants of Wilbraham, 11 Gray, 154. CHAP. VI.] WANT OP REPARATION IN UNITED STATES. 311 way across which it might pass ; and provided, that the selectmen of the town, in case it was not con- structed at the point of intersection with the high- way in such a way as to be satisfactory to them, might require any alteration or amendment which they might think necessary, and, if the company did not comply with the requirement, might make the alteration or amendment themselves, and be entitled to a remedy over against the corporation for the ex- pense thereof The Court held, that this require- ment of the act of incorporation did not discharge the liability of the town ; that the work being re- quired to be done to the satisfaction of the select- men, who, if dissatisfied, might make- the necessary alterations themselves ; the case stood, in regard to travellers, as if the town itself were making exten- sive repairs on its highway, which it would be their duty to make within a reasonable time, and, in the mean while, to guard the place of danger against exposure, and that, therefore, they were the party immediately liable to the traveller, who was injured by the want of proper precautions. And, in this case, the town was held to be liable, notwithstanding it had given notice to the superintendent of the work on the railroad, that a barrier must be put up for the protection of travellers on the highway, and such superintendent had promised that this should be done.-' In a more recent case in Vermont, where the obstruction was caused by the construction of a railroad across a highway under a similar statutory provision, it was said, that the town, though not re- ' But this case is said to carry the liability of towns to its extreme limit in this respect. Vinal v. Dorchester, 7 Gray, 423. 312 LAW OP HIGHWAYS. [CHAP. VI. quired to keep the highway passable, since this might be impracticable, was bound to see that a suitable by-way was provided for the public, and to take all proper and reasonable precautions to guard them against passing upon the highway, while it remained unsafe by reason of the operations of the railroad company in the construction of their road.^ And in case such a by-way be made by the railroad 1 Willard u. Newbury, 22 Vt. 458 ; Batty v. Duxbury, 24 Vt. 155 ; Barber v. Essex, 27 Vt. 62; Phillips v. Veasie, 40 Maine, 96 ; Murphy V. City of Chicago, 29 111. 279 ; Lowell v. Bostoa and Lowell Railroad Co. 23 Pick. 24 ; Kimball v. Bath, 38 Maine, 219 ; and see Kex v. St. George, Hanover Square, 3 Campb. 222 ; Eex u. Oxfordshire, 4 B. & C. 194; Eex V. Netherhong, 2 B. & Aid. 179. But see Sawyer v. North- field, 7 Gush. 490. Buffalo v. Holloway, 14 Barb. 101, where it is doubt- ed if the contractor is liable for not putting up barriers, &c. to protect the public from injury, no such provision being found in his contract. But this, it is suggested by an eminent writer, is a duty which every one owes to the public in all works he undertakes. Kedfield on Kailw. § 132. The responsibility of towns for obstructions or defects at railroad crossings is restricted to a liability for injuries caused by defects or want of repair, &c. concerning which the town makes no sutEcient special provision. Thus, for defect in a bridge by which the highway crossed a railroad, required by law to be kept in repair by the railroad company, the town is not liable. Sawyer v. Northfield, 7 Cush. 490. But where there is no express provision requiring other parties to keep in repair, the general liability of the town cannot be limited by implication, except to the extent to which construction and operation of the railroad deprives the town of the power to discharge its obligations in regard to the highway; and it is said in Jones v. Waltham, 4 Cush. 299, that if the town has made the crossing safe and convenient, except so far as it was impracticable to do without interfering with the railroad, the town was not liable. And so in Vinal v. Dorchester, 7 Gray, 421, of an injury, where the road was properly constructed, caused by running the cars without authority across the highway ; while in Davis v. Leominster, 1 Allen, 182, the town was liable for an injury from a pile of sleepers placed within that portion of the highway covered by the location of the railroad, by the servants of the company, upon the ground that the sleepers could be removed by the town without interfering with the au- thorized construction and operation of the railroad. CHAP. VI.] WANT OP REPARATION IN .UNITED STATES. 313 company, and used by the public with the acqui- escence of the town, the town will be hable for in- juries caused by the defects of such by-way ; there being in law no necessary privity between the travel- ler and any one but the towns, as to the sufl&ciency of the highways.^ § 268. This duty, however, is not so absolute as to admit of no qualifications. In those States which require an acceptance by the town, the town is not liable for any defect or want of repair until it has made such acceptance.^ If a road has been discon- tinued, the liability of the town ceases, and is not revived, though the road be afterwards repaired by the town surveyor.^ And where a town was allowed a year to open a new road, it was held not to be liable for defect before the expiration of the year, though such road had been partially made and thrown open to the public* If a way be dedicated for a foot-way, and accepted as such, the town is not liable for defects which make it unsafe for horses.* And, in any case, the town is liable only for the want of ordinary care and diligence ; and, whether or not ' Ibid. ' Blodget V. Royalton, 14 Vt. 28 ; Bowman v. Boston, 5 Cush. 1 ; Page V. Weathersfield, 13 Vt. 424 ; Indianapolis v. McClure, 2 Cart. 147 ; Southerland v. Jackson, 30 Maine, 102. = Tinker v. Russell, 14 Pick. 279. * Lowell V. Moscow, 3 Pairf. 300. See Calder v. Chapman, 8 Barr, 522 ; Farrow v. The State, 1 Iowa, 439. In the latter ease, it was held, that in Iowa an indictment will lie for obstructing a road established by- location, survey, and recording a, plat thereof, though it has never been open and used as a highway. But it is hardly probable that any liability can attach to the town or other party chargeable with repair, before the road has been opened. 5 Hemphill v. The City of Boston, 8 Cush. 195. 314 LAW OF HIGHWAYS. [cHAP. YI. it has exercised that is a question of fact for the jury, unless there be some definite statute provision upon the subject.^ If, for instance, a road has sus- tained an injury by the operation of causes over which the town has no control, reasonable time must be afforded to put it in a convenient and safe condition; or, if it be rendered impassable by the making of necessary repairs, the town will be excused, provided they use suitable precautions to put the public on their guard.^ But it will be no justification for them, if they unreasonably pro- tract the time of putting such road in a safe and convenient state, that there is another parallel road open and in good repair, which might be used in its place.^ § 269. Neither does this duty extend so far as to make it incumbent upon towns to restore a road, when the soil itself has been entirely removed or destroyed by the action of natural causes. In a ' City of Providence v. Clapp, 17 How. 161; Hull v. Richmond, 2 W. & M. 344 ; Reed v. Northfield, 13 Pick. 94. Where a defect in a high- way, for an injury occasioned by which to person or property the town would be liable, is found to exist on the Lord's day, it is the duty of such town to cause the defect to be repaired immediately, or to adopt meas- ures to guard against the danger, until such repair can be made ; and work, labor, or business for this purpose is a work of necessity within the statute respecting the observance of the Lord's day. Flagg v. Millbury, 4 Cush. 243. ' Kimball v. Bath, 38 Maine, 219. It is not sufficient precaution to place a barrier across a street which is defective, that shall stop persons from passing over it by the usually travelled way, without adopting measures to warn those who may lawfully come upon the dangerous por- tion of the way, from private lands adjoining, and within the limits which are closed against travellers approaching by the usual travelled way. Burnham v. City of Boston, 10 Allen, 290. ' State V. Fryeburg, 3 Shep. 105 ; Frost v. Portland, 11 Maine, 271 ; Jacobs V. Bangor, 4 Shep. 187. CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 315 recent English case,^ it appeared that a pubhc high- way originally ran down to the sea, at right angles to the shore, the land gently sloping to the water's edge. By the encroachments of the waves, a por- tion of the land and road was swept away, so that there was left a cliff twenty feet high above the beach, the road running to the edge, and there ter- minating abruptly. The highway was kept in proper repair by the parish to the very edge of the cHff. The Court held, that an indictment would not lie for not repairing that portion of the road which had been entirely washed away ; and per Maule, J. : " "We are clearly of opinion, that there is no high- way to repair. There appears to have been a road running down to the sea ; natural causes, without default of any one, have washed away and destroyed the road in great part, so that where that has taken place, the subject of repair no longer exists. An indictment for non-repair of a highway charges that there is a common and public highway, and com- plains, not that it has been destroyed, but that it is out of repair. The several authorities which have been cited ^ (and they are confirmed by common sense), show that if there be no longer any high- way, if there be nothing which can be effectually restored, by what may fairly be termed repairs, the case does not exist in which a liability is cast upon the parish. In the present case, it is found, that all that part of the highway which exists is in good repair, and that which is not passable could not be ' Kegina v. Inhabitants of Hornsea, 25 Eng. Law and Eq. 582. * The Queen v. Bamber, 5 Q. B. 279 ; The Queen v. Paul, 2 M. & K. 307 ; The King v. Montague, 4 B. & C. 698. 316 LAW OF HIGHWAYS. [CHAP. VI. made good without considerable engineering works, which, I think, the parish were not bound to exe- cute." § 270. The duty of repairing bridges, as of roads, is in the United States regulated by statute. In the New England States, this duty, for the most part, devolves upon the town, unless some particular per- son is specially charged therewith.^ If a bridge be built by an individual, and dedicated to the pubhc, and by them used for so long a period as to evince its usefulness, though for less than twenty years, and though during that period the public have used and repaired it under protest against their liability, yet it becomes a public bridge which the town Avill be bound to repair.^ And, in repairing, towns and in- dividual proprietors must preserve their bridges in such strength as will support the variety of business and travel for which they may be ordinarily required, having regard to the wants and usages of the commu- nity where they may be located.^ A bridge, carried away by a flood, must be rebuilt within a reasonable time, regard being had to the importance of the road, the magnitude of the work, the opportunity of pro- curing materials, and other circumstances connected ' Lobdell V. New Bedford, 1 Mass. 153 ; Norwich?). Commissioners, 13 Pick. 60 ; Lewis v. Litchfield, 2 Root, 436 ; State v. Franklin, 9 Conn. 3-2; State v. Compton, 2 N. H. 513 ; Bardwell u. Jamaica, 15 Vt. 438; Schoolbred v. Charleston, 2 Bay, 63 ; Sampson v. Gooikland Justices, 5 Gratt. 241 ; State v. Boscawen, 8 Foster, 195. ^ State V. Compton, 2 N. H. 513;' Wilson v. Jefferson, 13 Iowa, 181. ' Richardson v. Royalton, &c. Turnpike, 6 Vt. 496 ; Townsend v. Susquehannah Railroad Co. 6 Johns. 189. The same liability exists to keep the abutments in repair. Tolland v. Wellington, 26 Conn. 578 ; Linton u. Sh^irpsburg Bridge, 1 Grant's Cases, 414; Sussex v. Strader, 3 Harr. 102 ; People's Bridge v. Hoboken Land Co. 10 N. J. 504. CHAP. VI.] WANT OP REPARATION IN UNITED STATES. 317 with its reconstruction.^ In case of gross neglect, the party injured by the defectiveness of a bridge, may recover exemplary damages.^ § 271. But though, as a general rule, the repair of highways and bridges devolves upon the towns where they are situated, yet that obligation may, in particular instances, rest upon individuals or corpo- rations. An individual who builds a bridge over a public highway for his own exclusive benefit,^ or a corporation who, in pursuance of their charter, build a turnpike road or bridge, and take toll from passen- gers, thereby become bound to keep the road or bridge in repair.* The taking toll is in itself ^jHma facie proof of the obligation.^ And where a com- pany have established their gates, and taken toll for many years, they cannot defend themselves when indicted for not repairing their road, on the plea that the part of the road out of repair has not been so made as to be accepted, since a part of the toll so taken is considered by law as a compensation for 1 The People v. Tisdale Turnpike Co. 23 Wend. 254 ; Briggs v. Guil- ford, 8 Vt. 267. « Whipple V. Walpole, 10 N. H. 130. ' Heacock v. Sherman, 14 AVend. 58 ; Dygert v. Schenck, 23 Ibid. 446; Waterbury u. Clark, 4 Day, 198; Sawyer v. Northfield, 7 Cush. 490 ; but where an individual builds a bridge over a private way for his own benefit, he is not indictable for neglecting to repair it, though it be generally used by the public. State v. Seawell, 3 Hawks. 193. * Goshen and Sharon Turnpike Co. v. Sears, 7 Conn. 86 ; Townsend V. The Susquehannah Turnpike Co. 6 Johns. 90 ; Bartlett v. Crozier, 15 lb. 250 ; The Wayne County Turnpike Co. v. Berry, 5 Ind. 286 ; Noyes V. Turnpike Co. 11 Vt. 531; Kane v. People, 3 Wend. 363; State v. Patton, 4 Ired. 16. In the last two cases, the president and directors were held to be personally liable as for a misdemeanor, and punishable with fine and imprisonment. ' State V. Wayne, 1 Hawks, 451. 318 LAW OF HIGHWAYS. [CHAP. VI. making this part of the road.^ And such company, so long as they continue to take toll, cannot dis- charge themselves from liability to individuals by simply giving notice of danger ; to giving the notice such an effect, they must likewise refuse to take the toU.^ § 272. A private liability to repair a highway, where it exists, is coextensive with that of towns, its measure in both cases being an exercise of or- dinary care and diligence in the construction and preservation of the way.^ It does not extend to accidents, unless these accidents result from a want of this ordinary care and diligence, nor to injuries • Commonwealth v. The Worcester Turnpike Co. 3 Pick. 326. But a turnpike company are not bound to repair a bridge on the line of their road, not included in the parts completed and licensed. New Jersey v. Morris Turnpike Co. 1 South. 165 ; Sherwood v. Weston, 18 Conn. 32. ^ Randall v. The Proprietors of the Cheshire Turnpike, 6 N. H. 147. ' Townsend v. Susquehannah Turnpike Co. 6 Johns. 90 ; Baxter v. Winooski Turnpike Co. 22 Vt. 114 ; Mathews v. Winooski Turnpike Co. 24 Vt. 480 ; Ward v. Newark and Pompton Turnpike Co. 1 Spencer, 323; Talmadge v. Zanesville and Marysville Koad Co. 11 Ohio, 197. In this case, it was held, where a coach was upset by reason of a defect in the road, and the passengers injured, that the company was liable for damage to the coach, but not for damages recovered against the coach proprietors for injury to the passengers. Where a railroad company make use of a bridge by agreement with the proprietors, or by virtue of lecal proceedings, the proprietors are bound to guard against dangers which may arise from such new use. Peoria Bridge Co. v. Loomis, 20 111. 235. In England, where the company carry a highway over their road by a bridge, they are bound to keep the bridge and its approaches in repair, and to do everything requisite to keep the highway in safe condi- tion. North StaflFordshire Railroad Co. v. Dale, 8 Ellis & B. 835 ; and the town is not responsible for a defect in such a bridge which the com- pany are bound to keep in repair. Sawyer v. Northfield, 7 Cush. 490. CHAP. VI.] WANT OF REPARATION IN UNITED STATES. 319 which are occasioned by the negligence of the party injured. Thus it has been held, that a turnpike company is not liable for damages sustained by one who overloads a bridge, if it be of sufficient ordinary strength.^ Where, by statute, it was provided, that a turnpike company should not be liable for damages occasioned by the breaking of their bridge, to any person who, without the consent of the toll-gatherer or agent of the company, should drive over the bridge a loaded wagon of more than forty-five hun- dred pounds weight, it was held, that such consent could not be implied from the frequent unchallenged passage of the wagon with more than that weight, but that the consent must be obtained upon notice expressly given.^ But this liability may, of course, be enhanced by statute. Thus where it was pro- vided, that a turnpike company should be liable " to pay all damages that might happen to any person from whom toll is demandable, for any damages which should arise from defect of bridges, or want of repair of said turnpike road," the Court held, that the company was liable for any injury or ac- cident to travellers, unless they themselves were chargeable with negligence, even though from some unforeseen and unavoidable cause the road happened to be out of repair. " It is founded," the Court say, " on the consideration, that the toll is an adequate compensation for the risk assumed, and that by throwing the risk upon those who have the best means of taking precautions against it, the public will have the greatest security against actual dam- ' Richardson v. Koyalton Turnpike Co. 5 Vt. 580. * Pomeroy v. Fifth Massachusetts Turnpilie Corporation, 10 Pick. S5. 320 LAW OF HIGHWAYS. [CHAP. VI. age and loss." ^ In proceeding criminally against an individual, the indictment must set forth hoio the liability accrued.^ § 273. At common law, it is obligatory upon a canal company to take reasonable care to keep their canal free from obstructions, so that all persons who navigate the same may do so without danger. Thus, where a boat was sunk in a canal, and the company after reasonable notice thereof, neither raised the same, nor placed any signal, or gave notice of the obstruction, the company was held liable for the dam- age done to the plaintiff's ply-boat, by reason of a collision therewith. And it was remarked by Lord Denman, C. J., " We do not feel the smallest doubt that this action may be maintained. The only one of the numerous cases cited, that appeared to point the other way, is Harris v. Baker,^ where trustees of a road were held not liable to an action for a per- sonal injury arising from the plaintiff's wife falling, in the night time, over a heap of scrapings placed on the road-side by a defendant, who placed no light to give notice of the obstruction. But that case may be distinguished, as the action was against pub- lic officers who derived no benefit from the road. The present defendants, on the contrary, invite the whole public to navigate their canal, in considera- tion of the tolls paid. They have lawful power to ' Yale V. Hampden and Berkshire Turnpike Corporation, 18 Pick. 355. 2 State y. New Jersey Turnpike Co. 1 Harr. 222 ; State v. King, 3 Ired. 411 ; State v. Wayne, 1 Hawks, 451. ' Harris v. Baker, 4 M. & S. 27; Lancaster Canal Co. o. Parnaby, 11 Ad. & El. 223; Gibbs v. Trustees Liverpool Dock Co. 3 Hurl. & Nor. 164. CHAP. VI.] ABATEMENT. 321 make the canal in all respects fit for navigation, and particularly to remove the kind of obstructions by which the plaintiffs' suffered. It is the same in principle as if they announced the carrying on of a business at premises accessible only by a certain road over their land, which was open to the pubHc for that purpose, but which they only, and not the public, had a right to repair, and then left that road in so bad a state that a person's leg was broken when he came to transact business with them there. A more familiar example, and not of very rare oc- currence, is that of a shopkeeper who leaves a trap- door open in his shop, and causes a customer to fall down and suffer injury." ^ II. Eemedies. — 1. Abatement. § 274. A nuisance in the common highway may be abated, that is removed or destroyed, by any in- dividual who wants to use it in a lawful way ; and he may even enter upon the land of the party erec1> ing or continuing the nuisance, for the purpose of removing it, doing as little damage as possible to the soil or buildings.^ The reason why the law al- ' The Company of Proprietors of the Lancaster Canal Navigation v. Parnaby and others, 1 Eailway and Canal Cases, 695 ; 11 Ad. & El. 223 ; 3 Nev. & Per. 523. A private corporation is liable for an injury to. a traveller from an obstruction placed in a way built and kept in repair by them, and used by the public so as to become a thoroughfare, although the corporation was not authorized by its charter to build the way. Taylor V, Boston Water Power Co. 12 Gray, 415. 2 1 Hawk. P. C. 75, § 12 ; 2 Roll. Abr. 144, 145 ; 5 Rep. 101 ; 9 Rep. 65 ; James v. Hayward, Cro. Car. 184 ; Arundel v. M'CuUoch, 10 Mass. 70 ; Mann v. Marston, 3 Fairf 32 ; State v. Knapp, 6 Conn. 418 ; Cool V. Crommett, 13 Maine, 250; Loder v. Arnold, 2 Salk. 458; Hart v. Mayor of Albany, 9 Wend. 571 ; Moffettu. Brewer, 1 Iowa, 348. 21 322 LAW OF inGHWAYS. [chap. Tt. lows this private and summary method of doing one's self justice is, because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy ; and cannot wait for the slow progress of the ordi- nary forms of justice.'^ But although any one may abate a common nuisance obstructing a highway, and remove the materials, yet he cannot convert them to his own use.^ And the right also seems to be qualified by the exception, that it cannot lawfully be exerted if its exercise involve a breach of the peace.* "When such is the case, the party erecting the nuisance must be proceeded against according to the ordinary form of criminal procedure. Neither does this right of abatement, as has been held, go to the extent of justifying the removal of every en- croachment upon the highway, unless such encroach- ment at the same time annoys and obstructs its lawful use. Thus, in New Hampshire, in the case of Hopkins v. Crombie,* where the frame and cellar of a building extended about ten feet into the high- way, but did not cover or obstruct any of the trav- elled part thereof, the Court held the encroachment not to be such a nuisance as could, at common law, be abated by an individual unless it actually ob- structed his passage. And although, in that State, such an encroachment was declared by statute to be '111 Black. Com. pp. 5 and 6. When a nuisance has become the subject of judicial investigation, the power of a private citizen to remove it is gone. Conunon wealth v. Erie & Northeast Raiboad Co. 2 7 Penn. State, 339. ' 1 Hawls:. P. C. c. 76, § 187. = Day V. Day, 4 Md. 262. ' Hopkins v. Crombie, 4 N. H. 520; Harrower v. Kitson, 37 Barb. 301. CHAP. VI.] ABATEMENT. 323 a common nuisance and exposed the offender to in- dictment, and fine upon conviction, yet the Court were of the opinion that it was not any the more abatable for this reason. So it has been held, that if property (as oysters) be placed in the channel of a public navigable river so as to create a public nui- sance, a person navigating is not justified in dam- aging such property by running his vessel against it, if he has room to pass without so doing ; for an individual cannot abate a nuisance if he is no other- wise injured by it than as one of the public. And, therefore, the fact that such property is a nuisance is no excuse for running upon it negligently.-^ And in Burnham v. Hotchkiss,^ which was similar in its circumstances to Hopkins v. Crombie, the Court held, that whether or not a given obstruction is a nui- sance is a question of fact for the jury, and that the abatement was not justifiable unless the public travel was, by reason thereof, actually obstructed, hindered, or endangered. In this case two out of the five Judges dissented from this opinion, and Waite, J., in delivering the dissenting opinion, contended : " All erections on a highway, whether in the place used for travel or not, are nuisances, and may be abated, imless they are actually beneficial." And this view is not unsupported by authority.^ But what- ever may be the better opinion thereon, inasmuch as every proprietor adjoining a highway has a right of reasonable access thereto, the exemption does not > Colchester (Mayor, &o. of) v. Brook, 7 Ad. & El. (N. S.) 339. " Burnham v. Hotchkiss, 14 Conn. 311. = Lancaster Turnpike Co. v. Eogers, 2 Barr, 114; Bung v. Shone- berger, 2 Watts, 23 ; Dimmett v. Eskridge, 6 Munf. 308 ; Gunter t/. Gearey, 1 Cal. 462 ; Wetmore v. Tracy, 14 Wend. 250. 324 LAW OF HIGHWAYS. [CHAP. VI. extend so far as to prevent him from abating, as a nuisance, any obstruction which essentially interferes with such reasonable access, whether it be in or out of the travelled part of the highway.^ Where an obstruction in a highway is authorized by an act of the legislature for a limited period, it becomes abat- able as soon as that period expires ;^ and it has been said, that a nuisance, however long-continued, never ceases to be abatable by reason of its antiquity.* 2. Indictment. § 275. Indictment is the appropriate remedy both against individuals for positive obstructions and against towns for want of repair. An obstruction, on the part of an individual, is, as we have seen, a common-law offence, and is punishable as such, even though a statute exists imposing a penalty for the offence, unless an intent is evinced to exclude the common-law punishment ; for, as a general rule, the simple addition of a penalty by statute for an offence at common law is merely cumulative, and, in the absence of a plain meaning to the contrary, such statute detracts nothing from the ordinary remedies ' Hubbard i). Deming, 21 Conn. 357. ' Adams v. Beacb, 6 Hill, 271. " Arundel v. M'Culloch, 10 Mass. 70. But see post, Chap. VII. It has been held that a turnpike corporation have a right to remove fences or other encroachments upon their road, and are not compelled to resort to a remedy by action. Estes v. Kelsey, 8 Wend. 555. A nuisance is not to be abated with total disregard to the rights of others. A raft of timber obstructing the channel, the captain of the raft, the next morning, proposed to hire the services of a steamer, bound in, to tow the' raft out. The offer was refused, and while the captain of the raft was endeavoring to procure other assistance, the steamboat captain cut the raft in pieces in order to pass ; held, that the boat was liable. The C. D., Jr., 1 Newb. Adm. 501. CHAP. VI.] INDICTMENT. 325 at law.^ And, whatever may be the law in regard to abatement, it would seem that the author of a nuisance within the limits of a highway is liable to indictment, whether such nuisance actually obstruct the public travel or not. '^' By the location of a pub- lic highway with certain defined exterior limits," it has been said, " the public acquire an easement co- extensive with the limits of such highway. Who- ever obstructs the full enjoyment of that easement, by making deposits within such limits of the located highway, of timber, stones, or other things, to re- main there and occupy a portion of such public highway, is guilty of a nuisance at common law." ^ Where such a nuisance exists, both the party who created it and the party who continues its use or maintenance are liable to indictment ; ^ and it is no ' Renwick v. Morris, 7 Hill, 575 ; State v. Wilkinson, 2 Vt. 480 ; Com- monwealtli v. King, 13 Met. 115; State v. Hogg, 5 Ind. 515; Eex v. Balm, Cowp. 648. But see Commonwealth v. Turnpike Co. 2 Virg. Cases, 361, where it was held, that where a penalty, and the method of recovering it, is prescribed by the act incorporating a turnpike company, against the person intrusted with repairing the road, the prescribed remedy must be pursued, and the company is not criminally hable. ' Commonwealth v. King, 13 Met. 115. The construction of a railroad across a highway without proper authority is an obstruction for which the company is liable to indictment. Commonwealth v. Nashua and Lowell Railroad, 2 Gray, 54 ; Same v. Vermont and Massachusetts Railroad, 4 Gray, 22 ; Same v. Old Colony and Fall River Railroad, 14 Gray,- 93 ; and the confirmation by statute of the illegal location is no ground for arresting the judgment on an indictment for such nuisance. Ibid. ; Com- monwealth V. Erie and Northeast Railroad, 27 Penn. St. 339. ' State V. Yarnell, 12 Ired. 130 ; 1 Hawk. P. C. c. 76, § 157 ; Rex v. Stoughton, 2 Saunders, 158, 159, note; King v. Kerrison, 3 M. & Sel. 526. For continuing an obstruction after he has been ordered to remove it, a party should be prosecuted civilly for the penalty. Sweeny v. People, 28 111. 208. A grantee or tenant for years is not liable for keeping a nuisance as it was before he came into the estate, if he has had no notice to remove it, nor done any new act which is in itself a nuisance. Dodge 326 LAW OP HIGHWAYS. [CHAP. VI. defence for a master or employer, that a nuisance is caused by the acts of his servants, if such acts are done in the course of their employment; nor, on the other hand, is it any defence for the party caus- ing a nuisance that he vras only acting as an agent or overseer for another.^ It is also no defence that a nuisance has existed for more than twenty years,^ or that a new road has been opened and used a number of years in the place of the road obstructed,* nor that the portion of road which the town is bound to repair would be of no immediate practical use, because a bridge with which it connects, and which the town is not bound to maintain, has been swept away, and not rebuilt.* Where the indictment is against the town for neglect to repair, it must be brought under the statutes imposing that duty upon them ; for, though there is a close resemblance of the duties and liabilities of towns to those of par- ishes in England as to roads, and of counties as to bridges, yet those duties and liabilities do not in this country exist at common law.* § 276. In an indictment for the non-repair of a highway, it is sufficient to allege compendiously that it is a common highway, without -showing how it be- came so, or that it has been so from time imme- V. Stacy et al. 39 Vt. 560; Johnson v. Lewis, 13 Conn. 303 ; Pillsbury v. Moore, 44 Me. 154 ; MoDonough v. Oilman, 3 Allen, 264. ' State V. Bell, 5 Porter, 365. '^ Elkins u. State, 2 Humph. 543 ; Commonwealth v. Tucker, 2 Pick. 44 ; People v. Cunningham, 1 Denio, 524 ; Russell on Crimes (Amer. ed.;, 274; Mills v. Hall, 9 Wend. 315. ^ Commonwealth v. Belding, 13 Met. 10. * Commonwealth v. Deerfield, 6 Allen, 449. ' State V. Canterbury, 8 Post. 195. CHAP. VI.] INDICTMENT. 327 morial.^ Although it is not necessary to state the termini of the highway,^ yet, if they are stated, they must be proved, and care must be taken that the description is so framed as neither to exclude the parish, or town, liable, nor to seem repugnant to itself 5 for if the highway be described as between two places, both of them are necessarily excluded.'' The words "from" and ''unto" seem to have an exclusive as well as inclusive meaning.* In an in- dictment for a nuisance in obstructing a highway " leading from the township of D. into the town of C." by placing a gate across it, the termini D. and C. are excluded, and therefore if it appear that the gate was put in the township of D. the defendant must be acquitted.^ An indictment for an obstruc- tion of a public way, describing it as from A. towards and unto B., is satisfied by proof of a public way leading from A., to B. though turning backwards be- tween A. and B. at an acute angle ; and though the part from A. to the angle be an immemorial way and the part from the angle to B. be recently dedi- cated. B. was a church, and the path from A., after passing the point at which the obstruction took place, reached the churchyard, but not the church, before reaching the angle ; it was held, by Denman, Ch. J., 1 3 Term, 265 ; 2 Saund. 158, n. (4) ; The State v. Harsh, 6 Black. 346. ' Rouse V. Bardin, 1 H. Bl. 351 ; Rex v. St. Weonard's, 6 C. & P. 582 ; The State v. Hageman, 1 Green, 314 ; Commonwealth v. Newbury, 2 Pick. 51. ' 2 Saund. 158, n. (6) ; Regina v. Fisher, 8 C. & P. 612 ; The State v. Newfane, 12 Vt. 422. * Rex V. Knight, 7 B. & C. 412. « Regina v. Botfield, 1 Carr. & M. 151 ; Regina v. Ksher, 8 C. & P. 612. 328 LAW OF HIQHWATS. [CHAP. VI. and semhie per Coleridge, J., that this proof would not have supported an indictment describing the whole as an immemorial way.^ § 277. An indictment for non-repair of a highway stated that there was a queen's highway for carriages, &c., " leading from Abingdon, in the county of Berks, towards and unto the village of East Hendred in the same county," a part of which was out of repair. The part of the road charged to be out of repair was a portion of a lane called F. lane, and it was proved, that, to go from the town of Abingdon to the village of East Hendred with a carriage, a person must go four miles along the C. turnpike road, then all along F. lane, and then across W. turnpike road, and for a short distance go along a road which goes from the W. turnpike road to the village of East Hendred. It was held, that the description of the road was suf- ficient. It was not incorrect, as by this way a person would go from Abingdon to East Hendred, and by the plan it appeared to be the nearest way for a car- riage to go from the one place to the other, and a road is not less a highway because part of it is a turnpike road.^ In an indictment for non-repair, where it was alleged, " that, from the time whereof the memory of man runneth not to the contrary, there was, and yet is, a common and ancient high- way, &c., and the only other allegation as to time was, that a part of said highway, situate, &c., " on the 1st day of January in the twelfth year aforesaid and continually afterwards, until the taking of this ' Rex V. Devonshire (Marchioness of), 4 Ad. & El. 232. ' Eegina v. Steventon, 1 Carr. & K. 55 ; Shelford on Highways, p. 235. CHAP. VI.] INDICTMENT. 329 inquisition, was, and yet is," out of repair, so ttat the liege subjects of the queen could not, during the time aforesaid, nor yet can go, return, pass, &c., it was held, that the allegation of immemoriality might be rejected as surplusage, and that, without it, suffi- cient appeared on the face of the indictment, as to time, to support the liability charged.^ § 278. In an indictment for non-repaii', it is not necessary to name the owners of the land over which the highway is laid, and if part are named, and others omitted, it will not vitiate the proceedings.^ Though the commissioners of public roads are liable to crim- inal prosecution for neglect of duty, yet in New York they cannot be indicted for not repairing a bridge, unless they wilfully and unlawfully refuse to employ funds that they have on hand j and the having such funds should be averred in the indictment.* An in- dictment against an overseer of highways ought to state when he was elected, when his office com- menced and when it terminated, that he was in office during the period complained of, and that the road was within his district.* A mere error of judg- ment is not sufficient to subject commissioners to an indictment for a palpable omission of duty.* An in- dictment against a supervisor, charging that he neg- lected to keep the roads in his district in repair, without describing the particular roads or parts thereof suffered to be out of repair, is bad for un- ' Kegina v. Turweston, 1 Eng. Law & Eq. 317. ^ State V. Dover, 10 N. H. 394. ' The People v. Adsit, 2 Hill, 619 ; The State v. The Commissioners, Walker, 368. But see The State v. Harsh, 6 Blackf. 346. * The State v. Hageman, 1 Greene, 314. ' Eyman v. The People, 1 Gilman, 4. 330 LAW OP HIGHWAYS. [CHAP. YI. certainty. So in an indictment for not putting up guide-boards at crossings, it should be alleged at what crossings the neglect occurred. And where a supervisor is bound to keep a road in repair, as far as the labor of persons bound to work thereon will enable him so to do, the indictment must show affirm- atively that he could command the labor for that purpose.^ An indictment against a turnpike com- pany, for not keeping their road in repair, should show how they are bound to do so.^ A misdescrip- tion, which occasions no ambiguity as to the road intended, is immaterial.^ Where, after the finding of the bill, and before the trial, the selectmen of the town indicted for non-repair made a new road, and discontinued the one described in the indictment, it was held, that this did not defeat the prosecution against the town.* § 279. All common nuisances are regularly pun- ishable by fine and imprisonment; but as the re- moval of the nuisance is usually the chief end of the indictment, the Court will adapt the judgment to the nature of the case. Where the nuisance, therefore, is stated in the indictment to be continu- ing, and does in fact exist at the time of the judg- ment, the defendant may be commanded by the judgment to remove it at his own cost.* But in » The State v. MoMurrin, 1 Carter, 44 ; Lequat v. The People, 11 111. 330. 2 The State v. New Jersey Turnpike, 1 Harr. 222 ; The State v. Pat- ton, 4 Ired. 16 ; Commonwealth v. Hancock Free Bridge, 2 Gray, 58. ' Harrow v. The State, 1 Iowa, 439 ; Alexander v. The State, 16 Ala. 661 ; The State v. Lemay, 13 Ark. 405 ; The State v. Town of Fletcher, 13 Vt. 124. ' The State v. The Town of Fletcher, 13 Vt. 124. ' 2 Roll. Abr. 84 ; 1 Hawk. P. C. c. 75, § 14 ; Rex v. Papplneau, 1 CHAP. VI.] INJUNCTION. 331 case it does not appear by the indictment that the nuisance is a continuing nuisance, such judgment will not be awarded. If, however, the nuisance still continue, the defendant may be again indicted for continuing it.^ 8. Injunction. § 280. In Favor of the Public. In addition to these more ordinary remedies, it is now well set- tled, that a Court of Equity may take jurisdiction of public nuisances by an information filed by the Attorney-General.^ This jurisdiction is grounded upon the greater efficacy and promptitude of the remedies administered in Courts of Equity, enabling them to restrain such nuisances as are only threat- ened or are in progress, as well as to abate such as already exist, to effect their final suppression by per- petual injunction, to arrest irreparable mischief, and prevent multiplicity of suits.^ The instances of the §xercise of this remedy are, however, rare ; and it will be withheld whenever there is any doubt of the fact of the nuisance, until the fact has been estab- lished by a jury.* And, even where the nuisance is Str. 686 ; Eex v. Stead, 8 Term, 142. Upon the Law of Practice and Pleadings in indictments for nuisances, !)We Woolwych on V^^ays, pp. 220 -252; 111 Archbold's Criminal Practice and Pleading, 609-651. 1 111 Archbold's Criminal Practice and Pleading, 609-651. See Sweeny v. People, 28 111. 208. ^ Attorney-General v. Richards, 2 Anstr. 603 ; Attorney-General v. Johnson, 2 Wilson, 101-103; Attorney-General v. Forbes, 2 Mylne & C. 123 ; Attorney-General v. Burridge, 10 Price, 350 ; lb. 378 ; Attorney- General V. Manchester Railway, 1 Railway Cases, 436 ; Story's Com- mentaries on Eq. Jur. Vol. II. § 921. = Ibid. § 924. * Attorney-General v. Cleaver, 18 Ves. 217 ; Earl of Ripon v. Hobart, 1 Cooper, Sel. Cas. 333 ; S. C. 3 Mylne & K. 169. 332 LAW OF HIGHWAYS. [CHAP. VI. proved to exist, the jurisdiction is confessedly one of delicacy, and demands great caution in its exer- cise. " If," says Chancellor Kent, " a charge be of a criminal nature or an offence against the public, and does not touch the enjoyment of property, it ought not to be brought vfithin the direct jurisdiction of this Court, which was intended to deal only in mat- ters of civil right, resting in equity, or where the remedy at law was not suflficiently adequate. Nor ought the process of injunction to be applied, but with the utmost caution. It is the strong arm of the Court J and to render its operation benign and useful, it must be exercised with great discretion, and when necessity requires it." ^ ^ Attorney-General v. Utica Insurance Co. 2 Johns. 370. In this case, Chancellor Kent remarks, that the jurisdiction of Courts of Equity, in cases of public nuisance, had lain dormant for a century and a half, or from the time of Charles I. down to the year 1795, -when it was invoked in the case of Attorney-General v. Eichards, 2 Anst. 603, in which case the injury charged was a public nuisance of a particular kind, termed purpresture, which means an encroachment upon, and an enclosure of, the property of the crown, in a highway, river or harbor, and, from the fact that the precedents cited in that case were of the same description, he seems to have been of the opinion that the jurisdiction was limited to the case in which the nuisance was not only serious and dangerous but upon the scyil of the crown, and, therefore, an injury to property like the case of a private nuisance. But, in The Attorney-General v. Forbes, 2 Mylne & C. 129, 130, Lord Cottenham said: "With respect to the question of jurisdiction, it was broadly asserted, that an application to this Court to prevent a nuisance to a public road was never heard of. A little research, however, would have found many such instances. Many cases might have been produced, in which the Court has interfered to prevent nuisances to public rivers and to public harbors. And the Court of Exchequer, as well as this Court, acting as a Court of Equity, has a well-established jurisdiction, upon a proceeding by way of information, to prevent nuisances to public harbors and public roads ; and, in short, gen- erally, to prevent public nuisances.'' So, also, in the city of George- town V. The Alexandria Canal Co. 13 Peters, 98. Barbour, J., in deliv- ering the opinion of the Supreme Court of the United States, remarks, CHAP. VI.] INJUNCTION. 333 § 281. " The very fact," says Chancellor Vroom, of New Jersey, " that there may be a doubt on the sub- ject, by intelligent jurists, should be sufficient to induce caution on the part of the Court. In cases of -public nuisance, there is an undisputed jurisdic- tion in the Common-Law Courts by indictment ; and a Court of Equity ought not to interfere in a case of misdemeanor, when the object sought can be as well attained in the ordinary tribunals." Accord- ingly, the Chancellor refused an injunction sought by the Attorney-General of New Jersey, upon a bill or information, charging the defendants with being in the act of erecting a bridge over the Passaic Kiver, which is a navigable stream, in such a way as to in- terfere materially with the navigation, and calling upon the Court, on the ground that such bridge would be a serious detriment to the community, and a public nuisance, to interfere and prevent the fur- ther erection of the same, and also to order the same to be obviated and abated. In this case, it appeared that the bridge had been already in great part com- pleted ; and the Court, being of the opinion that an injunction is only a preventive remedy, and cannot be applied correctively to an injury, already done, so as to remove it, held, that the appropriate remedy was by indictment at common law.^ that this "jurisdiction has been finally sustained, upon the principle that Equity can give more adequate and complete relief than can be obtained at law." And see Rowe v. Granite Bridge Co. 21 Pick. 344 ; Common- wejilth V. Rush, 14 Penn. 372; Hale v. Attorney-General, 22 Ala. 190; Spooner u. McConnell, 1 McLean, 337; Putnam v. Valentine, 5 Ohio, 188 ; Eden on Injunctions, 157-262. '■ The Attorney-General v. The New Jersey Railroad and Transporta- tion Co. 2 Green, 136. " The rule," says the learned reporter, "admits of exceptions, and eis applied to the abatement pr removal of nuisances, 334 LAW OF HIGHWAYS. [CHAP. VI. § 282. Where, however, the public owns, not only an easement in the soil, but also the soil itself, an application for equitable relief will meet with greater favor. Thus, in The Attorney-General v. The Cohoes Company, in which the defendants were charged with having commenced cutting through the em- bankment of the Erie and Champlain Canals, for the purpose of drawing water for the supply of mills erecting by the Cohoes Company below such em- bankment, and in which the defendants denied, on oath, that any injury would result, Chancellor Wal- worth said : " The Court has jurisdiction to restrain any purpresture or unauthorized appropriation of the public property to private uses, which may amount to a public nuisance, or may injuriously affect or endanger the public interest. And where the officers intrusted with the protection of such public interests, acting under the sanction of their official oaths, believe the intended encroachment will prove injurious to the navigation of the canals, private persons should not be permitted to interfere with the waters or embankments of the canals con- trary to law, upon a mere opinion, although under the sanction of an oath, that the intended trespass upon the public rights would not be an injury to the public."^ § 283. In Favor of the private Individual Courts of either public or private, it seems not to be universally true that the remedy by injunction cannot be applied." And he cites, among other cases, Attorney-General v. Richards, 2 Anst. 603 ; The East India Co. v. Vin- cent, 2 Atk. 83 ; Robinson v. Lord Byron, 1 Bro. 588 ; Attorney- General V. Parmenter, 10 Price, 378 ; Van Bergen v. Van Bergen, 2 Johns. 272 ; 3 Johns. 282; Hammond v. Fuller, 1 Paige, 197. ' The Attorney-General!,'. The Cohoes Company, 6 Paige, 133 ; Story's Eq. Jur. §§ 921, 922. CHAP. VI.] INJUNCTION. 335 Equity, also, pursuing the analogy of the law, will take jurisdiction in case of a public nuisance, at the instance of a private person, where he is averred and proven to be in imminent danger of suffering a special injury, for which, under the circumstances of the case, the law would not afford an adequate remedy.^ In the leading case of Crowder v. Tinkler, Lord Eldon stated as the reason for granting an in- junction to restrain the establishment of a powder magazine in -a populous neighborhood and contigu- ous to the plaintiff's paper mills, that the complaint was to be considered as of, not a public nuisance simply, but what, being so in its nature, was attended with extreme probability of irreparable injury to the property of the plaintiffs, including also danger to their existence.^ But in the later cases the practice of the Courts seems to have become somewhat more liberal, and in Corning v. Lowerre, Chancellor Kent granted an injunction, to restrain the obstruction of a street in the city of New York by building a house thereon, in favor of the owners of lots on and ad- joining the street, upon the simple ground that it worked a special injury to them.* ' Georgetown v. Alexandria Canal Co. 12 Peters, 91 ; Eowe v. Granite Bridge Co. 21 Pick. 344 ; Bigelow v. The Hartford Bridge Co. 14 Conn. 565; O'Brien «. Norwich and Worcester Railroad Co. ]7 Conn. 372; Prink v. Lawrence, 20 Conn. 117; Spooner v. McConnell, 1 McLean, 33 7; Putnam v. Valentine, 5 Ohio, 190; Corning v. Lowerre, 6 Johns. 439 ; Spencer v. London and Birmingham Railway Co. 8 Sim. 392 ; Sampson v. Smith, lb. 272; Coats v. Clarence Railway Co. 1 Russ & M. 181 ; Coulson v. White, 3 Atk. 21 ; Anonymous, 3 Atk. 750 ; Barnes v. Baker, Amb. 158 ; Story, Eq. Jur. § 924 a; 1 Railway Cases, 480 ; Penn- sylvania Railroad Co. v. Pittsburg Grain Elevator Co. 50 Penn. 49 ; Stetson V. Faxon, 19 Pick. 147 ; Smith v. Boston, 7 Cush. 255. ^ Crowder v. Tinkler, 19 Vesey, 616. ' Corning v. Lowerre, 6 Johns. 439 ; and see cases above cited. 336 LAW OP HIGHWAYS. [CHAP. VI. § 284. In applications for injunction, on the ground of special injury, it is not necessary that the Attor- ney-General should be a party, although the nuisance is one which subjects the author of it to indictment.'' Thus, in Sampson v. Smith, the Vice-Chancellor said : " Here the plaintiflf represents that something has been done which is highly injurious to himself, and also to certain other individuals ; which averment it was not necessary for him to make. In a case so constituted, I do not see, if the Attorney-General were a party, that I could .make a decree which would bind the question between the defendant and the public ; and, unless having the Attorney a party would enable me to make a decree which would bind the public, through the Attorney-Gen- eral, it" appears to me that it is not necessary to make him a party." ^ But where the application is made to prevent a public nuisance, merely from apprehended danger to the community, it must be in the name or on behalf of the people. And an injunction, it has been said, will not be issued on the application of an individual to prevent the perpetra- tion of an act prohibited by a public statute, merely because it might diminish the proj&ts of a trade or business pursued by the applicant in common with a considerable class of his fellow-citizens, although the statute may have been designed principally for the protection of the interests of such class.^ ' Spencer v. Birmingham and London Railway Co. 8 Simons, 193; 11 Con. 392; Georgetown v. Alexandria Canal Co. 12 Peters, 91. ' Sampson v. Smith, 8 Simons, 272 ; 11 Con. 433. ' Smith V. Lockwood, 13 Barb. 209; Brainard v. Connecticut River Railroad, 7 Cush. 506 ; Hughes ti. Providence and W. Railroad Co. 2 Rhode Island, 494. An injunction will not issue to restrain the con- CHAP. VI. J CASE FOR SPECIAL DAMAGE. 337 4. Case for Special Damage. § 285. It is a general rule, that a private action cannot be maintained for a public injury. The rea- son of this restriction is to prevent a multiplicity of suits, which would ensue, if every one in his own person might redress the public grievance. But if any individual, from a common nuisance, suffers a more special damage than any other, in such case, and because of his special damage, he shall have his separate action on the case.^ Thus, an individual who receives a bodily hurt, or suffers a damage to his horse or carriage in consequence of a direct col- lision with an obstruction in the highway, is specially damnified, and may maintain an action against the author of the obstruction. But there are cases in which it is not so easy to distinguish the damage which is peculiar to the individual, from that which is common to hinii with the rest of the public. Thus, it has been held, that the being put to the necessity of going a circuitous route, or the being delayed on a journey by which some important affair is neg- lected, are not sufficient of themselves to warrant this action.^ But if, in addition thereto, the plaintiff, struetion of a bridge within the limits claimed by a corporation having a grant for an exclusive right, if it appears that the bridge of the com- plainants has been so far appropriated for the uses of a railroad as to render it inconvenient and dangerous for ordinary travel. Trenton Bridge v. City Bridge, 2 Beas. 46. ' Vin. Abr. tit. Chimin. Common, D. 2 ; 1 Coke, lust. 56 a; Chiches- ter V. Letheridge, Willes, 71 ; Fineaux v. Hovenden, Cro. Eliz. 664 ; Pain V. Patrick, Garth. 191 ; 3 Mod. 289 ; 2 Carter, 162 ; 5 Black. 35 ; Payne v. Kogers, 2 H. Bl. 349. ' Hubert v. Groves, 1 Esp. 148 ; Pain v. Patrick, Carth. 194 ; Barr v. Stevens, 1 Bibb, 273; Griffin v. Sanbornton, 44 N. H. 246. 22 S3 8 LAW OF HIGHWAYS. [CHAP. VI. having in part ma-de his journej, is turned back and obhged to proceed by a very circuitous route, or, meeting the obstruction, is w^ithheld from removing it so that he may pass, this vpill be sufficient.^ And, in an early case, it vras determined that an indi- vidual, who was prevented by an obstruction from carrying his corn over the most convenient road from the field where it was sowed to the place of his residence, in consequence whereof the corn was spoiled by a fall of rain, was entitled to a private action for the damage.^ So, where a wharfinger, imder a special contract to deliver coal at a par- ticular place, was impeded, in going to and fro with his carts, by the keeping open a swing bridge on his way for unreasonable spaces of time, and was in consequence obliged to provide additional carts and obtain another wharf in a different situation, he was held to have suffered special damage.^ Diversion of custom from a shop or colliery, by an obstruction of the road leading to the same, is such a special grievance as will warrant a private action. Thus, where the plaintiff was a bookseller, whose custom- ers consisted mainly of persons frequenting an ad- joining thoroughfare, which was blocked up by the continuance of an authorized obstruction after the expiration of the act authorizing the same, the Court remarked, that the plaintiff, in addition to a right of way which he enjoyed in common with others, had a shop on the roadside, the business of which was ' Griesley v. Codling, 2 Bing. 263 ; Chichester v. Letheridge, V\''illes, 71. See also Hart v. Basset, T. Jones, 156 ; Hughes v. Heiser, 1 Binney, 463. = Maynell v. Saltmarsh, Keb. 847. ^ Wiggins V. Boddington, 3 Carr. & P. 543. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 339 supported by those who passed ; that all who passed had the right of way, but all had not the shop ; and held, that for this loss of custom he was entitled to his remedy.^ In Rose v. Miles, the plaintiff, while navigating his barges laden with goods along a pub- lic navigable creek, was obstructed by the defend- ants' mooring their barge across, and obliged to unload and carry his goods over land, by reason of which he incurred considerable expense. Lord EUenborough, distinguishing this case from Hubert V. Groves, in which Lord Kenyon held it not to be enough that the plaintiff had been put to the neces- sity of going a circuitous route, by the circumstance that the plaintiff in this case had commenced his course upon the creek, and was in the act of using it when obstructed, said : '' If a man's time or his money are of any value, it seems to me that this plaintiff has shown a particular damage." ^ In Pierce V. Dart,^ the nuisance was the building of a fence across a public highway near the residence of the plaintiff. The Court said : " In considering the spe- cial damage we must lay out of view the fact that the road was more contiguous, and therefore more beneficial, to the plaintiff than to others. He might have been more injured by the obstruction on this account than others ; but it is not such an injury as the law will notice. The right of action for obstruct- ing a highway can never be determined by the dis- tance at which the party resides from it." * And in ' Wilkes V. Hungerford Market Co. 2 Bing. 281 ; Iveson v. Moore, 1 Ld. Raym. 486. " Boss V. Miles, 4 M. & Sel. 101. = Pierce v. Dart, 7 Cowen, 609. * Vide Bradbee v. Christ's Hospital, 4 Man. & Gr. 714. 340 LAW OF HIGHWAYS. [CHAP. VI. this case it was said to be the principle to be ex- tracted from all the cases, that any, the least, injury to an individual, as an expense of time or labor, &c. entitles him to an action. "It is a special damage as contradistinguished from the injury of the public in general, which is theoretical or resting in pre- sumption of law .only. In the case at bar the plain- tiff was certainly put to some expense. There was delay and labor in abating the nuisance so that he might proceed on the road." ^ § 286. At common law, however, this liability was confined to individuals who either actually obstructed the highway, or, being bound to keep it in a safe and unobstructed state, omitted that duty, and did not extend to parishes, townships, or counties, for want of reparation. The reason given in an ancient case for this restriction is, that such a defect is a public matter, which ought to be reformed by present- ment.^ In Eussell v. The Men of Devon,^ this rea- son is adopted and the additional one given, that parishes and counties being merely quasi corpora- tions, there is no corporation fund, and no legal means of obtaining one, out of which satisfaction could be made, so that if damages were recoverable they must be levied on one or two individuals, who would have no means whatever of reimbursing them- selves; for if they were to bring separate actions against each individual of the parish or county for his ' Stetson V. Faxon, 19 Pick. 147 ; Thayer v. Boston, lb. 511 ; Lansing V. Wiswall, 5 Denio, 213 ; Lansing v. Smith, 8 Cowen, 146 ; Hildreth v. Lowell, 11 Gray, 349. ^ Broke's Abr. title Sur le Case, pi. 93. ' Russell u. The Men of Devon, 2 Term, 667; Makinnon v. Penson, 25 Eng. Law & Eq. 457. CHAP. Vr.J CASE FOR SPECIAL DAMAGE. 341 proportion, it would be better that the injured party- should be without remedy, in accordance with the general principle of law, that it is better that an individual should sustain an injury than that the public should suffer an inconvenience. In the United States, the same doctrine has been affirmed.^ But in several of the States, provision is made by statute for the recovery of damages by private suit against towns, in favor of individuals who have sus- tained any injury in person or property, in conse- quence of the insufficiency of any highway or bridge repairable by such towns. In those States it is held, that the liability, being created solely by statute, cannot be extended beyond the statute measure thereof. ^ § 287. Thus, in Massachusetts, a statute which pro- vides, first, that highways shall be kept in repair at the expense of the town, so that the same shall be safe and convenient for travellers " with their horses, teams, and carriages," and then provides indemnity for any person "who shall receive any injury in his person or property by reason of any defect or want of repair," &c. has been held to embrace only inju- ries sustained while using the highway, and not the damage which a party sustains in consequence of not being able to use it, because of the neglect of the town to keep it in a proper state for such use. ' Mower v. Leicester, 9 Mass. 247; Kiddle v. Proprietors of Locks and Canals on Merrimack River, 7 Mass. 169 ; Loker v. Brookllne, 13 Pick. 343 ; Morey v. Newfane, 8 Barb. 646 ; Lynn v. Adams, 2 Cart. 143 ; Bartlett u. Crozier, 17 Johns. 439 ; Hedger v. Madison, 1 Gilm. 567 ; Keed v. Belfast, 20 Maine, 246. ' Chidsey y. Canton, 17 Conn. 475; Sawyer v. Northfield, 7 Cush. 490 ; Tlsdale v. Norton, 8 Met. 388 ; Brady v. Lowell, 3 Cush. 121 ; Kel- sey V. Glover, 15 Vt. 708 ; Farnum v. Concord, 2 N. H. 392. 342 LAW OF HIGPIWATS. [CHAP. VI. Therefore, the damage sustained by the owner of land, from being deprived of convenient access thereto by a defect in the highway, is not remedi- able under such a statute.'^ And where a highway was obstructed by snow, the plaintiff was not allowed to recover for the expense, trouble, and loss of time in extricating his team. In that case, Shaw, C. J., in commenting on the language of the statute, said it meant " physical injury in his person, or in his horse, or other matei'ial object, which can be denominated property^ and does not extend to expenses incurred, or loss, unless they are incident to such physical in- jury, and constitute one item of the damage caused by it." ^ In Maine, under a similar statute, it has been determined that a father cannot recover for the loss of the services of his minor son ; nor a hus- band for the loss of the services or society of his wife, or for expenses incurred on account of such an injury to her ; for it would not be an injury to his person nor a damage to his property, within the meaning of the statute.^ But for his own loss of time and medical expenses, where he has suffered in his person, he is entitled to compensation, and, by joining his wife in a suit, may recover for her loss of time and expenses ; the common-law rule, that the husband alone can recover, not being in force under the statute.* ' Smith V. Dedham, 8 Cush. 522 ; Holman v. Townsend, 13 Met. 297 ; Griffin V. Sanbornton, 46 N. li. 246. " Brailey v. Southborough, 6 Cush. 141 ; Willard v. Cambridge, 3 Allen, 574. ^ Reed v. Belfast, 20 Maine, 246 ; Sanford v. Augusta, 32 IMaine, 536. But see Weeks v. Shirley, 33 Maine, 271 ; Harwood v. Lowell, 4 Cush. 310; ChidseyK. Canton, 17 Conn. 475. * Sanford v. Augusta, 32 Maine, 536. CHAP. VI.] ' CASE FOE SPECIAL DAMAGE. 343 § 287 a. And this liability for injuries so sustained is held to be commensurate only with the duty im- posed, and is restricted by the language of the stat- ute imposing the duty of repairs to persons using the highways for the legitimate purposes for which towns are required to keep them in repair, in the usual and ordinary mode, and injury to a horse which had escaped and run into the highway without a driver was held not to be within the provision;^ so where the plaintiff had stopped on the highway for the purpose of conversation at the end of a street overlooking the water, and had leaned against a rail- ing, which by reason of its insufficiency gave way, and caused him to fall,^ where the party injured was driving at a rate prohibited by city ordinance, and where the highway was used merely for the purpose of play.^ And where the claim was for injuries to an elephant, by reason of a defective bridge, over which he was being driven with due care, the same court directed the case to be left to the jury to determine whether, under all the circumstances, an • Richards v. Enfield, 13 Gray, 344." ^ Stickney v. Salem, 3 Allen, 374; Heland w. Lowell, 3 Allen, 407. ^ Blodgett V. City of Boston, 8 Allen, 337. In this case, Bigelow, C. J., in giving the opinion of the Court, distinguishes between the appropriation of a portion of the highway for mere purposes of play or sport, &c., though the course of the play may involve the passing and repassing over the street, as in the instance of a boy coasting in the street, and a passing through the street in the ordinary mode for purposes of pleasure, holding the latter to be a legitimate use of the highway, in the exercise of which the pub- lic are entitled to protection and indemnity under the statute for injuries sustained by reason of defects, stating the same doctrine as to pleasure travel, in this connection, that is subsequently held in the case of Higgin- son V. Nahant, 11 Allen, in considering the question of the purposes for which a highway may be laid out and land taken for that use under the right of eminent domain. 344 LAW OF HIGHWAYS. [CHAP. TI. elephant was an animal suitable and proper to be driven or led upon the highway and bridge estab- lished for the general and common convenience of the whole community.'- And the same construction is applied to a similar statute in Maine, where a child leaned against an insufficient railing while in the street at play, though on her way home from school.^ § 288. In Maine, also, it has been determined that a person travelling with a hired horse, which is in- jured by reason of a defect in the road, may recover in his damages the value of the horse, which he has paid its owner. " The hirer," said Shepley, C. J., in announcing the judgment of the Court, " acquires a special property in the article hired, and is regarded as the owner of it for the purpose of recovering dam- ages of one who has injured it while in his possession. This rule, it is said, cannot be applicable to the pres- ent case ; for, if the horse was injured without any fault of the hirer, the loss could not fall upon him, but upon the owner. And if the loss were occa- sioned by any fault or neglect of the hirer, he would not be entitled to recover of the defendants. These positions, although founded upon acknowl- edged principles of law, do not show that the plain- tiff is not entitled to recover. They assume that ^ Gregory v. Adams, 14 Gray, 242. " Stinson v. Gardiner, 42 Maine, 248. The cases in which it is held that parties who are unnecessarily travelling on the Lord's day, or on a bridge, at a greater rate of speed than is allowed by law, might perhaps be classed under the same head, though they are put by the Court, where probably they more properly belong, upon the ground that such violation of law is a want of due care on the part of the plaintiff which bars his recovery. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 345 the hirer of a horse would not be guilty of any fault, as respects the owner, by driving him upon a highway defective and unsafe. This cannot be ad- mitted. And yet, so far as it respects those hable to keep the highway in repair, he could not be chargeable with any neglect or fault. The relations existing between the hirer and owner, and be- tween the hirer and those liable to keep a highway in repair, are not the same. The argument, there- fore, although very plausible, is not sound." ^ § 289. The statutes of Massachusetts and Maine provide that the towns shall have had reasonable notice of the defect in order to be liable for an in- jury occasioned thereby. In reference to what amounts to reasonable notice, in Reed v. Northfield,^ it was remarked : " It has often been held, in giving a construction to this act, that notice to the town of the defect of a highway may be inferred from its notoriety, and from its continuance for such a length of time as to lead to the presumption, that the proper officers of the town did in fact know, or with proper diligence and care might have known, the fact. This latter is sufficient, because this de- gree of care and vigilance they ai'e bound to exer- cise, and, therefore, if in point of fact they do not know of such defect, when by ordinary and due vigilance and care they might have known it, they ' Littlefield v. Biddeford, 29 Maine, 310. The statute gives a remedy- to any person, " who shall receive any bodily injury, or suffer any damage in his property, through any defect or want of repair," &c. Under the statute, bodily pain is a part of the injury for which damage may be re- covered. Verrill v. Minot, 31 Maine, 299 ; Mason v. Ellsworth, 32 Ibid. 271. * Eeed v. Northfield, 13 Pick. 94. 346 LAW OF HIGHWAYS. [CHAP. VI. must be responsible as if they had actual notice." In some cases it has been thought to be sufficient notice to the town that some principal or tax-paying inhabitant thereof had actual knowledge of the de- fect; and in a recent case in Maine, knowledge of the defect by two of its inhabitants capable of com- municating information of it, was held to be evi- dence of notice to the town, and it was considered not to be necessary that they should be among the principal men, or that they should be assessed for public taxes.-' § 290. But whether the action be brought at common law against an individual who has com- mitted some positive nuisance whereby the plaintiff has suffered a, special damage, or, under the statute, against the town for injuries sustained by reason of some defect or want of repair; in either case the plaintiff, to recover, must be shown not to have co7i- tributed to the injury by his own fault or by the ■ want of ordinary care.^ The town that suffers its highways to be out of repair, or the party who ob- structs the same, is answerable to the public by in- dictment, whether any person be injured or not; but not to an individual, unless he has received some particular damage by reason thereof; and, where he has been careless, it cannot be known ' Mason v. Ellsworth, 32 Me. 271 ; Springer v. Bowdoinham, 7 Greenl. 422; Hull v. Paris, 10 Shepl. 556; French v. Brunswick, 8 Shepl. 29; Lobdell V. New Bedford, 1 Mass. 152. ^ Butterfield v. Forrester, 11 East, 60 ; Flower v. Adams, 2 Taunt. 314 ; Smith v. Smith, 2 Pick. 621; Wood v. Waterville, 4 Mass. 422; Moore v. Abbot, 32 Me. 46 ; Tisdale v. Norton, 8 Met. 388 ; Noyes v. Norristown, 1 Vt. 353 ; Rice v. Montpelier, 19 Vt. 470 ; Brown v. Max- well, 6 Hill, 592, and cases cited in note ; and see post, Chap. VHI. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 347 whether the injury be hnputable to the fault of the . party defendant, or to the negligence of the party complaining.^ "Two things," says Lord Ellenbor- ough, " must concur to support this action ; an ob- struction in the road by the fault of the defendant, and no want of ordinary care to avoid it o-n the part of the plaintiff" ^ If, however, the injury be such as could not have been avoided by the exercise of ordinary care, or was wantonly caused by the de- fendant, it would seem that the plaintiff, though negligent, is entitled to recover.^ The degree of ^^ care required of the plaintiff is such care as persons of common prudence generally exercise ; and wheth- er in any given case he has exercised this degree of care is a question of fact, or a mixed question of ' Smith V. Smith, 2 Pick. 621 ; Farnum v. Concord, 2 N. H. 292. " Butterfield v. Forrester, 11 East, 60. Travel in violation of law, as on Sunday, for transaction of secular business, or at a rate of speed f6r- bidden by by-law or ordinance, is evidence of want of ordinary care. Bosworth V. Swansey, 10 Met. 363 ; Heland v. Lowell, 3 Allen, 407 ; Wor- cester V. Essex Merrimack Bridge, 1 Gray, 457. And the fact that plaintiff was lawfully in the highway is comprehended in the allegation of the use of due care by him. Jones v. Andover, 10 Allen, 18. The rule of due care applies to the character of the horse and condition of the carriage and harness, as well as to his own conduct. Davis v. Dudley, 4 Allen, 557; May u. Princeton, 11 Met. 444; Lane v. Crumby, 2 Pick. 177; Murdock u. Warwick, 4 Gray, 180; Bliss v. Wilbraham, 8 Allen, 664. Se& post, ^ 294: et seq., ^ Sii et seq. And where the plaintifi' 's horse, being frightened, without fault of the driver, becoming unmanageable and beyond control, ran agaiust or over an obstruction or defective way, causing injury, it is held that plaintiff cannot recover, for the reason that the circumstances prevented his exercising any care, and he could not therefore in any sense show himself in the exercise of due care. Davis V. Dudley, 4 Allen, 557. ' Bridge v. The Grand Junction Railway Co. 3 M. & W. 244 ; Davies V. Mann, 10 M; & W. 645 ; Kennard v. Burton, 25 Maine, 39 ; Farrar v. Green, 32 Maine, 574 ; Brownell v. Flager, 5 Hill, 282 ; Smith v. Smith, 2 Pick. 621 ; Sheffield v. Rochester, &c. Railroad Co. 2 Penn. 373; Daley V. Housatonic Railroad Co. 26 Conn. 591. 348 LAW OF HIGHWAYS. [CHAP. Yl. law and fact, to be determined by the jury under the direction of the Court.^ The burden of proving the exercise of such care rests upon the plaintiff, though it need not be directly shown, but may be inferred by the jury from the circumstances of the case.^ ' Kelsey v. Glover, 15 Vt. 708 ; Allen v. Hancock, 16 Vt. 230 ; Reed V. Northfield, 13 Pick. 94 ; Bigelow v. Rutland, 4 Gush. 247 ; Farnnm v. Goncord, 2 N. H. 292 ; Pennsylvania Railroad Co. v. Ogier, 11 Casey, 60 ; Swift V. Newbury, 36 Vt. 355. But where the admitted or uncontro- verted facts show want of proper care on the part of the plaintiff, it has been frequently held as a conclusion of law, that there was no legal cause of action. Todd v. Old Colony Railroad, 3 Allen, 18 ; Swift v. Newbury, 36 Vt. 355 ; Herring v. New York and Erie Railroad, 13 Barb. 9 ; Gahagan's Ad'x v. Boston and M. Railroad, 1 Allen, 187 ; Cen- tral Railroad v. Moore, 4 Zabris. 824 ; Schuchardt v. Aliens, 1 Wallace, 369; Gilman v. Deerfield, 16 Gray. Many cases are reported in which this rule is applied by the Courts to the facts of the case, and gener- ally its application is confined to cases in which there is an entire absence of facts proved which warrant the inference of the exercise of • due care on the part of the party injured, or where the uncontroverted facts show carelessness or negligence on his part. Reed v. Inhabitants of Deerfield, 8 Allen, 524; Parks v. Ross, 11 How. 373; Luceis v. Taunton and New Bedford Railroad, 6 Gray, 64 ; Ganett v. Manchester, &c. Railroad, 16 Gray; Snow v. Housatonic Railroad, 6 Allen, 448; Stevens v. Boxford, 10 Allen, 25 ; Fox v. Sackett, 10 Allen, 535. And in a recent case in England, it is held, that if there is a perfectly even balance upon the evidence whether the injury resulted from want of care on the one side or the other, if the evidence is equally consistent with the existence or non-existence of the negligence, the case ought not to go to the jury. Cotton v. Wood, 98 Eng. Com. Law, 568. " The truth is, that due and reasonable care cannot be defined by any abstract proposition which will be appropriate and applicable to every case which may arise.'' Burnham v. City of Boston, 10 Allen, 290. ' French v. Brunswick, 8 Shep. 29 ; Foster v. Dixfield, 6 Shep. 380 ; Cobb V. Standish, 2 Shep. 198 ; Merrill v. Hampden, 26 Maine, 234. But see Beaty v. Gilmore, 4 Harris, 463; Beach v. Parmenter, 11 Ibid. 196. In the declaration, it is enough to aver that the injury was caused by » defect, without averring the exercise of ordinary care. -May v. Prince- ton, 11 Met. 442; Adams v. Carlisle, 21 Pick. 146. Common prudence requires of a person of poor eyesight greater care than is required of persons of good eyesight. Winn v. Lowell, 1 Allen, 177. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 349 § 291. Where the injury is the result of a devia- tion from the travelled or wrought track of the road, this in itself is considered such negligence as ordinarily vpill exempt the town from liability, un- less the plaintiff be forced aside hy an accident, or is obliged to turn out for some other sufficient reason. Thus, in a case where the plaintiff", while travelling in a sleigh in the night time, deviated from the centre of the road, which was bare, to the margin, which was covered with snow and had been trav- elled, and was injured by a hole dug without the travelled path ; the Court held, that if the plaintiff" diverged without necessity, merely for the benefit of the snow, or if the horse took the same direction from a natural instinct, or from an inability to see the road on account of the darkness, the town . should not be held responsible for the consequences which ensued.^ So, if a person knows there is an obstruction in a street, and voluntarily encounters it, though, in consequence of the darkness of the night or of the rise of water over the street, he cannot see the obstruction, he will not be considered to be in the exercise of such care as will entitle him to recover ao-ainst the town.^ But a traveller is not bound to look a great distance ahead, in order to guard against obstructions which ought not to be suffered to exist. Thus, a traveller, who lost his horse upon a cause- way, which from a distant eminence he might have discovered to have been covered with water, but which, when he had descended, was out of sight, ' Kice V. Montpelier, 19 Vt. 470; Tisdale v. Norton, 8 Met. 388. ' Mount Vernon v. Dusouchett, 2 Cart. 586 ; Shepardson v. Coleman, 13 Met. 55 ; Jacobs v. Bangor, 4 Shep. 187. 350 liAW OF HIGHWAYS. [CHAP. VI. until he had proceeded too far to retreat or go on with safety, was held to be entitled to recover for the loss of his horse, if he then used ordinary care in endeavoring to extricate him.^ § 292. In the case of Erie City v. Schwingle,^ the carriage of the plaintiff was upset, whilst passing along a way deviating from the street on which he had passed, and leading to the crossing of a stream in a borough, the bridge over which had been carried away by flood, by which accident his leg was broken. It was held, that, although there were other streets in the borough by which the plaintiff could have safely reached the point towards which he was going when the accident occurred, yet if the officers of the borough permitted the street to be used without warning the public of its imperfect condition, they cannot charge the plaintiff with in- excusable negligence or want of ordinary care in using it. " They invited him," said the Court, " into that street, by not closing it up, by allowing it to be used without objection, and by putting certain re- pairs upon it, which, made it not safe, but passable with skilful driving and good luck. Culpable negli- gence, or want of ordinary care, on the part of the plaintiff would have been a defence. No proof of that kind was offered, except what may be inferred from the plaintiff's not going around some other way. We are very clear in the opinion, that that amounts to nothing in the circumstances of this case." . § 293. And where a cross-road was obstructed by ' Thompson v. Bridgewater, 7 Pick. 188. ' Erie City v. Suhwingle, 10 Harris, 384. CHAP. VI. J CASE FOR SPECIAL DAMAGE. 351 snow, and the plaintiff, having on the 28th of Jan- uary passed over it with his team of oxen and horses, had received injury in so doing, again on the morning of the 31st, at three o'clock, passed over with the same team and two empty sleds, and again received injury, no change having been made in the mean time except by the passage of three teams and sleds, the question of the negligence or due care of the plaintiff in entering upon and passing over the road on the second occasion was submitted to the jury, and the instructions to the jury sustained on exceptions.^ But in the same Court where the plaintiff had passed over a slippery and dangerous sidewalk, and in doing so remarked iipon its danger- ous condition, and on her return, in attempting to pass over it, and while passing over, slipped and fell, caus- ing the injury complained of; it is held that there is no evidence to submit to the jury on the question of the exercise of care on her part, and that the fact that the street in front and the opposite side- walk were in such condition - that they could have been used safely and conveniently tended to prove a want of care on the part of the plaintiff, and that the ruling of the Court below, that the plaintiff was not entitled to recover, was sustained.^ ' Horton v. Ipswich, 12 Cush. 488. ^ Wilson V. Cliarlestown, 8 Allen, 137. And in an unreported case, decided in Massachusetts, at January Term, 1868, in Middlesex, where the plaintiff's carriage was proceeding along a cross-road, the wrought part of which was only of sufficient width for the safe and convenient passao-e of a single vehicle ; and one of the horses, at the top of a hill, having thrown his tail over the rein ; notwithstanding the efforts of the driver to extricate the rein, and failing in that, to guide the horses in the travelled path, the horses, after going some distance at an accelerated rate of speed, went across the travelled path and over a gutter and 352 lAW OF HIGHWAYS. [CHAP. Yt. § 293 a. But a traveller who goes entirely out of the highway, because it has become dangerous or impassable by reason of want of repair, into the adjoining land, and there receives an injury,, cannot recover against the town for the injury received. " Due care and diligence," say the Court, " are to be used to avoid danger ; and if the traveller, with full knowledge that the road is out of repair, shall, with rashness, or, as it is sometimes called, fool-hardi- ness, rush into danger, he is remediless. Wherever, therefore, the road is notoriously a dangerous one, and unsafe for travelling, it becomes the duty of the traveller, upon being apprised of the actual state of things, whether this be indicated by a bar being thrown across the road, or other equally effective mode of giving notice, to abandon the route, and make use of some other public way ; otherwise he proceeds at his own peril." ^ § 294. In Wood v. Waterville, this principle was applied to a case in which the plaintiff was a sur. veyor of the highway, through a defect in which the damage resulted. In that case, the plaintiff's mare, in passing and travelling in said highway, through a defect or want of necessary repair of a pole-bridge or causeway in the same, fell down, and broke one of her legs. On the trial of an action against the town, evidence was offered that the plaintiff was the surveyor of the defective way, and rejected. After verdict for the plaintiff, a new trial ledge at a bend in the road, and the carriage was overturned, the court, after verdict for the plaintiff, held, that the judge presiding erred in sub- mitting the case to the jury. Fogg v. Nahant, May v. Same, to be re- ported 1 Browne. ' Tisdale and Wife v. Norton, 8 Met. 388. CHAP. Vi:] CASE FOR SPECIAL DAMAGE. 353 was moved for on that ground ; and Parsons, C. J., in delivering the opinion of the Court, after stating the power and duties of the surveyor under the statute, continued : " From this view of the act, it is clear that the surveyors are, bound to repair the highways, but at the expense of the town. And if the town had raised sufficient money, or if it was in the power of the surveyor to assess sufficient, and the ways have not been repaired through his neg- lect of duty, and by that neglect a defect has ex- isted from which he has sustained damage, it would be a very unreasonable construction of the act, to enable him to recover double damages of the town ; as it would reward him for his own faulty miscon- duct. We are, therefore, satisfied that the evidence offered ought to have been admitted. If the plain- tiff had neglected to spend the money raised by the town, or if the town had refused to raise any money, and the plaintiff had neglected to assess and expend a suffici'ent sura, he ought to be barred of his action." ^ § 295. The decision as to the liability of towns for injuries which are the combined result of inde- pendent concurrent causes and of defects in the highway are conflicting, and no general rule can be drawn from them. In Vermont and in Massachu- setts, it has been determined that the town may be liable for an injury which is primarily imputable to a pure accident. Thus, in Kelsey v. Glover, a frightened horse, running driverless, was crowded against the plaintiff's horse by an obstruction on the road. The Court directed the jury, that towns ' Wood V. Waterville, 4 Mass. 422 ; Todd v. Kowley, 8 Allen, 51. 23 354 LAW OF HIGHWAYS. [CHAP. VI. are bound to build and repair their roads in such a manner that they will be reasonably safe from the consequences of such accidents as may be justly expected, occasionally, to occur on such roads ; and that, in this case, if an insufficiency of the road, as thus explained, co-operated to produce the injury to the plaintiff's horse, the town was liable. And these directions, upon a motion for a new trial after verdict for the plaintiff, were affirm ed.-'- In a still earlier case, where the plaintiff and his wife were precipitated over the edge of an insufficiently guarded precipice, the Court, after acknowledging the principle, that the plaintiff would not be en- titled to damages if guilty of any negligence, either in driving or in the construction or repair of his carriage or harness, whereby the injury was, in any manner, hastened or produced, remarked as fol- lows : " In every case of damage, occurring on the highway, we could suppose a state of circumstances in which the injury would not have occurred. If the team had not been too young, or restive, or old, or too headstrong, or the harness had not been de- fective or the carriage insufficient, no loss would have intervened. It is against these constantly oc- curring accidents, that towns are required to guard in building highways. The traveller is not bound to see to it that his carriage is always perfect, and ' Kelsey v. Glover, 15 Vt. 708. See also Halley v. Winooski Turn, pike Co. 1 Aik. 74. There can be no recovery on the part of a person who is so intoxicated as to be incapable of carefully conducting himself and his team. Cassedy d. Stockbridge, 21 Vt. 391. But where a woman is the driver, it will be for the jury to determine from the character of the horse and the capacity of the driver whether there is not an exercise of ordinary care. Cobb v. Standish, 2 Shep. 178. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 355 his team of the most manageable character, and in the most perfect training before he ventures upon the highway. If he could be always sure of all this, he would not require any further guaranty of his safety, unless the roads were absolutely impassable. If the plaintiff is in the exercise of ordinary care and prudence, and the injury is attributable to the insufficiency of the road, conspiring with some acci- dental cause, the defendants are liable." ^ And in New Hampshire, under a similar statute, the same doctrine is held in the case of Norris v. Litchfield,^ where the plaintiff" was forced off" a narrow and de- fective bridge in the dark by a heavy wagon going in the opposite direction ; and the Court say : " It is not questioned that towns are liable where the dam- age sustained arises in part from defects of the road and in part from such accidents as could not be pre- vented by ordinary care and prudence." And in Winship V. Enfield, where the plaintiff's horse was frightened at some wood temporarily placed by the owner of the adjoining land within the limits of the highway for the purpose of further removal, the Court say of the proposition of the defendant town, that if the injury was occasioned in part by some unknown defect in the wagon or vice in the horse of which the plaintiff" was, without fault of hers, ignorant, the town is not liable, although the injury would not have been received but for the defect or obstruction ; " that, to establish such a rule, would go far towards saying that where the team is per- ' Hunt and Wife v. Pownal, 9 Vt. 411 ; Swift v. Newbury, 36 Vt. 355. '■ 35 N. H. 276. 356 LAW OP HIGHWAYS. [CHAP. VI. fectly manageable and under control, and obstruc- tions and defects can with ease be avoided, the town is liable ; but that, where danger begins, the liability of the town ceases. The injuries are few that are not induced, in a greater or less degree, by pre- viously unknown defects either in the carriage or harness ; or the fright of the horse, or some similar cause, usually termed accidental; and to say that, under circumstances of danger and peril from these and other accidental causes, the traveller is not enti- tled to the safety that a highway unencumbered and without defects, that is made reasonably safe against such occurrences, would afford at a time when, of all others, he has the greatest need, would seem to be repugnant to reason and common sense." ^ § 296. But, in Maine, a contrary doctrine seems to have obtained. In the case of Moore v. Abbot,^ the Judge instructed the jury, that if they should be satisfied the accident happened by the joint effect of a defect in the way and a defect in the harness rendering it unsuitable or unsafe, although such de- fect in the harness was not known, and the plaintiff was not in fault, for want of knowledge, the plaintiff would not be entitled to recover. The Court, in refusing to set aside a verdict obtained 'for the defendants, said : "An injury cannot be determined to have been occasioned by a defect in the way, so " Winsbip V. Enfield, 42 N. H. 44. 2 Moore v. Abbot, 32 Me. 46. See also Farrar v. Greene, 32 Me. 574 ; Libbey v. Greenbush, 20 Me. 47 ; Coombs v. Topsbam, 36 Me. 214 ; An- derson V. Batts, 42 Me. 346. The statutes of Massachusetts and Maine pro- vide a remedy for injuries occasioned " through any defect or want of repair " ; that of Vermont for injuries occasioned " by means of any in- sufficiency or want of repair." CHAP. VI.] CASE FOR SPECIAL DAMAGE. 357 long as it remains certain that some other cause contributed to produce the injury." A different rule " would make the town, when its ways are not in repair, an insurer against injuries, not occasioned by its own negligence, but partly by inevitable acci- dent." But, in that State, where the injury was the result of two defects, one of which frightened the horse, and rendered him unmanageable, and the other, co-operating with the unmanageableness of the horse, produced the injury, the town was held to be liable.^ And in a later case in Maine, Moulton V. Inhabitants of Sanford,^ the plaintiff's horse was frightened, while on a bridge without a railing, by an animal jumping into the water, and became un- manageable, and the wagon was thrown into the stream ; and a majority of the Court hold that the town is not liable, upon the same reasoning that governs the case of Moore v. Abbot ; and it is said that " towns are liable for injuries to travellers only when they are received through a defect in the highway. When any other efficient independent cause contributes directly to produce the injury, it cannot with certainty be said to have been received through the defect." In this case, in the dissenting opinion of Appleton, C. J., it is said, that the rule in Moore v. Abbot and subsequent cases was applied only to cases of injuries caused by some defect in carriage or harness concurring with the defect in the highway, and not to the case of an independent cause concurring with the defect. In Massachusetts, in a case almost identical with Hunt v. Pownal, ante, in its essential features, the Court said : " It seems ' "Verrill v. Minot, 31 Me. 299. » Moulton v. Sanford, 51 Me. 127. 358 LAW OF HIGHWAYS. [CHAP. VI. to US, that, where the loss is the combined result of an accident and of the defect, although the primary cause be a pure accident, yet, if there be no fault or negligence of the plaintiff, if the accident be one which common prudence and sagacity could not have foreseen and provided against, the town is liable." In this case the horse became separated from the carriage, as they were descending a steep hill, by the drawing of a bolt, and the carriage continued straight on, under the momentum it had acquired, over an embankment wall, where there was no sufiicient railing.^ In Rowell v. City of Lowell,^ the Court say, in treating of an injury upon the sidewalk which w.as caused by slipping first from the steps of a building and then upon the sidewalk till a fall caused the injury : " If the injury was caused only through the combined effect of slipping upon the steps, which were out of re- pair and unsafe, and upon the sidewalk, which also was out of repair and unsafe, the defendants would not be liable ; and so, in Kidder v. Dunstable,^ it is held that, if the injury was the combined result of a ' Palmer v. Andover, 2 Oust. 600. In the case of Davis v. Inhabitants of Dudley, 4 Allen, 557, the plaintiflf's horse was frightened by the cross- bar and thills falling upon his heels without fault of the plaintiff, and, be- coming detached from the sleigh, and beyond the control of his driver, ran in a straight course for about thirty rods against an obstruction in the road, and broke his leg. The town is held not liable, because, the horse being out of all control and care, the plaintiff cannot have been in exer- cise of due and ordinary care in relation to him ; and a distinction is made between this case and the case of Palmer v. Andover ; and the Court say, that the blind violence of the animal, acting without guidance or di- rection, became in the course and order of events the supervening and proximate cause of the injury inflicted by his running against the obstruc- tion, which was an unlawful one, and a defect in the highway. See also May V. Nahant, decided in Sup. Jud. Ct. Mass., Jan. T. 1868, Middlesex. ^ Rowell V. Lowell, 7 Gray, 101. " Kidder v. Dunstable, Ibid. 103. CHAP. VI. J CASE FOR SPECIAL DAMAGE. 359 defect in the highway and the carelessness or neg- ligence of a third party, the town is not liable. In Alger V. Lowell, the injury complained of was caused by being pushed from the street by a crowd at a place alleged to be insufficient for want of a proper railing ; and an instruction to the jury, that the plaintiff could not recover, if ha was pushed off through the wilful act or negligence of the crowd, or any person therein, is said to be sufficient ; but it is further said that the streets of a city are to be made safe and convenient for crowds using them lawfully and carefully, and that the plaintiff was jostled by other passengers, he and they using due care, does not remove the liability of the city.-^ In another case, the plaintiff was thrown down by a boy's coasting upon a slippery sidewalk, and the Court say : " Taking the rule most favorable for the plaintiff, it is very clear, that the accident happened in part from the unlawful or careless act of a third person, and so the case comes within Eowell v. Lowell and Kidder v. Dunstable." ^ In Mendale v. Warwick, it is said the jury should have been in- structed, that, if the vicious habits of the horse did operate, and did contribute to the loss, the plaintiff was not entitled to recover,^ and the responsibility of towns to travellers, in this particular, is restricted to injuries to travel which result from the defect in the highway, combined with an independent acci- dental cause, which is in no wise attributable to the misconduct or negligence of a third party ; which is, perhaps, but another mode of expressing the » Alger V. Lowell, 3 Allen, 405. ' Shepherd etuxv. Chelsea, 11 Allen, 113. M Gray, 180. 360 LAW OF HIGHWAYS. [CHAP. VI. idea of a purely, accidental contributing cause, but it seemed to contain a limitation of it. § 297. In any case, however, the liability of towns for injuries is limited to injuries from such defects and obstructions as are indictable,^ or as the town was at the time of the injury by law required to re- move ; and nuisances committed by individuals upon the highway, for which they are liable, may not amount to obstructions for which the municipal cor- poration will incur the statute liability, which is restricted to structural defects and material obstruc- , tions upon or over the way, affecting its character as a roadway. The municipal corporation has dis- charged its obligation when it has furnished a road- way of sufficient capacity, properly constructed and guarded, where fence or rail is necessary; and its further duty is to keep it as a road or street in the condition it was at first required to be put, and the liability for neglect must be commensurate with the duty imposed, and accordingly it has been held that the town or city is not liable for an injury sustained from snow and ice falling from a roof, by the running of the cars of a railroad across the highway, although the railroad was illegally constructed, and the cars ran in a dangerous manner, by the fright of a horse, caused by a collection of boys coasting in the street, or by teams loaded with trees, standing in the high- way for a market, or by a daguerreotype saloon in the highway.^ Nor does the fact that the conduct of ' Merrill u. Hampden, 26 Me. 234; Howard v. North Bridgewater, 16 Pick. 189 ; Drake v. Lowell, 13 Met. 292; Frost v. Portland, 11 Me. 271 ; Bigelow V. Weston, 3 Pick. 291 ; Snow v. Adams, 1 Cush. 443 ; Davis v. Bangor, 42 Me. 562. ' Plixon V. Lowell, 13 Gray, 59; Vinal v. Dorchester, 7 Gray, 421 CHAP. VI.] CASE FOR SPECIAL DAMAGE. 361 individuals, or use made of the highway causing the injury, was known to the municipal authorities, en- large their liability for the injuries caused thereby.^ § 297 a. The question of the extent of the liabil- ity of the town, under the statute for injuries result- ing in consequence of defects in highways, has been raised and considered in Massachusetts in several cases. In Marble v. Worcester, a horse, being driven with ordinary care, passed a hole in the ice in the street, which overturned the sleigh, threw out the driver, and released the horse from control ; ran furiously on, turned a corner, and in another street, at a distance of fifty rods from the defect which over- turned the sleigh and thus frightened the horse, struck against the plaintiff, who was passing along the highway, and injured him ; this injury the major- ity of the Court held to be too remote and discon- nected from the defect, and the plaintiff failed to re- cover.^ And in a subsequent case in the same Court, it is said to be the well-established rule, that, upon a Kay V. Manchester, 46 N. H. 59 ; Davis v. Bangor, 42 Me. 522 ; Keith v. Easton, 2 Allen, 552; Barber u. Koxbury, 11 Allen, 318; Hubbard v. Concord, 35 N. H. 68 ; Palmer v. Portsmouth, 43 N. H. 265 ; Chamber- lain V. Enfield, 43 N. H. 356. In Prindle v. Fletcher, 39 Vt. 255, under the statute which makes towns liable for "insufficiency" and "want of repair," it is held that the town was not liable for an injury caused by the giving away of the ground under the plaintilT, as he was passing over the highway, caused by a latent defect under the ground. And it is said that the duty of towns in the matter of keeping its highways in good and sufiicient repair, as affecting their liability for injuries caused by defects, is not to be measured by the exercise of ordinary care and diligence. The mere fact that the highway is slippery from ice upon it, there being no accumulation of ice or snow amounting to an obstruction, is not a defect which renders the town liable for injury. Stanton v. Spring- field, 12 Allen, 266 ; Hutchins v. Boston, Ibid. 271 n. ; Johnson v. Lowell, Ibid. 272 n. ^ Davis V. Bangor, supra ; Hixon v. Lowell, supra. ' Marble v. Worcester, 4 Gray, 395. 362 LAW OF HIGHWAYS. [CHAP. VX- true construction of the provisions of the statutes, towns are responsible only for the direct and imme- diate losses occasioned by defects in highways, which they are required to keep in safe and convenient con- dition for the public use.^ But, in another case, if a horse, by reason of a defective railing, going off a highway, falls upon a fence, and in being removed with reasonable care and skill suffers injury,^ or go- ing over a bank wall in safety, and immediately, while under the same impulse, slipped on the ice in the field, and fell, causing the injury,^ the town is liable if the accident was originally caused by a de- fect in the way. The application of the rule above stated, and of the doctrine stated in Davis v. Dudley, that the fact that the action of the horse, having be- come frightened and uncontrollable, precludes the plaintiff from proving himself in the exercise of due care, and is an efficient intervening cause ; to the case of an injury resulting from the running of a horse previously frightened beyond control by an ob- struction in the travelled path, which is a defect such as would render the town ordinarily responsible ; leads to the conclusion, that the town, in such case, will not be liable for injuries happening after passing the obstruction.* § 298. We have seen that the town is primarily liable for injuries occasioned by obstructions placed upon a highway by an individual. In such case, the town is entitled to be indemnified for the damages, which it has paid, by the author of the obstruction ; ' Jenks V. Wilbraham, 11 Gray, 142. = Tuttle V. Holyoke, 6 Gray, 447. ' Stevens v. Boxford, 10 Allen, 25. * Cook u, Cliarlestown, 13 Allen, 190 n.; Kingsbury v. Dedham, 13 Allen, 186. J CHAP. VI.] CASE FOB SPECIAL DAMAGE. 363 and, where several injuries result from the same obstruction, each successive recovery against the town constitutes a distinct claim for indemnity against the author of the obstruction, the town being en- titled in no case to recover probable damages beyond the specific damages assessed in the judgments against it.-^ But in Massachusetts, under a statute which provides double damages for injuries happening after reasonable notice to the town of the defect, the town is held entitled to recover to the amount of single damages only against the individual who caused the nuisance. This is the extent to which he would be liable to the party injured ; and the damages are held to be doubled by reason of the neglect of the town ; and although there be, in fact, no actual neg- ligence, yet, by reason of their constructive negligence, they alone are responsible for the increased amount of damages.^ Where the defect was occasioned by a cellar-way opening upon a sidewalk, it was held that the occupant of the building, and not the owner, was liable over to the town for the damages, unless there had been an express agreement between the landlord and tenant, that the former should keep the' premises in repair ; in which case, to avoid circuity of action, the landlord would be liable in the first in- stance.^ § 299. Where the duty of repair devolves upon individuals or private corporations, they are liable for injuries which result from any defect which might have been prevented by the exercise of or- '■ Newbury v. Conn, and Pass. Rivers Railroad Co. 25 Vt. 377. ^ Lowell u. Boston and Lowell Railroad Co. 23 Pick. 24 ; Lowell v. Short, 4 Cush. 275. " Lowell V. Spaulding, 4 Cush. 277. 364 LAW OP HIGHWAYS. [CHAP. TI. dinary care and diligence. And when their liability is regulated by statute, they, like towns, will be lia- ble for any injuries occasioned by a non-compliance with the requirements of the statute.^ Thus, it has been held, that where there is a failure on the part of a turnpike company to comply with an express requirement of the statute, either as to the width of the road or the mode of its construction, and a per- son travelling over it sustains an injury in conse- quence of such omission, the turnpike company is liable, unless it appears that the plaintiff could have avoided the injury by the exercise of ordinary care and prudence. In such a case there is no question involved of want of skill or care on the part of the company, but the omission to comply with the stat- utory requirement is a nuisance for which a party injured, without negligence on his part, may claim damages.^ § 300. From what has been already said, it is ob- vious, that the party injured by a nuisance in the highway has his option to proceed in this action, either against the town under the statute, or against the author of the nuisance ; and, if the author com- mit the same in the course of his employment, as the servant of another, either against him or his em- ployer. And, from the case of Bush v. Steinman, it would seem, that a person may be liable in this action for a nuisance committed by another, if com- mitted for his benefit, even though he is not his immediate employer, and exercises no authority over his actions. In that case, the plaintiff was in- ' Townsend v. Susquehannali Bridge Co. 6 Johns. 90. ^ Wilson V. Susquehannah Turnpike Koad Co. 21 Barb. 68 ; citing Harlow v. Humiston, 6 Cowen, 189 ; Dygert v. Schenk, 23 Wend. 446. CHAP. VI.] CASE FOR SPECIAL DAMAGE. 365 jured by a quantity of lime deposited in the high- road. The defendant, having purchased a house by the roadside (but which he had never occupied), contracted with a surveyor to put it in repair for a stipulated sum ; a carpenter having a contract un- der the surveyor to do the whole business, employed a bricklayer under him, and he again contracted for a quantity of lime with a lime-burner, by whose ser- vant the lime in question was laid in the road. The defendant was held to be liable. "Where a civil injury of the kind now complained of has been sustained," it was remarked, " the remedy ought to be obvious, and the person injured should have only to discover the owner of the house which was the occasion of the mischief; not be compelled to enter into the concerns between the owner and other persons, the inconvenience of which would be more heavily felt than any which can arise from a circuity of action." And Eooke, J. said : " He who has work going on for his own benefit, and on his own premises, must be civilly answerable for the acts of those whom he employs. It shall be inten- ded by the Court, that he has a control over all those persons who work on his premises, and he shall not be allowed to discharge himself from that intendment by any act or contract of his own. He ought to reserve such control, and, if he deprive himself of it, the law will not permit him to take advantage of that circumstance, in order to screen himself from an action." ^ I > Bush V. Steinman, 1 Bos. & Pul. 404, citing Michael v. Alestree, 2 Lev. 172; Stone v. Cartwright, 6 Term, 411 ; Littledale v. Lord Lons- dale, 2 H. Bl. 267 ; and see Bailey v. Mayor of New York, 3 Hill, 531 ; 2 Denio, 433 j Brackett v. Lubke, 4 Allen, 138. », 366 LAW OF HIGHWAYS. [chap. vn. CHAPTER VII. THE FEE m highways. The Rights of the Owner OF THE Fee. Presumptions from Adja- cent Ownership. Boundaries by Highways. 4. Actions by the Owner of the Fee. 5. Abandonment and Rever- sion. 1. 27ie Mights of the Owner of the Fee. § 301. At common law, as we have already had frequent occasion to remark, a highway is simply an easement or servitude, carrying with it, as its inci- dents, the right to use the soil for the purposes of repair and improvement, and, in cities, for the more general purposes of sewerage, the distribution of light and water, and the furtherance of public moral- ity, health, trade, and convenience. The owner of the land, over which the highway passes, retains the fee and all rights of property not incompatible with the public enjoyment, and, whenever the highway is abandoned or lost, recovers his original unencumbered dominion.-^ He may sell the land subject to the ease- • Roll. Abr. 392 ; Comyn's Dig. tit. Chimin. (A. 2) ; Lade v. Shep- hard, 2 Str. 1004; Goodtitle v. Alker, 1 Burr. 133; Gore u. West, 7 Taunt. 39 ; Cooke u. Green, 11 Price, 736 ; Doe d. Pring v. Pearsy, 7 B. & Cr. 304 ; Cro. Jac. 190; 4 Bacon's Abr. 668 ; Maynell v. Surtees, 31 Eng. Law &. Eq. 485 ; United States v. Harris, 1 Sumner, 21 ; Chat- ham V. Brainard, 11 Conn. 60; Harris v. Elliott, 10 Peters, 25; Howai'd V. Hutchinson, 1 Fairf. 335; Bingham v. Doane, 9 Ham. 165; Kennedy CHAP. VII.] THE EIGHTS OF THE OWNER OF THE FEE. 367 ment ; and a deed of a farm of land, " reserving only the highway through the said farm," conveys the land subject only to the easement.-^ § 302. « The owner of the soil," said Foster, J. in Goodtitle V. Alker,^ "has right to all above and under ground, except only the right of passage for the king and his people." And Mansfield, J. in the same case, quoting from KoUe's Abridgment, remarked, " That the king has nothing but the passage for him- self and his people ; but the freehold and all profits belong to the owner of the soil, so do all the trees upon it and mines under it, which may be extremely valuable. The owner may carry water in pipes un- der it. The owner may get his soil discharged of the servitude or easement of a way over it, by a writ of ad quod damnmn. It is like the property in a market or fair. There is no reason why he should not have a right to all remedies for the freehold; sub- ject still, indeed, to the servitude or easement. An assize would lie, if he should be disseised of it ; an action of trespass would lie for an injury done to it." So it was held, that the trustees of a turnpike road could not consent to the turning of a pubhc footpath V. Jones, 11 Ala. 63; Harrington v. County Commissioners of Berkshire, 22 Pick. 263; Barclay v. Howell's Lessee, 6 Peters, 498. In Buel v. Clark, 1 Boot, 49, the question was, whether lands left for a highway by the proprietors in the original laying out of their lots, that are not wanted for the use of a highway, belong to the proprietors of the town, and may be taken up by the proprietors, and laid out into lots ; or whether they belong to the town ; by Court and jury they belong to the proprietors ; and verdict and judgment was for the plaintiff to recover accordingly. Brown v. Freeman, lb. 118. ' Fairfield w. Williams, 4 Mass. 427 ; Whitbeck v. Cook, 15 Johns. 483 ; Peck V. Smith, 1 Conn. 103; Hart v. Chalker, 5 lb. 311. ^ Goodtitle V. Alker, 1 Burr. 133. 368 LAW OF HIGHWAYS. [CHAP. VII. into their highway, because, said Kenyon, C. J., " the soil was not vested in them, but remained in the persons who were entitled to it before the act passed by which they were appointed. The trustees have only the control of the highway." ^ In another case the plaintiff had declared generally for a trespass on his close called " Shepherd's Lane." 'The trespass proved was, that the defendant had depastured his cattle all along the lane, as well in the parts opposite to the plaintiff's close, as in other parts ; and a mo- tion was made to set aside the Verdict, because, at most, he was only entitled to the soil and freehold of half the lane opposite to his own enclosures ; but, per Curiam : " The plaintiff had an exclusive right to part of ' Shepherd's Lane ' ; and if the defendant meant to drive him to confine the trespass complained of upon the face of his declaration to that part of the lane which was his, he should have pleaded soil and freehold in another, which would have obliged the plaintiff to new assign." ^ § 303. The principles of the common law, in this respect, have been recognized and adopted by the American courts. The language of Parsons, C. J., in Perley v. Chandler,^ is an exact statement of these principles. " By the location of a way over the land of any person," said that learned jurist, " the public have acquired an easement, which the owner of the 1 Davison v. Gill, 1 East, 64. ' Steeveng v. Whistler, 11 East, 51 ; Doe d. Jackson v. 'Wilkinson, 3 B. & Cr. 413. ' Perley v. Chandler, 6 Mass. 454 ; Chamberlain v. Enfield, 43 N. H. 356 ; Holden u. Sliattuok, 34 Vt. 336 ; Hollenbeck v. Rowley, 8 Allen, 473; Jackson v. Hathaway, 15 Johns. 447; Palmer v. Silverthorne, 32 Penn. 65. CHAP. VII. J THE EIGHTS OF THE OWNER OF THE FEE. 369 land cannot lawfully extinguish or unreasonably in- terrupt. But the soil and freehold remain in the owner, although encumbered with a way. And every use to which the land may be applied, and all the profits which may be derived from it, consistently with the continuance of the easement, the owner can lawfully claim. He may maintain ejectment for the land thus encumbered ; and if the way be discon- tinued, he shall hold the land free from the encum- brance. Upon these principles there can be no doubt but that the owner of the land can sink a drain, or any watercourse, below the surface of his land cov- ered with a way, so as not to deprive the public of their easement. And it is a common practice for the owners of water-mills, or of sites for water-mills, to sink watercourses for the use of their mills in their own land under highways, care being taken to cover the watercourses sufficiently, so that the highways remain safe and convenient for passengers." " If a highway be located over watercourses, either natural or artificial, the public cannot shut up these courses, but may make the road over them by the aid of bi"idges. But when a way has been located over private land, if the owner should afterwards open a watercourse across the way, it will be his duty, at his own expense, to make and keep in repair a way over the watercourse, for the convenience of the public ; and if he should neglect to do it, he may be indicted for the nuisance ; and upon the conviction, the nuisance may be prostrated by filling up the water- course, if he shall not make a convenient way over it."-' So it has been held by the same Court, that ^ Woodring v. Forks Township, 28 Penn. St. 355. 24 370 LAW OF HIGHWAYS. [CHAP. VII. the herbage belongs exclusively to the owner of the soil, and he may maintain trespass against one who puts his cattle in the highway to graze. And it was said by Putnam, J., in delivering the opinion of the Court : " It is not lawful, therefore, for the public to put their cattle into the highway to graze. For wherever one would justify taking the property of another, in virtue of a license or of a way, he must plead and prove that he pursued the authority, or used the way as a way, and not for any other pur- pose.^ So in 22 Edw. IV. 8, pi. 24, it was said by one of the Court, that if one drive a herd of cattle along the highway, where trees, or wheat, or any other kind of corn is growing, if one of the beasts take a parcel of the corn, if it be against the will of the driver, he may justify ; for the law will intend that a man cannot govern them at all times as he would ; but if he permitted them or continued them, &c., then it is otherwise." ^ ' Dovaston v. Payne, 2 H. Bl. 527; Harrison u. Brown, 5 V7is. 27; Woodruff V. Neal, 28 Conn. 165 ; contra, Hardenburgh v. Lockwood, 25 Barb. 9. ^ Staokpole v. Healy, 16 Mass. 33 ; Cool v. Crommet, 1 Shep. 250. In Avery v. Maxwell, 4 N. H. 36, the same doctrine was announced. But in that case it was contended that the common law was in this re- spect altered by the statute of January 14, 1795, entitled " An act to prevent damage being done by horses, mules, and jacks," which prohibits horses and mules from going at large without being fettered with good and sufficient fetters, under a penalty. It was urged that as horses were by this law prohibited from going at large without fetters, it was by im- plication a license to permit them to go at large with fetters. But the Court were of the opinion, that, admitting the legislature had the power to authorize one man to turn his horse to graze upon the land of another, which was very questionable, still, it would be a forced and unnatural in- terpretation of this statute to construe it to give a license of that nature. Every man had a right to turn his horses into the highway to graze, where he owned tt'CO'l over which the highway was laid, and this stat- CHAP. VII.] THE RIGHTS OP THE OWNER OF THE FEE. 371 § 304. The law has, also, been well expressed by Piatt, J., iij delivering the opinion of the Supreme Court of New York, in Jackson v. Hathaway.-' " High- ways," he remarked, "are regarded in our law as easements. The public acquire no more than the right of way, with the powers and privileges inci- dent to that right ; such as digging the soil and using the 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 its bridges. When the sovereign imposes a public right of way upon the land of an individual, the title of the former owner is not extinguished ; but is so qualified that it can only be enjoyed subject to that easement. The former proprietor still retains his exclusive right in all mines, quarries, springs of water, timber and earth, for every purpose not in- compatible with the public right of way. The per- son in whom the fee of the road is, may maintain trespass, or ejectment, or waste. But when the sov- ereign chooses to discontinue or abandon the right of way, the entire and exclusive enjoyment reverts to the proprietor of the soil." Accordingly, it has been held, that the owner of the fee may maintain trespass against one who builds on the highway ;^ or who digs up and removes the soil ; ^ or cuts down trees or timber growing thereon ; and though a sur- ute was intended to regulate the exercise of that right, and not to give any new right. ' Jackson v. Hathaway, 15 Johns. 447. ^ Peck V. Smith, 1 Conn. 103 ; Costelyou v. Van Brundt, 2 Johns. 357. ' Gidney v. Earl, 12 Wend. 98; Willoughby v. Jenks, 20 lb. 96 ; Tucker v. Eldred, 6 K. I. 404. 372 LAW OF HIGHWAYS. [CHAP. VII. veyor may, as the agent of the town, cut such trees to be used in the repair of the way, or ija order to improve it ; yet, if he cuts them for his own use, he is a trespasser.^ So it has been held to be trespass for a ferry-man to land his passengers or boats, or for any other person to unlade or receive freight, at the terminus of a highway, without the consent of the owner of the soil.^ And a railroad company cannot lay their railroad on a highway, at least in the country, though authorized by their charter, without making compensation to the owner.^ A highway upon land is in its nature an encumbrance and a breach of a covenant, which stipulates that the land is free of encumbrances.* § 305. In Adams v. Kivers/ trespass was main- tained by the adjoining owner against a person who came upon the sidewalk, and there remained, using abusive language towards him, and refusing to depart. The language of the Court, per Willard, J., was as follows : " The defendant committed a trespass while standing on the sidewalk by the plaintiff's lot where he lived, and using towards him abusive language. While so engaged, he was not using the highway for the purpose for which it was designed, but was a trespasser. He stood there but about five minutes. It was not shown that he stopped on the sidewalk • Babcock v. Lamb, 1 Cowen, 238 ; Makepeace v. Worden, 1 N. H. 16 ; Tucker v. Eldred, 6 K. I. 404. ' Chambers v. Fury, 1 Yeates, 167; Cooper v. Smith, 9 Serg. & K. 31 ; Chess v. Manown, 3 Watts, 219. ' See ante, § 243, et seq. * Pritchard v. Atkinson, 3 N. H. 335 ; Kellogg v. IngersoU, 2 Mass. 97 ; Wilson v. Wilson, 2 Vt. 68. ^ Adams v. Rivers, 11 Barb. 390. But see O'Linda v. Lathrop, 21 Pick. 292. CHAP. VII.] THE RIGHTS OF THE OAVNER OF THE FEE. 373 for a justifiable cause ; on the contrary, it was ren- dered probable that it was for a base and wicked purpose. It was, therefore, a trespass. Suppose a strolling musician stops in front of a gentleman's house, and plays a tune or sings an obscene song un- der his window, can there be a doubt that he is liable in trespass ? The tendency of the act is to disturb the peace, to draw together a crowd, and to obstruct the street. It would be no justification that the act was done in a public street. The public have no need of the highway but to pass and repass. If it is used for any other purpose not justified by law, the owners of the adjoining land are remitted to the same rights they possessed before the highway was made. They can protect themselves against such annoyances by treating the intruders as trespassers." So an individual, who, without lawful authority from the town, reconstructs a highway, making it safe and convenient in parts not before actually travelled, is a trespasser.^ § 306. At common law, we have remarked that the owner of the fee is entitled to the herbage grow- ing in a highway ; and the question has been raised whether this right can be constitutionally taken away or qualified without compensation therefor. In New York, an act was passed empowering the electors of each town, at their annual town meeting, " to make rules and regulations for ascertaining the sufficiency of all fences in such town ; and for deter- mining the times and manner in which cattle, horses, or sheep shall be permitted to go at large on high- ways." In pursuance of this act, a resolution was ' Hunt V. Rich, 38 Me. 195 ; Kuggles v. Lesure, 24 Pick. 187. 374 LAW OF HIGHWAYS. [CHAP. VIL passed, at the town meeting of the town of Pierpont, in these words : " Voted, that all orderly neat cattle have a right to run at large from the 1st of May to the 1st of November in each year." And also another in these words : " Voted, that all fences shall be equal in strength to a good rail fence four and a half feet high." In an action of trespass, for the entry of cattle from the highway into the plaintiff's close, through fences which were proved to be insufficient, ■ the defendant justified under the act and resolutions above cited. For the plaintiff it was objected that the act and resolutions were in derogation of the clause in the constitution, which provides that private property shall not be taken for public use, without just compensation, and therefore void. But the ob- jection was overruled, and the act and resolutions were pronounced constitutional by the Supreme Court of that State.^ § 307. "The question," said Willard, J., in deliver- ing the opinion of the Court, " whether the act under consideration is in conformity to the constitution or not has never been distinctly passed upon by this Court, and I am not aware of any case in which it has been necessarily involved. We have dicta from highly respectable sources, adverse to the power, but accompanied with no examination of ovir recent leg- islation on the subject. Thus, in HoUaday v. Marsh,^ which arose before the revised statutes, Chief Justice Savage intimates a doubt whether it was competent for the legislature to authorize a town to permit domestic animals to depasture the highway. And 1 Griffin u. Martin, 7 Barb. 297. » IloUaday v. Marsh, 3 Wend. 142. CHAP. VII.] THE RIGHTS OF THE OWNER OF THE FEE. 375 he observes that the public have simply a right of passage over the highway, and have no right to depas- ture it. The owner of the land through which the road runs is still the owner of the soil and of the timber, except what is necessary to make and repair bridges ; and, he asks, if the owner of the soil owns the timber, why not the grass ? In Gidney v. Earl,'- it was held, that where a road runs through a man's close, prima facie, the fee of the land over which the road passes belongs to him. 'The law,' says Nel- son, J., ' will not presume a grant of a greater inter- est or estate than is essential to the enjoyment of the public easement ; the rest is parcel of the close.' In the Tonawanda Eailroad Co. v. Hunger,^ Beards- ley, C. J., expresses similar views, concluding with the opinion that the legislature ' do not possess the power in question, whether compensation be made or not, but certainly in no case unless compensation is made.' This opinion is not essential to the decision of the cause before him, as the action was for killing cattle, not on a public highway, but on a railroad where they were confessedly trespassers. In White V. Scott,^ McCoun, J., took occasion, incidentally, to remark, when speaking of a town ordinance similar to the one in this case, 'that the power of a town meeting cannot be lawfully exercised beyond allow- ing the owners of the soil to turn their own animals out to feed on such parts of the highway as they respectively own, under such safeguards, rules, and regulations as shall prevent any obstruction of the > Gidney v. Earl, 12 Wend. 98. ^ The Tonawanda Railroad Co. v. Munger, 5 Denio, 255, 264. " White V. Scott, 4 Barb. 56. 376 LAW OP HIGHWAYS. [CHAP. VH. public use or travel, and as shall at the same time avoid collisions and trespasses by the beasts of one owner upon the property of another.' And he further intimates, that a town ordinance, like the one in question, is void, as extending beyond the author- ity which the electors of the town in their collective capacity possess under the statute. The learned Judge does not consider the act of the legislature unconstitutional, but he gives a construction to it entirely novel, and which defeats the main object and policy of the law. Under his construction, the act does not empower the towns to pass ordinances allow- ing cattle, sheep, and horses to run at large on the highway, but merely to adopt regulations with re- spect to the time and manner in which the owner of the freehold may depasture the road which passes through his own close. He views the act as restric- tive of the right which might otherwise be enjoyed. He assumes, however, that the act would be uncon- stitutional, if it allowed the towns to treat the public highways, in any respect, as a common of pasture. Under this narrow construction of the act, none but the great landholders could derive any benefit from it. The poor tenants and other inhabitants, not owners of the soil, would be entirely excluded." § 308. "In none of these cases was the point we are considering necessarily involved or in fact decided by the Court. In all the cases in which the consti- tutionality of the act in question has been doubted, the reasons assigned have been, that the soil and grass growing on a highway belong to the owner of the land through which the road passes, and that the public have merely a right of passage ; and that CHAP. VII.] THE EIGHTS OF THE OWNER OF THE FEE. 377 the effect of the town by-law is to take the private property of the owner of the land, without compen- sation, for the use of those who permit their cattle to run at large on the highway. This was the ground taken in the cases just cited, and by Judge Cowen in his treatise and in the note before cited,^ and in all the adjudged cases to which we have been referred. Whatever may have been the force of this argument prior to the revised statutes, it is obvious that since the 1st of January, 1830, it is based upon a false assumption. It takes for granted that the owner of the land receives compensation merely for the ease- ment or right of passage. This is not so. The statute which regulates the compensation to be made to the owner through whose lands public highways are laid, does not confine the damages to what arises from parting with a mere right of way. By the 65th section of the act relative to highways, bridges, and ferries (2 R. S. 515), when the owner of the soil and the commissioners of highways cannot agree upon the damages, a jury composed of twelve disinterested freeholders, residing in some other town, are directed to be summoned ' to assess the damages sustained hy the laying out of such road.' These damages will depend on the quantity of interest which is vested in the public. It might be competent for the legis- lature to take the entire fee of the land ; in which case the compensation would be increased accord- ingly. It is presumed that the public become vested with such interest as the legislature authorize them to use. The existing law, if we consider, as we ' Cowen, on the Civil Jurisdiction of Justices of the Peace, p. 383, et seq. ; Bush v. Brainard, 1 Cowen, 78, and note 1. 378 LAW OF HIGHWAYS. I [CHAP. VII. should, the act relative to towns and the highway acts as part of an entire system, empowers the com- missioners not only to take the right of passage, but the right of permitting cattle, horses, and sheep to go at large on the highway, in such times and man- ner as the electors of the town in their annual town meeting shall determine. The damages of the owner of the soil are regulated by what he relinquishes to the public. He thus is compensated, not only for parting with the right of way, but for parting with the right of pasturage. Hence the main argument on which the objection to the law rests is untenable." § 309. " It cannot with truth be said, that a by- law, like the one in question, takes the property of one man and gives it to another, or even to the pub- lic, without compensation. The owner of the soil is not deprived of the pasturage, any more than he is of the way. He can enjoy both in common with his neighbors. In agricxiltural districts, and especially in new countries, the public benefit resulting from per- mitting cattle, horses, and sheep to run at large in highways, probably overbalances the increased ex- pense of acquiring a title to the road. The intrust- ing the power of regulating the exercise of this right to the electors of the town, in their annual town meeting, is in conformity to the analogy of our system of government, and will rarely ever lead to abuse. To no other persons could it more safely be confided. No danger is to be apprehended that towns will multiply highways for the purpose of ac- quiring common of pasture. The right of pasturage is a mere incident to the road, and the latter cannot, in general, be laid out without the consent of the CHAP. VII.] THE EiaHTS OF THE OWNER OF THE FEE. 379 owner of the soil, over which it passes, except on the certificate upon oath of twelve reputable freeholders of the town, not interested in the land nor of kin to the owner, that such road is necessary and proper. It is not to be presumed that these gentlemen will give a false certificate for the sake of an incidental advantage, for which their town must pay an equiv- alent. (1 E. S. 514, §§ 60, 61.) Moreover, the pub- lic have a guaranty against reckless and improvident applications of this kind, in the equitable and impar- tial remedy provided for making the assessment of the damages." (Id. § 65.)^ § 310. Turnpike roads, railroads and canals, like ordinary highways, are, as a general rule, simple easements, the fee remaining in the owner of the soil, and, upon their abandonment, reverting without further encumbrance. During the existence of such road or canal, the rights of the owner of the fee are subject to the same rule as in the case of ordinary highways.^ Thus it has been held, that trespass lies against the, servant of a turnpike company for cut- ting and removing thatch growing within the limits of the road, or against one for ploughing on the road, though, if done for the repair of the road, that is a good defence.^ A turnpike company have, however, ' Ante, § 303, and note; Wells v. Howell, 19 Johns. 385. ' Davison v. Gill, 1 East, 69 ; Kex v. Mersey Navigation, 9 B. & C. 95 ; Rex v. Thomas, lb. 114 ; Tippets v. Walker, 4 Mass. 595 ; Fisher v. Coyle, 3 Watts, 407; Bridge Turnpike Co. v. Stoever, 2 W. & Serg. 548 ; Parker v. The Inhabitants of Framingham, 8 Met. 260 ; Worcester V. Western Railroad Co. 4 Met. 564 ; Haswell v. Vermont Central Rail- road Co. 23 Vt. 228 ; Hooker v. Utioa and Minden Turnpike Road Co. 12 Wend. 371, and the cases annexed ; The State v. Hampton, 2 N. H. 25 ; State v. New Boston, 9 lb. 410. ' Adams v. Emerson, 6 Pick. 57; Robbins v. Borman, 1 lb. 122. But see Prather v. Ellison, 10 Ohio, 396. 380 LAW OF HIGHWAYS. [CHAP. VII. the right to erect and maintain a toll-house within the limits of their road, provided it does not incom- mode the public travel. They have not only a right to use the surface of the land for the purpose of travel, but may make such use of the land below the surface as may be necessary to secure and maintain the proper enjoyment of their franchise ; posts may be sunk in the earth for the gate to swing upon ; the soil may be excavated to drain the road. "And," adds Parker, C. J., " we are of the opinion, also, that a toll-house may be placed there, and that, if con- venient, this may be made so as to accommodate the toll-gatherer with a dwelling-house ; and that all things necessary for this may be also lawfully done ; such as the cutting down the trees, digging a cellar, well, &c., under the restriction before mentioned, that the public highway be not too much straitened." ^ But the company cannot, by implication, have a right to build toll-houses beyond the limits of their road.^ § 311. But though the interest of the public in highways, and of incorporated companies in turn- pike roads, railroads and canals, is generally limited to a mere easement, there is nothing to prevent the appropriation, if necessary, of the fee of the sqil. This, though not without much doubt and contrary decision, seems now to be the established law in the United States. In The People v. White,^ the right is denied. The land in that case had been taken for the construction of a canal, in pursuance of a statute, providing that the fee-simple thereof should ' Tucker v. Tower, 9 Pick. 109; Bridge Turnpike Co. v. Stoever, supra. ^ Thompson v. Proprietors of Androscoggin Bridge, 5 Greenl. 62. ' The People v. White, 11 Barb. 26. CHAP. VII.] THE EIGHTS OF THE OWNER OP THE FEE. 381 be vested in the people of the State. The land was afterwards abandoned, and the canal located in a different place. " If," reasoned the Court, " the State might retain the land thus compulsorily taken, after it had been abandoned for the purpose of a canal it might sell it to some other private citizen.' This, in effect would be taking the property of one citizen and transferring it to another, which, if not a violation of the letter, would be of the spirit, of the constitution ; for the constitution, by authorizing the appropriation of private property to public use, impliedly prohibited its appropriation to any private use. But in Hayward v. The Mayor of New York,^ the preceding case, though neither cited nor alluded to, was in substance overruled. This was the case of land taken under a statute for an almshouse, and the fee simple absolute vested in the corporation of the city of New York. Twenty-six years after the appropriation, it was abandoned for the purpose of an almshouse, and sold. The representatives of the original owner claimed a resulting use of the land, and denied the right of the city to the pro- ceeds of the sale. More land, it was argued, can- not be taken for the public use than is declared necessary, and is actually applied to it.^ It results, that a fee cannot be taken when an easement or an estate for years or for a limited time will suffice. There is no difference between taking more land and taking a larger estate than necessary.^ The ' Hayward v. The Mayor of New York, 3 Selden, 214, Court of Ap- peals ; 8 Barb. 486. ' In the Matter of Albany Street, 11 Wend. 150, 151 ; In the Matter of Cherry Street, 19 lb. 667. ' Benlow v. Townsend, 1 Mylne & K. 506. When before the Supreme 382 LAW OF HIGHWAYS. [CHAP. VII. principle is exemplified in the case of highways, which are easements ; ^ of turnpikes, a fee limited to a use ; ^ of railroads ; ^ of public dams and canals ; * of sites for forts, temporary possessions during war.^ But the Court were of the opinion that, as incident to the right of eminent domain, the State has the power to • determine, not only that lands shall be taken, but also the quantity of interest which shall be taken ; whether an estate for years, for life, or in fee ; whether a right of reversion shall be left in the owner, or whether a mere easement shall be taken without divesting the fee and general ownership of the land. Such a power is necessary to secure the useful exercise and enjoyment of the right of emi- nent domain. One case might require but a tem- porary use ; another case might require the perma- nent and apparently perpetual occupation, and enjoyment of the property by the public. The right to take must be coextensive with the necessi- ty of the case, and the measure of compensation should, of course, be graduated by the nature and Court, the case was said to be distinguishable from that of a turnpike, inasmuch as a turnpike company is bound, as a condition of its existence, to continue the road for the pubhc use, and when it ceases to be a com- pany, the title must, ex necessitate, vest in some one else, and it would seem reasonable that it should revert to the original owner. The Court of Appeals, however, do not indorse this distinction, but sustain the claim of the city, as will be seen, upon principles applicable alike to every species of appropriation. ' Jackson v. Hathaway, 15 Johns. 447 ; United States v. Harris, 1 Sumner, 1 ; per Edmunds, J., in Peck v. Smith, 1 Conn. 125. " Estes V. Kelsey, 8 Wend. 555; Hooker v. Utica Turnpike Co. 12 Ibid. 371. ' Beekman v. Saratoga Railroad Co. 3 Paige, 46, 64, 76. * Variok v. Smith, 5 Paige, 146 ; 4 Law Reporter (N. S.) 177. ' Van Home's Lessee v. Dorrance, 2 Dallas, 311. CHAP. VII.] THE EIGHTS OF THE OWNER OF THE FEB. 383 duration of the estate or interest of which the owner is deprived. To hold otherwise would be to pay the owner in full for his lands, and also to allow him to reclaim them, greatly enhanced in value, perhaps, by improvements placed upon them by the public.^ § 312. The rights, which this ownership of the fee, where it exists, gives, are subject in practice to endless modifications, depending upon the exigencies of the public and the location of the highway. The more ancient decisions limited the rights of the public to that of passage and repassage, and treated any interference of the soil, other than was necessary to the enjoyment of this right, as a tres- pass. But the modern decisions have very much extended the public right, and, particularly in the streets of populous cities, have reduced the interest of the owner of the soil to a mere naked fee of only a nominal value.^ " These streets," says Ed- wards, P. J., speaking of the streets of New York city, and announcing what seems to be the modern doctrine in regard to the streets of a city, " for many years, having been used for the construction of sewers, and for the laying of water and gas-pipes; and no one has ever seriously questioned the right ' Affirmed in Rexford v. Knight, 1 Kernan, 308 ; 15 Barb. 627, which was the case of a canal ; and see The Commonwealth v. Christian Fisher, 1 Penrose & W^. 462 ; case of Philadelphia and Trenton Railroad, 6 W^hart. 25, 44 ; Railroad v. Davis, 2 Dev. & Batt. 451 ; Bonaparte v. Cam- den and Amboy Railroad Co. 1 Baldwin, 206. In the latter case, it was said, if the soil be talcen by the sovereign power of the State, without the owner's conveyance, it would revert upon the discontinuance of the road ; because the power of the State is only to take land for public pur- poses. Hunger u. Tonawanda Railroad Co. 4 Comst. 349. ^ Ante, § 241 et seq. ; Haight v. City of Keokuk, 4 Iowa, 199. 384 LAW OP HIGHWAYS. [CHAP. YII. of the city to authorize their use for such purposes, and no adjoining owner, as far as I am aware, ever pretended to claim compensation for such use. These urban servitudes, as they have been called, are the necessary incidents of a street in a large city ; and whether the streets be laid out and opened upon property belonging to the corporation, or whether they became public streets by dedica- tion, or by grant, or upon compensation being made to the owner of the fee, they have all the incidents attached to them which are necessary to their full enjoyment as streets. It is an elementary principle of the law, that where a power, right, or thing is granted, either to a natural or an artificial person, all the incidents are granted which are necessary to the enjoyment of the power, right, or thing. And whether the corporation be the owner of the fee of the streets in trust for the public, or whether it be merely the trustee of the streets and highways as such, irrespective of any title to the soil, it has the power to authorize their appropriation to all such uses as are conducive to the public good, and do not interfere with their complete and unre- stricted use as highways ; and, in doing so, it is not obliged to confine itself to such uses as have already been permitted. As civilization advances, new uses may be found expedient. It was upon this principle that the existing railways in this city and in Albany, and the tunnels in the city of Brooklyn and in the village of Whitehall, have been sanctioned." ■^ ' Milhau V. Sharp, 15 Barb. 210; West y. Bancroft, 32 Vt. 367 ; Kel sey V. King, 32 Barb. 410; Cone v. Hartford, 28 Conn. 363; Fisher v. Harrisburg, 2 Grant's Cases (Penn.) 324. A power to construct sewers and drains given by statute to municipal corporations, does not impose an CHAP. VII.] PRESUMPTIONS FROM ADJACENT OWNERSHIP. 385 2. Presumptions from Adjacent Ownership). § 313. Where the land, bounding on the opposite sides of a highway, belongs to the same person, the presumption is, that he owns the fee of the entire highway ; where it belongs to different persons, the presumption is, that each owns to the centre of the way, — ad medium filum vim} And so of the waste land on each side of the way, unless, indeed, it com- municate with other larger wastes belonging to the lord of the manor.^ The presumption, however, is not artificial and of positive institution, but is founded on the supposition that the way was orig- inally granted by the adjoining proprietors in equal proportions, and may be rebutted by proof of the contrary. Where, therefore, an adjoining owner enclosed a portion of the highway, which he contin- ued to cultivate, so enclosed, for twenty-eight years, it was held, that even on the supposition that the public easement was thereby discharged, the line of separation between the opposite proprietors re- mained, as it was, previous to the enclosure, the obligation to exercise it. Carr v. Northern Liberties, 35 Penn. St. 324. But a municipal corporation is liable if its sewers are negligently con- structed. Montgomery v. Gilmer, 33 Ala. 116. Where a turnpike road is constructed within the limits of an incorporated city, the city, by its charter, has jurisdiction over it for the purpose of grading, paving, and regulating, not, however, in such manner as to interfere with or injure the rights of the turnpike company under their charter. State v. New Brunswick, 1 Vroom, 39.5. ' Stevens v. Whistler, I East, 51; Cooke o. Green, 11 Price, 736; Witter ('. Harvey, 1 McCord, 67; Willoughby w. Jenks, 20 \Vend. 96 ; Bingham v. Doane, 9 Ham. 165 ; 3 Kent, Comm. (5th ed.) p. 432 ; Copp V. Neal, 7. 2 Steele v. Prickett, 2 Stark. 463 ; Doe v. Pearsey, 7 B. & C. 304 ; Grose v. West, 7 Taunt. 39 ; Barrett v. Kemp, 7 Bing. 332 ; Scoones v. Monell, 1 Beav. 251. 25 386 LAW OF HIGHWAYS. [CHAP. VII. centre of the original highway.^ In Headlam v. Headley/ the plaintiff, as adjoining proprietor, claimed a slip of greensward, across which extended a highway, whose width, including the greensward, was about sixty or seventy yards. It appeared that this greensward had been generally treated as waste land, and as a portion of a neighboring common, to which on one extremity it adjoined, and that it had been used as a common for cattle for a long space of time, by persons in the next village. There was no evidence that the plaintiff had exer- cised any acts of ownership over it ; but he rested his claim upon the general presumption of law. It was said by Bayley, J. : " It is difficult in many cases to discover the origin of roads. They are some- times made over waste or common lands, in which case, the rights of the soil, subject to the public easement, are in the lord of the manor. In other cases, they are allotted by the owners of adjoining lands, and then the property in the soil continues in such owners, subject to the rights of passage. I think the presumption of the private rights of the plaintiff are negatived by the circumstances of this case, so far at least as to make it incumbent on him to adduce some evidence of property, or act of ownership, from which property may be inferred. In the absence of such evidence, I shall direct the jury to presume the locus in quo to be common land or waste." In Illinois, where by statute the record- ing by the proprietors of a plat of land, laid out into ' Watrous v. Southworth, 5 Conn. 305 ; Peek v. Smith, 1 Conn. 127 ; Rex V. Edmonton, 1 M. & Rob. 124 ; Rex v. Hatfield, 4 Ad. & El. 164 ; Poole V. Huskisson, 11 Mees. & W. 827. ^ Headlam v. Headley, Holt, 463. CHAP. VII.] BOUNDARIES BY HIGHWAYS. 387 town or city lots, intersected by streets, passes the fee in the streets to the corporation, it has been held, that the purchasers of a lot designated upon such a plat, only acquires a title to the land included within the actual limits of the lot as designated. He takes no interest in the street, except in common with the public, and cannot claim title to the centre of it.i 3. Boundaries by Highways. §314. "The established inference of law," says Chancellor Kent,^ "is that a conveyance of land bounded on a public highway carries with it the fee to the centre of the road as part and parcel of the grant. The idea of an intention in a grantor to withhold his interest in a road to the middle of it, after parting with all his right and title to the ad- joining land, is never to be presumed. It would be contrary to universal practice ; and it was said in Peck V. Smith, that there was no instance where the fee of a highway, as distinct from the adjoining land, was ever retained by the vendor. It would require an express declaration, or something equivalent thereto, to sustain such an inference ; and it may be considered as the general rule, that a grant of land bounded upon a highway or river, carries the fee in the highway or river to the centre of it, provided the grantor at the time owned to the centre, and there be no words or specific description to show a contrary intent." The soil under the highway, if it passes at all, passes as parcel of the land, and not as an appurtenant.^ Therefore, whether the soil • Canal Trustees v. Havens, 11 HI. 554. 2 3 Kent, Comm. (5th ed.) p. 433. = Parker v. The Inhabitants of Framingham, 8 Met. 266 ; United States 388 LAW OF HIGHWAYS. [CHAP. VII. passes or not is purely a question of intention, to be ascertained in each particular case from the de- scriptions contained in the deed, explained and illus- trated by all the other parts of the conveyance, and by the localities and subject-matter to which it applies.^ § 315. It may be stated, as the fair conclusion from the authorities, that a grant of land, described as bounded generally " by," or " on," or " along " a highway, carries the fee to the centre of the highway, if the grantor owned so far ; ^ and, on the other hand, where the descriptive words are " by the side of," " by the margin of," or, " by the line of," or expressions equivalent thereto, the soil of the way is excluded.^ This rule, however, has not uniformly prevailed. In Massachusetts, for in- stance, the Courts have more generally favored a construction which excludes the way. Thus, in Sibley v. Holden,* where the description was, " be- V. Harris, 1 Sumner, 21 ; Webber v. Eastern Eailroad Co. 2 Met. 147 ; Witter «;. Harvey, 1 McCord, 67; Hollenback v. Rowley, 8 Allen, 473. In Ohio, City of Cincinnati u. Newell, 7 Ohio (N. S.), 37, an excep- tion or reservation in the deed of a street for the use of the public is not a reservation of the fee to the grantor, but the grantee has the fee sub- ject to the right of way. ' Webber v. The Eastern Railroad Co. 2 Met. 151 ; Bradford v. Casey, 45 Me. 9. ' Bucknam v. Bucknam, 3 Fairf. 463 ; Johnson v. Anderson, 6 Shep. 76; Peck 1). Smith, 1 Conn. 103; Chatham v. Brainard, 11 Conn. 103; Styles V. Curtis, 4 Day, 228 ; Reed v. Leeds, 19 Conn. 182 ; Reed's Pe- tition, 13 N. H. 381; Hunt v. Rich, 38 Me. 195; lb. 309; Winter v. Peterson, 4 Zabris. 524 ; Paul v. Carver, 26 Penn. 223 ; Morrow v. Wil- lard, 30 Vt. 118 ; Phillips v. Bowers, 7 Gray, 21 ; Marsh v. Burt, 34 Vt. 289. " Hughes V. The Providence and Worcester Railroad Co. 2 R. I. 508 ; Jackson v. Hathaway, 15 Johns. 447; Jones u. Cowman, 2 Sandf. 234; Child V. Starr, 4 Hill, 369 ; Union Burial Ground v. Robinson, 5 Whart. 18; Noble v. Cunningham, 1 McMuUin, 289. * Sibley v. Holden, 10 Pick. 249. CHAP. Vn.] BOUNDARIES BY HIGHWAYS. 389 ginning at a stake and stones on the southerly side of a town-road;\ and, after giving other bounda- ries, returning « to said road ; thence by said road easterly to the place of beginning " ; the Court were of the opinion, that the boundary first given, must be taken to be the side of the road, and so of the returning boundary, otherwise the line would be diagonal, neither by the side nor by the centre, and repugnant to the last clause, '' by said road to the place of beginning." In Tyler v. Hammond,^ a small lot of land was described as bounded " north- westerly on Ann Street," &c., the courses and dis- tances being given in feet and inches. " This," said the Court, "is a very particular description of the land intended to be conveyed, in respect to which there can be no doubt or uncertainty. The lines are short, and were measured, no doubt, with great exactness, and, therefore, a mistake in the side-lines of twenty, or thirty feet cannot be supposed ; and, besides, I do not understand that any error appears by reference to the boundaries, at least not so as to affect the present question." The highway was held to be excluded. In O'Linda v. Lothrop,^ where two parcels of land, lying on opposite sides of a narrow strip, designed for a street, were described in the grant as bounded, the one south on a " street," and the other north " on an intended street," it was held, that the fee of the narrow strip did not pass. And in Parker v. The Inhabitants of Framingham,^ a ' Tyler v. Hammond, 11 Pick. 193. " O'Linda v. Lothrop, 21 Pick. 292. ' Parker v. The Inhabitants of Framingham, 8 Met. 260 ; and see Webber v. Eastern Railroad Co. 2 Met. 151 ; Clap v. M'Neil, 4 Mass. 589 ; Alden v. Murdock, 13 Mass. 256. 390 LAW OP HIGHWAYS. [CHAP. VII. grant of land, " bounded by the Worcester turnpike road," was held not to pass the fee to the centre of the road, for the reason that the grantor was strong- ly interested in not putting it in the power of the grantee to shut up the road in case the turnpike was discontinued. In the more recent cases in Mas- sachusetts, however, it is held that a boundary gen- erally by the highway, with no words controlling or limiting, conveys the title to the middle of the high- way, if the grantor owns so far ; and the rule adopt- ed in other States, and in the English cases stated above, is established as the law in Massachusetts.^ § 316. In New York, the rule, as laid down by Oakley, J., in Herring v. Fisher,^ is, that where a deed or grant of land is bounded on a highway, or runs along a highway, or when the boundary lines run to a highway, it conveys the land to the ' Newhall v. Ireson, 8 Cush. 698 ; Phillips v. Bowers, 7 Gray, 24 ; Fisher u. Smith, 9 Gray, 444 ; City of Boston v. Richardson, 13 Allen, 146, and cases cited. In this case, upon a full examination and discussion of authorities, in construing the phrase " bounded with the street," the gen- eral rule of construction is stated thus : " Whenever land is described as bounded by other land, or by a building or structure, the name of which, according to its legal and ordinary meaning, includes the title in the land of which it has been made a part, — ^ as a house, a mill, a wharf, or the like, • — the side of the land or structure referred to as a boundary is the limit of the grant; but when the boundary-line is simply by an object, the name of which is used in ordinary speech as defining a boundary, and not as describing a title in fee, and which does not in its description or nature include the earth as far down as the grantor owns, and yet which has width, — as in the case of a way, a river, a ditch, a fence, a tree, or a stake and stones, —then the centre of the thing so running over or standing on the land is the boundary of the lot granted." And the earlier decisions of Massachusetts, in which a conflicting rule of interpretation is followed, are overruled. '^ Herring v. Fisher, 1 Sandf. 334, 348 ; Hammond v. McLaohlan ; The Same v. Peugnet, lb. 323; Adams v. Saratoga and Washington Railroad Co. 11 Barb. 416 ; Adams v. Rivers, lb. 390. CHAP. VII.] BOUNDARIES BY HIGHWAYS. 391 centre of the road, if there be no words or specific description to show the contrary ; and such words or specific description must be of a very decided and controlUng character. And in that case, the boundary, described as running along a road, was held to run through the centre thereof, notwithstand- ing a map or plat referred to represented the bound- ary as the external line of the road. Where, how- ever, the boundary is expressly by the side of the road, the highway will be held to be excluded.^ In "Warner v. Southworth,^ where land was granted, bounded by an artificial ditch and enbankment, the Court of Errors of Connecticut, in analogy to the rule under discussion, held, that the grant extended to the middle of the ditch. And Judge Daggett, in delivering the opinion of the Court in that case, said : " Doubtless, had the bounding line been a stone wall, six feet in width at the bottom, the grant would have extended to the centre of it." So it has been held, that though there be no mention of the highway, yet if the land be in fact bounded thereon, the construction is the same, carrying the grant to the centre.^ § 317. In the State of New York, there is a class of cases, originating in appeals from assess- ments of damages for land appropriated as streets in the city of New York, in which a construction somewhat novel, if not peculiar to that city, has been adopted. The owner of city land, it has been held in these cases, which is platted into lots and in- • Ante, § 314, note ; Smith v. Slocomb, 9 Gray, 36. * ^ Warner u. South worth, 6 Conn. 471. * Champlia v. Pendleton, 13 Conn. 23. 392 LAW OP HIGHWAYS. [CHAP. Til. tersected by streets, when he sells the lots bound- ing them on the streets, does not thereby part with the fee in the streets, but still retains the same, subject, however, to an implied right of pas- sage in the purchasers of the adjacent lots, by vir- tue of which he is estopped from ever closing up the streets.^ But in Hammond v. McLachlan,^ the Court entirely repudiates this doctrine, and refuses to recognize any distinction between grants of land bounded on highways in the city and in the coun- try. " We have looked into the cases," says Oak- ley, C. J., delivering the opinion of the Superior Court of the city of New York, "all of which arose on applications to the Supreme Court, to set aside or to confirm assessments, or awards for damages on opening streets; and the question mooted has always been, whether the grantor of lots bounded on the streets, was entitled to remun- eration for his interest in the ground taken for the street. The first case was that of Mercer Street, and there it was held, that the grantor was enti- tled to have awarded to him the full value of the ground so taken for the street. The Supreme Court soon began to recede from that position, and afterwards overturned it entirely, and finally held, that such owner was only entitled to a mere nomi- nal allowance, and awarded nothing to him, or a • Mercer Street, 4 Cowen, 442 ; Seventeentlt Street, 1 Wend. 262 ; Lewis Street, 2 lb. 472; Livingston v. Mayor, &c. of New York, 8 lb. 85; Wyman v. The Same, 11 lb. 487; Furman Street, 17 lb. 650; Thirty-second Street, 19 lb. 128 ; Twenty-ninth Street, 1 Hill, 189 ; and see New Orleans*!). United States, 10 Peters, 663 ; O'Linda v. Lothrop, 21 Pick. 292; White v. Hanigan, 1 Magruder, 540. " Hammond v. McLaohlan, 1 Sandf. 323, 342. CHAP. VII.] BOUNDARIES BY HIGHWAYS. 393 nominal sum. In these cases, the Court incidental- ly speaks of the fee of the ground in the street re- maining in the grantor when he conveys lots bound- ed on the street ; but in no one is it distinctly decided, as between grantor and grantee, that the former retains any title to the land within the lines of the street. And, we conclude, there is noth- ing in these street cases which amounts to an au- thority for establishing such a distinction as that claimed by the plaintiffs. We see no reason for holding a different construction in respect of these deeds, from that which prevails in regard to deeds of land in the country. The reasons for that con- struction in country deeds were based upon princi- ples of great public convenience, which forbade that one should be the owner of the land, and another of a road or stream running through it. The practical inconveniences of a contrary rule have led to this construction uniformly, unless where it expressly ap- pears that the parties intended the contrary." Yet, it would seem, that in grants of city lands, where there are nice measurements and small and exact quantities, which are more definite in respect of in- tent ; then, by clear inference, the soil of the street may be excluded.'^ § 318. The law, with respect to public highways, and to fresh-water rivers, is the same, and the anal- ogy perfect as concerns the right of soil, and the presumptions from grants of land bounded thereon.^ Such grants carry the grantee to the middle of the ' The Union Burial Ground v. Robinson, 5 Whart. 21 ; and see Tyler V. Hammond, supra. 2 Ante, § 54, el seq. ; Jones v. Pettibone, 2 Wis. 308. 394 LAW OF HIGHWAYS. [CHAP. VH. river, unless there are expressions in the terms of the grants, or something in the terms taken in con- nection with the situation and condition of the land granted, that clearly indicate an intention to stop at the edge or margin of the river. There must be a reservation or restriction, express or necessarily implied, which controls the operation of the general presumption, and makes the particular grant an exception.-^ In the elaborateily considered case of Child V. Starr,^ in the Court for the Correction of Errors in New York, it was held, that lines running to a monument standing on the bank, and from thence running by the river or along the reiver, &c., do not restrict the grant to the bank of the stream ; for the monuments in such cases are only referred to as giving the lines to the river, and not as re- stricting the boundary on the river.^ If the grantor, ' Per Nelson, J., in Howard e< al. v. IngersoU, 13 How. 421. " Child V. Starr, 4 Hill, 469, overruling Starr v. Child, 20 Wend. 149 ; Harlow v. Fisk, 12 Cush. 302. ' Ex parte Jennings, 6 Cowen, 518, and the elaborate note of the re- porter, p. 536; Claremont v. Carlton, 2 N. H. 371 ; Hayes y.. Bowman, 1 Randolph, 420; OrendorfF ii. Steele, 2 Barb. 126; Lunt u. Holland, 14 Mass. 151 ; Budd !;.*!Burke, 3 Gill. 198; Luce v. Charley, 24 Wend. 451 ; Jackson v. Low, 12 Johns. 252 ; Hooper u. Cummings, 20 lb. 91 ; Arnold v. Mundy, 1 Halst. 1 ; Morrison v. Keen, 3 Greenl. 474 ; King v. King, 7 Mass. 496 ; Ex parte Ipswich, 13 Pick. 431; B.ix v. Johnson, 5 N. H. 520; The State v. Gilmanton, 9 lb. 461 ; Boscawen v. Canterbury, 3 Foster, 188 ; Canal Trustees v. Haven, 5 111. 548 ; Norris v. Hill, 1 Mann, 202 ; McCuUough v. Hall, 4 Rich. 68 ; The Canal Appraisers v. The People, 19 Wend. 571; Lowell v. Robinson, 4 Shep. 357. The Jitum aqucB is ascertained by measurement across from ordinary low-water mark on one side, to the same on the other side, without regard to the channel or depth of water. McCuUough v. Hall, 4 Rich. 68. But land bounded on a lake or large pond, extends only to the margin. Hathem V. Stlnson, 1 Fairf 183 ; Bradley v. Rice, 1 Shep. 198 ; AVood v. Kelley, 30 Me. 47 ; lb. 370; Canal Commissioners v. The People, 5 Wend. 423. Otherwise in Vermont. Fletcher v. Phelps, 28 Vt. 257 ; Phinney v. Watts, 9 Gray, 269. CHAP. VII.] BOUND AEIES BY HIGHWAYS. 395 however, after giving the hne to the river, bounds his land by the " bank," or upon the " margin," or describes the line as running along the bank or mar- gin, he shows that he does not mean to consider the whole alveus a mere mathematical line, so as to carry this grant to the centre. And the con- struction is the same where the boundary is by the shore of the river.^ In Dunlop v. Stetson,^ a bound- ary described as running " upon the bank at high- water mark " was held by Story, J., to exclude the flats between high and low water mark, although, by a colonial ordinance, recognized as law, grants bounded generally upon tide-waters, carried the grantee to low-water mark. And by the Supreme Court of the United States, in a cession of lands from Georgia to the United States, one boundary of which was described as " beginning on the east- ern bank of the Chattahoochee River, running thence up the said Chattahoochee River, and alo7iff the western bank thereof," it was held, that the entire ' Storeru. Freeman, 6 Mass. 435; Hatch v. Dwight, 17 lb. 298 ; Niok- erson v. Crawford, 4 Shep. 245 ; Lapish v. Bail^or Bank, 8 Greenl. 85 ; Greenleaf v. Kelton, 1 N. H. 531 ; Thomas v. Hatch, 3 Sumner, 170; Hopkins v. Kent, 9 Ham. 13. In Pennsylvania, North Carolina, and Alabama, the great navigable rivers obey the law of tide-waters; the title of the riparian owner goes to low-water mark ; beyond that the soQ belongs to the Commonwealth, and the stream is a common fishery and a highway. Carsen v. Blazer, 2 Binney, 475; Shunk v. The Schuylkill Navigation Co. 14 Serg. & K. 71 ; Wilson v. Forbes, 2 Dev. 30 ; Bullock V. V^ilson, 2 Port. 436 ; 2 Smith's Lead. Cases, 148. " Bounded by the beach " does not include land between high and low water mark. Niles V. Patch, 13 Gray, 254. " By the sea or beach," includes land between high and low water mark. Doane v. V7illcutt, 5 Gray, 327. Flats are not included in description bounding on a salt-water " creek betwixt said land and land of A. B." Chapman v. Edwards, 3 Allen, 512. ^ Dunlop V. Stetson, 4 Mason, 349. 396 LAW OF HIGHWAYS. [CHAP. VII. river was excluded from the cession.^ Indeed, it may be stated generally, that vphen the boundary given in a deed has physical extent, as a road, lane, street, fence, creek, or river, the grantee takes to the centre of the object so given, unless by some specific limitation of the grant the object is ex- cluded. 4. Actions hy the Owner of the Fee. § 319. It is now perfectly well settled, that the owner of the fee is entitled to protect his rights in the soil by every species of action and remedy which would be open to him if his land were disencum- bered of the way. In Goodtitle v. Alker,^ which was ejectment for land subject to a highway, it was urged hy the defendant, that in a case at the Summer Assizes at Exeter, it had been held by Lord Hard- wicke, " that no possession could be delivered of the soil of the highway ; and, therefore, no ejectment would lie of it ; and if it was a nuisance, the defend- ant might be indicted." But Lord Mansfield, putting this case out of the way entirely, as being so loosely remembered and imperfectly reported as to deserve no regard, nor be at all clear and intelligible, said : " There is no reason why the plaintiff should not have aright to all remedies for the freehold; sub- ject still, indeed, to the servitude or easement. An assize would lie, if he should be disseised of it ; an action of trespass would lie for an injury done to it." " I see no ground why the owner of the soil may not bring ejectment, as well as trespass. It would be ' Howard et al. v. Ingersoll, 13 How. 381. ' Goodtitle v. Alker, 1 Burr. 133. CHAP. A^I.] ACTIONS BY THE OWNER OF THE FEE. 397 very inconvenient to say that in this case he should have no specific legal remedy ; and that his only relief should be repeated actions of damages, for trees and mines, sali>springs and other profits under ground. 'T is true, indeed, that he must recover the land sub- ject to the way ; but surely he ought to have a specific remedy, to recover the land itself, notwithstanding its being subject to an easement upon it." The point thus decided has been repeatedly reaffirmed in sub- sequent decisions.^ The correctness of Lord Mans- field's decision has, however, been questioned by no less an authority than the Supreme Court of the United States, and upon the very grounds which in that case were urged and overruled. The opinion in the case referred to was delivered by Thompson, J. After alluding to the fact, that this doctrine of Lord Mansfield had crept into most of our elementary treatises, and been incidentally sanctioned by Judges, though never, to his knowledge, adopted in any case where it was the direct point in judgment, while it had been repudiated by the Supreme Court of Errors of Connecticut, he goes on to say, that the action cannot be sustained on principle, because the recov- ery of actual possession by the plaintiff would be wholly inconsistent with the admitted public right. " That right," he says, " consists in the uninterrupted ' Cooper V. Smith, 9 Serg. & K. 26 ; Alden v. Murdock, 13 Mass. 256 ; Boiling V. Mayor, &c. of Petersburg, 3 Rand. 563 ; Thompson et al. v. Proprietors of Androscoggin Bridge, 2 Greenl. 62; 2 Selw. 728; 1 Saund. PI. and Ev. 447 ; Dicta, per Sedgwick, J., in Commonwealth v. Peters, 2 Mass. 125; per Putnam, C. J., in Stackpole v. Healey, 16 lb. 33 ; per Parsons, C. J., in Perley v. Chandler, 6 lb. 454 ; per Piatt, J., in Jackson v. Hathaway, 15 Johns. 447; 2 Smith's Leading Cases (44 Law Lib.), 141 ; Dunham v. Williams, 36 Barb. 136 ; Dubuque v. Malony, 9 Iowa, 450. 398 LAW OF HIGHWAYS. [CHAP. VH. enjoyment of the possession. The two rights are, therefore, incompatible with each other, and cannot stand together. The lessor of the plaintiff seeks sjjecific relief, and to be put into the actual posses- sion of the land. The very fruit of his action, there- fore, if he avails himself of it, will subject him to an indictment for a nuisance ; the private right of pos- session being in direct hostility with the easement or use to which the public are entitled ; and as to the plaintiff's taking possession subject to the easement, it is utterly impracticable." § 320. It has been well remarked that the action, in which this opinion was delivered, was brought to test the right of the public to an easement in the land, and not to recover the land subject to the ease- ment, and to the former point alone was the judg- ment of the Court invoked, and that, therefore, the remarks of Mr. Justice Thompson must be regarded as the extra-judicial dicta of an individual.^ It is certainly manifest that the remarks were made upon a very imperfect review of the authorities, if not upon some misapprehension of principle. In regard to the compatibility of the public enjoyment with individual possession, the reasoning of Swift, J., in Peck V. Smith, would seem to be perfectly conclusive. An easement is a privilege, service, or convenience in the estate of another, by grant or prescription, and comprises no interest in the thing itself It sup- poses that different rights in the use of the same thing may coexist in different persons ; and nothing is more common than for one to have an easement in the land of another, who has an estate in fee and ' 2 Smith's Leading Cases, Wallace's notQ (44 Law Lib.), p. 141. CHAP. VII.] ABANDONMENT AND REVERSION. 399 is in actual possession. A private right of way is such an easement. It is compatible with the right of the owner of the fee to depasture and mow it ; take the trees and anything growing on it ; and hold it in possession for these purposes. If disseised by the grantee of the easement, he can recover posses- sion in ejectment, there being no inconsistency in the recovery subject to the private right of way. The principle is precisely the same in regard to the right of the public in the soil of a highway ; its right is but an easement, and, subject to that, it no more conflicts with the right of the public in a high- way, than with that of an individual in a private way, for the owner of the fee to recover possession.^ 5. Abandonment and Reversion. § 321. At common law, the doctrine of the earlier cases is, that there can be no loss of the public right by mere non-user. A highway once established must always remain such until changed or discon- tinued by process of law. In Eex v. Ward,^ it was decided that an ancient highway cannot be changed or stopped up without the king's license first obtained upon the writ ad quod damnum, and on inquisition found thereon that such a change will not be preju- dicial to the public ; and that if any one change a highway without such authority, he may stop the ' Per Swift, J., in Peck v. Smith, 1 Conn. 135 ; and see Read v. Leeds, 19 Conn. 182 ; Dunham v. V^illiams, 36 Barb. 136. ^ Rex V. Ward, Cro. Car. 266, pi. 66 ; and see Payne v. Partridge, 1 Salk. 12, pi. 1, in which it was held, that the owner of a ferry cannot discontinue it, and build a bridge in its stead, without license obtained under a writ of ad quod damnum. 400 LAW OF HIGHWAYS. [CHAP. VII. new way whenever he pleases ; that by the laying out the subjects have not such an interest therein as that they may justify their going there ; nor is it any such way that the inhabitants are bound to re- pair or maintain it, or, under the ancient law, to watch there or to make amends if any robbery be there committed. And it is said, that in an action of trespass, brought by the owner of the land against those who shall go over such new way, the defend- ants ought to show specially, by way of excuse, how the old way was obstructed and the new one set out.^ So, in Fowler v. Sanders,^ it was held, that a right to narrow a highway by laying logs of wood thereon for fuel in front of an ancient house, being a nuisance, could not be acquired by prescription. In Selwyn's Nisi Prius, it is said to have been the opin- ion of Gibbs, Justice, announced in an unreported case, that even if a highway has not been used, no length of time will be sufficient to prevent the king's subjects from using the way again if they think proper.^ § 322. In regard to navigable rivers, the same .principle has been frequently asserted. Thus, it has been expressly held, that twenty years' possession of the water of a public navigable river at a given level is not conclusive against the public. "'An act of Parliament," said Holroyd, J., " is the only means by which such a right can be determined." * In Weld v. • Hawk. P. C. 76, § 4 ; and see Thomas v. Couell, Vaugh. 341. ' Fowler v. Sanders, Cro. Jao. 446, recognized in Simmons v. Cornell, 1 R. I. 514. ' 2 Selwyn's N. P., by Wharton (4th ed.), p. 503, citing Kex v. St. James. ' Vooght V. Winch, 2 B. & Aid. 662. CHAP. YII.] ABANDONMENT AND REVERSION. 401 Hornby/ a party, who had been entitled for two cen- turies to a weir of brushwood for taking fish in a public river, in 1766 erected a stone weir instead thereof across two thirds of the stream, and,' in 1784, carried it across the remaining part of the river. An action' for obstruction having been brought be- tween nineteen and twenty years from 1784, the jury, under the direction of the Court, that from the lapse of time they might infer a legal commence- ment of the right, returned a verdict for the defend- ant. Lord EUenborough, in setting aside the verdict, remarked : " The right of the defendant to have a stone weir is plainly founded on encroachment. Weirs across rivers were from the earliest times con- sidered nuisances ; and however twenty years' acqui- escence may bind parties whose private rights only are afiected, yet the public have an interest in the sup- pression of public nuisances, though of longer stand- ing." Again, in the case of Chad v. Tilsed,'^ it was considered that forty years' usage, unsupported by other evidence, would not be sufficient to establish an exclusive right over an arm of the sea ; though coupled with the general language of an ancient grant, it might be presumptive evidence of user previous to that time, and through it of an ancient right. But if water, which has been an ancient high- way, by degrees change its course, and go over dif- ferent ground from that whereon it used to run, the highway continues in the new channel as in the old.' > Weld V. Hornby, 7 East, 195. ' Chad V. Tilsed, 2 B. & B. 403 ; Best on Presumptions of Law and Fact, p. 110. ' 1 Roll. Abr. 390 ; and Hawk. P. C. c. 76, § 4. 26 402 LAW OP HIGHWAYS. [CHAP. VII. In Eex V. Montague/ it was held, that a public right of navigation in a river or creek may be extinguished by natural causes, such as the recess of the sea or an accumulation of mud, &c. " Most probably," said Bailey, J., in that case, " the rights of the public, if they ever had any, arose from the flux and reflux of the tides of the sea, so as to make the channel navi- gable. If, then, the sea retreated, or the channel silted up, so as to be no longer navigable, why should not the public right cease ? If they arose from nat- ural causes, why should not natural causes also put an end to them ? " Such obstructions, however, be- ing the act of God, of course constitute no excep- tion to the principle under discussion. § 323. But this doctrine of the ancient authorities has, however, been to some extent departed from in more modern decisions. In Beardslee v: French,^ in which a right was claimed to maintain posts and bars across a highway, upon proof that such posts and bars had been there maintained ever since the laying out of said highway, a period of about ninety years, and were, together with the way, so maintained by the plaintiff, as the only protection from the highway to a large tract of land owned by him, it was said by Hosmer, C. J., speaking for the Court : " Evidence to prove a highway often consists in showing that the public have used and enjoyed the road ; and the uninterrupted use of it, for a considerable space of time, affords a strong presumption of a grant. On the other hand, the lion-user of an easement of this kind, for many years, is prima facie evidence of 1 Rex w. Montague, 4 B. & C. 604. ^ Beaidslee v. French, 7 Conn. 125. CHAP. Til.] ABANDONMENT AND EEVEESION. 403 a release of the right to the person over whose land the highway once ran ; and although the pre- cise limit of time in respect of the public, in such cases, has not been established, there can be no doubt that the desertion of a public road for nearly a cen- tury is strong presumptive evidence that the right of way has been extinguished." In Commissioners V. Taylor,-^ certain lands were conveyed to the town of Georgetown for streets, but never used as such ; but, on the other hand, enclosed and used as a farm for more than forty years ; and it was held, that the doctrine of non-user would apply, which would forfeit a corporate right as well as misuser. The same principle has been established by the Supreme Court of Ohio, in the case of Fox v. Hart,^ and in Ken- tucky, in the case of Eowan's Executors v. Portland.^ In the latter case it would seem that the fee of the land dedicated was vested in town trustees for the public use. Marshall, C. J., in delivering the opinion of the Court, said : " That the public right as growing out of the dedication in this case was subject to be divested and defeated by adverse possession and claim of individual right for twenty years admits, as we think, of no doubt. The ded- ication was not to the Commonwealth as a corporate being, and invested no title or interest in it. The maxim. Nullum tempus occurrit regi, is therefore inap- pHcable. And there is nothing to exempt the right, which vested really in the town and its citizens, to be upheld by them for the pubHc, from the opera- 1 Commissioners u. Taylor, 2 Bay, 282 ; Cutter v. Cambridge, 6 Allen, 20. 2 Foxu. Hart, 11 Ohio, 414. " Rowan's Executors v. Portland, 8 B. Mon. 232, 259. 404 LAW OF HIGHWAYS. [CHAP. VH. tion of the statute of limitatioos, or from the pre- sumptions arising from adverse claim and possession, as they would apply in ordinary cases of private right or public easements." And in Vermont, it was held, that the enclosure and occupation of land within the limits of a highway, for twenty years, under a claim of right, made a title by prescription to the land so enclosed and occupied as against the public.-^ § 324. So it has been very cogently observed by Lord Eldon : ^ " I have heard it stated that this (the presumption of abandonment from non-user) does not apply to the case of a public road. It applies more to that than to a private road. The reason given was, that there cannot be the same presumption of a surrender. If by matter of record the right ap- pears vested in the public, it may be so ; as there the right appears j and the surrender does not ap- pear. But, if the right does not rest upon matter of record, and the public have not enjoyed, it is to be left to the jury to presume, and is almost conclu- sive not that it was surrendered, but that it never existed ; and for this special reason ; one man may surrender, or for many reasons may not enjoy his right; but the probability is, as to the public, that some instance of enjoyment would be shown. That is much stronger than the case of a private road, if for many years there has been no enjoyment; for what one man may relinquish, another may be dis- posed to assert." The rule laid down in the earlier cases, indeed, if not entirely superseded, is certainly • Knight V. Heaton, 22 Vt. 480. 2 Hillary D. Walker, 12 Vesey, 139, 265. CHAP. VII.J ABANDONMENT AND REVERSION. 405 to be considered as very much shaken by the good sense of the modern decisions and their greater conformity with the ideas of the age. But, where a street has been simply laid out and no steps taken towards its completion or preparation for public use, it has been held that a possession and occupancy of the land within the limits of such street for a period of more than twenty years, do not divest the rights of the public, because such a possession is not adverse, but perfectly consistent with the public rights.^ § 325. The old common-law procedure for discon- tinuing or changing a highway, as we have seen, was by the writ of ad quod, damnwrn. This is an original writ issuing out of and returnable into the Court of Chancery, directed to a sheriff to inquire, by a jury, whether the changing a highway will be detrimental to the public or not; the inquisition upon which, being a proceeding only ex 'parte,, is traversable ; and anciently the party aggrieved might have been heard against it before the Chancellor.^ The change effected through this process must be as beneficial to the king and subjects as the old way was before. Therefore, such a writ having been obtained " to lay down timber, wood, and other materials for a wagon way," on an already existing way, it was quashed on motion before the Lord Chancellor, for the want of an equivalent to the pubHc.^ And the finding of a jury under a 1 Henshaw v. Hunting, 1 Gray, 203. See Hollenback v. Rowley, 8 Allen, 473 ; Pettingill u. Porter, 3 Allen, 349 ; Wood v. Quincy, 11 Cush. 487. '^ Ex ■parte Armitage, Ambl. 294 ; Ex parte Vennor, 3 Atk. 766. ' Ex parte Armitage, supra. 406 LAW OF HIGHWAYS. [CHAP. Til. writ of ad quod damnum favorable to those at whose instance it has issued, is not a bar to an indictment for a nuisance. The jury by whom such -an indict- ment is to be tried have a right to exercise their own judgment upon the matter, and may find that to be a public nuisance, which, under this writ, may have been found not to be to the prejudice of the public.^ Where a new road is made in pursuance of such a wi'it, and inquisition thereupon found, after the person who sued out the writ has once made the said road, the parishioners ought to keep it in repair for the future ; because, being discharged from the repairing of the old road, no new burden is laid upon them, but their labor is only transferred from one place to another. But if the new road lie in another parish, then the person who sued out the writ, or his heirs, ought not only to make the road, but to keep it in repair ; otherwise, the parishioners of such other parish would have a new charge upon them, and no recompense by the former road being taken away.^ In England, on account of the ex- pense and difficulty attending a writ of ad quod damnum,, and the more compendious and easy method of diverting highways provided by statutes,^ that writ has fallen into almost complete disuse. In the United States, this process, although it doubt- less exists, has seldom, if ever, been resorted to, a more satisfactory remedy being attainable by special legislation in those States in which complete power » Rex V. Russell, 6 B. & C. 600 ; 9 D. & R. 566. > '' Ex parte Vennor, 3 Atk. 771 ; Rex v. Pleoknow, 1 Burr, 465, 523, 3 Burn's Jus. by Chitty, p. 550 (29th ed.). ' 13 Geo. III. c. 78, § 19 ; and 55 Geo. III. c. 68 ; 5 & 6 Will. IV. c. 50, § 85. CHAP. VII.J ABANDONMENT AND EEVEESION. 407 over this subject has not been given to the au- thorities of the diflferent towns and cities. § 326. From the principles already declared, it necessarily results, that whenever the public ease- ment is relinquished or vacated, the owner of the soil is restored to his original dominion over the same. The land, it is said, reverts to the owner, disencumbered of the public use ; but this does not precisely describe the fact. The land does not re- vert, because there has been no alienation. The public has only been entitled to a certain specific right, the enjoyment of which is incompatible with the exercise of certain private rights, which are, therefore, necessarily suspended. When, however? the public right is reUnquished, this incompatibility vanishes, and, as an inevitable consequence, the pri- vate rights, thereby suspended, revive.^ ' Fairfield v. Williams, 4 Mass. 427; Perley v. Chandler, 6 Blass. 457; Alden v. Murdock, 13 Mass. 256 ; Jackson v. Hathaway, 15 Johns. 447 ; Barclay v. Howell, 6 Peters, 498, 513 ; Neville Road case, 8 Watts, 172 ; United States v. Harris, 1 Sumner, 21; John and Cherry Streets, 19 Wend. 659, 666 ; 12 lb. 371 ; Nicholson v. Stockett, 1 Walker, 67. By the 13 Geo. HI. c. 78, § 1 7, where a new highway shall be made as there- inbefore directed, the old highway is directed to be stopped up, and the land and soil thereof sold by the surveyor to some person or persons whose lands adjoin thereto, if willing to j)urchase the same ; if not, to some other person for the full value thereof; and, after payment of the purchase-money, it is declared that the soil shall become vested in such purchaser and his heirs ; but all mines, minerals, and fossils lying under the same shall continue to be the property of the persons who would have been entitled to the same if such old highway had continued. Upon this provision of the English statutes, the dissenting judges in Peck v. Smith, 1 Conn. 156, based their argument, that the ultimate fee of highways was in the State. This provision has been commented upon by 3Ir. Wellbe- loved, in his Treatise on Highways as follows: "It seems evident from the wording of these acts, that a point was taken for granted, which ad- mits of very great doubt ; I mean the power to sell that of which a sale 408 LAW OF HIGHWAYS. [CHAP. VII. 18 directed. The surveyor of a highway can possess no greater interest in it than the public, whose servant he is ; and if they have no title to the soil thereof, it is difficult to say how he can dispose of it ; unless, indeed, we construe the act of Parliament to have the effect, in the first place of divesting the freehold out of the owner, and then of granting the same to the surveyor, after which he is in with the power of sale. It may be ad- mitted to be clearly the intention of the legislature, that the soil of all unnecessary highways should be sold. But, however the clause may be framed upon a false supposition as to the state of the law, yet it by no means appears to be so clearly worded as to alter that law. It will not, surely, be maintained that private property can be torn from the owner, and that, too, without any compensation, merely by implication. Individ- ual rights ought not to be destroyed but by plain and express words ; nothing less than an absolute enactment to that effect should suffice. As- suming, then, that this power of sale cannot embrace any greater estate or interest than such as the public were entitled to before its creation, the enactment seems to be defective as to the means of accomplishing such a sale. For, to omit any question which might arise as to the power of conveying this public easement, otherwise than by way of release to the owner of the soil, let us consider what interest would be obtained by the purchaser. Now, the sale must be made to one of three classes of purchasers, — either first, to a mere stranger, — secondly, to the owner of the land adjoining only on one side of the way, — or, thirdly, to both the contiguous proprietors in equal moieties. First. If the purchase be made by a stranger, what will he acquire ? The trees growing on the ■way cannot be his, for they already belong to the owners of the nearest adjoining land. For the same reason, all mines, minerals, and other val- uable property underground would have been out of his power, even if the act itself had not deprived him of them. But, to proceed still fur- ther, this unfortunate purchaser, having obtained neither trees nor mines, will discover that it will not even be permitted him to grow grain upon his newly acquired territory. For, if he plough the land, he will render himself liable to be sued as a trespasser. To prove this, I need only re- fer to a ease which is reported by Godbolt, p. 52, and the case of Lade V. Shepherd" And, to conclude the whole, he will not even acquire a right of pasturage. Stevens w. Whistler, 11 East, 51. Secondly. If the purchaser be the proprietor on only one side of the way, his right will be complete to no more than one moiety of the land ; and, as to all beyond the medium filum vice, he must be considered as a stranger. Thirdly. We may conclude, then, that the third class of purchasers, viz. both the adjoining owners, are those, and those only, who can safely buy what the legislature has directed to be sold. If they refuse to purchase, the land must remain unsold, since the act contains no provision to oblige them to a compliance ; and, in such a case, it would seem that the highway can- CHAP. VII.] ABANDONMENT AND REVERSION. 409 not be stopped up, as the order of the justices must be for the sale as well as the stopping up thereof." Wellbeloved on Highways, pp. 30, 31, 32. By the later statute, 5 & 6 Will. IV. c. 50, however, no power is given of selling the old highway when stopped up ; it should therefore seem, when any way has -been legally stopped up, that the owner of the soil in it will become entitled to the land discharged, from the right of the public. Shelford on Highways, 143. 410 LAW OF HIGHWAYS. [chap. vni. CHAPTER VIII. TRAVEL UPON HIGHWAYS. 3. Travel tjpon ordinary Roads and Streets. Travel upon Turnpike Roads. Travel upon Canals. 4. Travel upon Railroads. 5. Travel upon Ferries. 6. Travel upon Navigable Rivers. § 327. A HIGHWAY has been defined to be a road which every citizen has a right to use.-^ Its object is to facilitate communication among men, and the transportation of goods. But, being open to the travel of the public generally, it is evident that this object would be liable to continual frustration, unless such travel were subject to some certain rules and regulations. The purpose of the following chapter is to explain and illustrate the rules and regulations of travel upon highways. 1. Travel upon ordinary Roads and Streets. § 328. The Law of the Road.. One of the most usual incidents of travel upon highways is the meet- ing and passing of vehicles and teams. To prevent collision and to secure travel from interruption, it is necessary that there should be some certain rule in regard to their passing. This rule has been called the law of the road. In England, the custom- » Anle, § 2. CHAP, vni.] THE LAW OP THE ROAD. 411 ary rules of driving are : First, that, in meeting, each party shall bear or keep to the left, which is the reverse of the rule in this country ; that is to say, in this country each party shall bear or keep to the right. Secondly, that, in passing, the foremost per- son bearing to the left, the other shall pass on the off side. Thirdly, that, in crossing, the driver com- ing transverse shall bear to the left hand, so as to pass behind the other carriage.^ In England, these rules seem equally applicable to cases of persons on horseback, as well as to persons driving carriages.^ § 329. The rule, however, that a driver is bound to keep on the- left side of the road in England is not inflexible ; although, if he does not, he is bound to use more care and caution, and keep a better look out to avoid collision, than would be necessary if he were on that side.^ In Wayde v. Carr,* the defendant's carriage was on the wrong side of the road, and the driver, in attempting to pass a hack- ney-coach which interposed between his mistress's carriage and the plaintiff's gig on the near instead of the off side, injured the plaintiff; and it was held that it was for the jury to decide the question of negligence, without regard to the law and usage of the road. "Whatever," said the Court, -'might be the law of the road, it was not to be considered as inflexible and imperatively governing a case of this description. In the crowded streets of a me- ^ 2 Steph. N. P. 984 ; Petersdorf, Abr. p. 55, note ; Story on Bail- ments, § 599; Angell on Common Carriers, § 549; Wayde v. Carr, 2 Dow. & Ry. 255. 2 Turley v. Thomas, 8 Car. & Payne, 103. ' Pluckwell u. Wilson, 5 Car. & Payne, 375. * Wayde v. Carr, 2 Dow. & Ry. 255. 412 LAW OF HIGHWAYS. [CHAP. YIII. tropolis, where this accident happened, situations and circumstances might frequently arise where a deviation from what is called the law of the road would not only be justifiable but absolutely neces- sary. Of this the jury were the best judges, and, in- dependently of the law of the road, it was their province to determine whether the accident arose from the negligence of the defendant's servants. They had acquitted him of negligence, and, having all the circumstances of the case before them, had found their verdict for the defendant." § 330. That a deviation from what is called the law of the road may, at times, not only be justifiable but absolutely necessary, appears from the remarks of the Court in the case of Turley v. Thomas.^ In that case it appeared that the plaintifi''s servant was driving a gig on the proper side of the road, and that the defendant then was on horseback, riding at a great rate in the opposite direction, and was on his wrong side of the way, when he came into col- lision with the plaintiff's gig and broke it. And per Coleridge, J. : " The question in this case is whether the defendant is to blame, or whether the fault was wholly or in part in the plaintiff's servant. It has been suggested as a doubt by the learned counsel for the defendant, whether the rule of the road ap- plies to saddle-horses or only to carriages. Now I have no doubt that it does. If a carriage and a horse are to pass, the carriage must keep its proper side, and so must the horse. It has also been said to be doubtful whether, if a person driving a carriage is on his proper side, and sees a horse coming furi- ' Turley v. Thomas, 8 Car. & Payne, 103. CHAP. VIII.] THE LAW OF THE EOAD. 413 ously on its wrong side, the driver of the carriage should give way and let the horse pass. Now, I think on this point, that it is the duty of the per- son driving a carriage, under such circumstances, to give way if there be room, so as to let the horse pass and avoid an accident, although in so doing the carriage does go a little on what would other- wise be the wrong side of the road." In the above case, however, the jury returned a verdict for the defendant. § 331. In the United States, it has been decided that there is no law of the road requiring a man on horseback, when meeting a horse or vehicle,, to turn out on the right or left side. The rider must govern himself in this respect according to his notions of prudence at the time, under the circumstances.^ But it has been said, in Vermont, that it is ordina- rily a rule, sanctioned by common consent and im- memorial usage, that a person on horseback should yield the travelled path to one who is travelling in a wagon or other vehicle.^ In Pennsylvania, it was held, that although a footman or an equestrian has a right of way as well as the driver of a carriage, yet the enjoyment of that right is to be regulated by reason, and is not such that they can compel a team- ster, who has a heavy draught, to leave the smooth beaten track of the road, if there is sufficient room to pass on either side. And where a road is nar- row, or there is difficulty in passing, and it becomes impracticable or dangerous for the teamster to give part of the way, and the horseman can ride by, by ' Dudley v. Bolles, 24 Wend. 465. " Washburn v. Tracey, 2 D. Chip. 128. 414 LAW OF HIGHWAYS. [cHAP. VIH. passing out of the road, it is his duty to do so. If he refuses, and a colUsion ensues which occasions injury to his horse, it is attributable to his own neg- hgence or obstinacy, and he is without remedy. And this rule was said to apply to a buggy laden with three men and drawn by a single horse.-^ § 332. If there is no other carriage to intercept the driver, he may pass on what part of the road he may think most convenient.^ And, it has been held, if the street or road is very broad, he. is not bound to observe the proper side of the road. In Wordsworth V. Willan,^ which was an action on the case against the defendants, proprietors of a stage-coach, for the negligence of their servant, in driving so near the path on the wrong side of the road, that the plain- tiff's horse becoming frightened, and plunging, came in contact with the coach, and broke his leg ; it was said by Eook, J., that it could not be laid down as a certain rule, nor did j)ublic convenience require, that the driver is, under all circumstances, bound to keep on what is considered the proper side of the road ; and that if there was no interruption of any other carriage, or the road was better, public convenience did not require that the driver should adhere to that law of the road. He took the rule to be, that if a carriage coming in any direction left sufficient room for any other carriage, horse, or pas- senger, on its proper side of the way, it was suffi- ' Beach v. Parmenter, 11 Harris, 196; Grier v. Sampson, 27 Penn. (State) l'83. ^ Aston V. Heaven, 2 Esp. 533; Palmer v. Barker^ 11 Maine, 338; Johnson & Co. v. Small, 5 B. Monr. 25 ; Foster o. Goddard, 40 Maine, 64. ° Angell on Carriers, § 552 ; Wordsworth v. Willan, 4 Esp. 273. CHAP. Vm.] THE LAW OF THE ROAD. 415 cient ; but that it was evidence for the jury if the accident arose from want of that sufficient room; the driver was not to make experiments. § 333. The pase cited in the preceding section was decided in England, where the "law of the road" is established by custom. In this country, where it is enacted by statute, the rule is probably a httle more stringent. Thus it has been laid down that if a party, in travelling, voluntarily goes upon the prohibited side of the way, and from the size or character of his team or vehicle, or the state of the road, should be unable to surrender to such as he might meet the portion of the way to which they were entitled, the fact that he could not yield the way might not, and probably would not, furnish a legal excuse, exonerating him from liability for an injury sustained by one passing, who was in nowise in fault. The wrong would consist in placing himself where he might be the occasion of the injury which has resulted ; that is, on the prohibited side of the way. It would be legal fault in him to be found there occupying that part of the way belonging for the time to another, as against him. His inability to leave the part of the way voluntarily occupied would not form a valid excuse, exonerating him from liability for the injury sustained by another, by reason of such occupancy. But the traveller whose part of the way is trenched upon by another cannot for that reason, carelessly or imprudently rush upon the party or his team or vehicle, and, if he sustain an injury, recover damages therefor. Pie may probably attempt to pass, if such attempt would be reasonably safe and prudent. If otherwise, he must delay, and 416 LAW OF HIGHWAYS. [CHAP. VIII. seek redress for the detention if damage result there- from. But if, in a prudent attempt to pass, he sus- tained injury, there would seem to be no reason to doubt that the law would give redress. And where a traveller is delayed by such occupancy of the pro- hibited side of the road, damage arising from the detention would probably furnish a valid and sub- stantial ground or cause of action.^ § 334. In a prosecution for the penalty prescribed by the Massachusetts statute for not passing a car- riage which is met upon a road, "to the right of the middle of the travelled part of such road," it has been held to be no defence for the party so offend- ing that he turned to the right of the middle of the wrought part of the road, even though in so doing he left suf&cient room for travellers to pass with convenience and safety in the use of ordinary care and skill.^ But this was a criminal proceeding. In civil suits it is not enough to entitle the plaintiff to recover for damages occasioned by a collision, for him' to show that at the time jjf the collision the de- fendant was not complying with the statute ; but he must also show that he himself exercised ordinary precautions to avoid the injury. The traveller on a highway, it has been said, is not with foolhardiness to rush into danger because his fellow-traveller has wrongfully given him the opportunity to receive an injury. "A traveller may well occupy any part of the road, if no other person is occupying any portion of it. When, by reason of meeting another traveller, the occasion requires it, he must seasonably turn to > Per Woods, J., in Brooks v. Hart, 14 N. H. 307. " Commonwealth v. Allen, 11 Met. 403. CHAP. VIII.] THE LAW OF THE ROAD. 417 the right. The law imposes this duty ; but his disre- gard of that duty will not justify the traveller, who may be on the proper side of the road, in volun- tarily or carelessly permitting himself to be injured, either in his person or property, and then seeking to recover damages therefor of his fellow-traveller, who was wrongfully on the left of the centre of the road." ^ § 335. In Kentucky, under an act which prescribed that "all vehicles of every kind, meeting, shall give to each other one half of the macadamized part of the road, each passing to the right," it was held, that the plaintiff, whose team was injured in consequence of the carelessness of the defendant whilst it was stopping on the left of the road for him to pass, was entitled to recover damages therefor. " It appears," said the Court, " that the plaintiff's team, in ascend- ing the hill, was occupying the left part of the road, when the stage, in turning a short bend of the road above him, hove in sight at the distance of fifty yards from him, and from the shortness of the dis- tance between them, the rapidity of the stage's ap- proach, and his then position on the road, had the plaintiff attempted to change the direction of his horses, with a view to^ass to the right, that he could not have accomplished more than to have drawn his horses and wagon obliquely across the road by the time the stage arrived, thereby obstructing the en- tire road and necessarily producing a conflict. It was therefore impossible, from his position, to pass to the right, leaving the one half of the road to the stage, and, lex neminem coget ad impossihilia. ^ Parker v. Adams, 12 lb. 415 ; Smith v. Gardner, 11 Gray, 418. 27 418 LAW OF HIGHWAYS. [CHAP. VIII. Moreover, he did not attempt to pass to the right or left, but reined his team off the road to the left, in a corner of the fence adjoining, and halted there, leav- ing the greater part of the road for the. stage to pass ; and it is obvious, from the direction the stage-horses were taking just before, that they could have passed without a conilict, had it not been for their sudden turn to the right as they approached the plaintiff's team." And the Court refused a motion to set aside the verdict upon the ground that the plaintiff was guilty of a violation of the road law, and a derelic- tion of duty, in failing to turn and pass the stage on the right.'^ § 336. In this country, a person may pass on the left side of the road, or across the same, for the pur- pose of turning up to a house, store, or other object on that side of the road ; but, in so doing, he must not interrupt or obstruct a man lawfully passing on that side, which would be in a direction in a degree contrary to his ; if he does, he acts at his peril, and must answer for the consequences of such violation of his duty. In such circumstances, he must pass before, or wait till after such person has passed on.^ And in a case in which a carriage, in passing from one street into another, which was at right angles to ' Johnson & Co. v. Small, 5 B. Monr. 25. In Maine, when persons meet and pass each other upon the public highway, it is, by the Kev. Stats, c. 26, the duty of each to pass " to the right of the middle of the travelled part of the road or bridge, when practicable." And when it is not practicable, that is, when it is difficult or unsafe for him to do so on account of his vehicle being heavily loaded, or for other cause, he should stop a reasonable time at a convenient part of the road, to enable the other person to pass, and without any request from him. Kennard v. Burton, 25 Maine, 39. ^ Palmer v. Barker, 11 Maine, 338. CHAP. VIII.] THE LAW OP THE ROAD. 419 it, and crossing the same, came accidentally into col- lision with another carriage, the Court held the dri- ver liable for the damage which ensued. Before attempting to cross, it was observed, he ought to have seen that he could do it without interferins with persons who were in the proper exercise of their right of passing through the street.-^ § 337. In cases where parties meet on the sudden, and an injury results, the party on the wrong side of the road should be held answerable, unless it clearly appears that the party on the proper side had ample means and opportunity to prevent it. " A man," says Chief Justice Best, " may not, on a sudden, be suffi- ciently self-possessed to know in what way to decide ; and, in such case, the wrongdoer is the party who is to be answerable for the mischief; though it might have been prevented by the other party's acting dif- ferently."^ § 338. The Massachusetts act^ prescribes, that "whenever any persons shall meet each other, on any bridge or road, travelling with carriages," &c., they shall turn to the right of the centre of the travelled part thereof The term "road," used in the statute, has been construed to import any place set apart and appropriated, either de jure or de facto, to the purpose of passing with carriages, whether by public authority or by the general license and permission of the owners. All the rea- sons, it was said, which induced the legislature to ' Fales V. Dearborn, 1 Pick. 345. But see per Dewey, J., in Parker V. Adams, 12 Met. 415, 420; Lovejoy v. Dolan, 10 Cusli. 495. '^ Chaplin v. Hawes, 3 Car. & Payne, 554 ; Angell on Carriers, § 655. ° Kevised Statutes, c. 51, § 1. 420 LAW OF HIGHWAYS. [CHAP. VIII. prescribe the rule requiring travellers respectively to turn to the right extend to all roads so used ; and, therefore, it is no defence on a prosecution for the violation of the statute, to show that the place vphere the collision took place was not a public way.^ By the words, "the travelled part" of the road, used in this act, is intended that part which is usually wrought for travelling.^ But when that part of the road which is wrought for travelling is hidden by snow, and a path is beaten and travelled on the side of the wrought part, persons meeting in such beaten and travelled path are required to drive their vehicles to the right of the middle of such path.^ § 339. In New York, under a statute which pre- scribes that carriages, in meeting, shall seasonably turn, drive, &c., "to the right of the centre of the road," it has been held, that it is not the centre of the smooth or most travelled part of the road which is the dividing line, but the centre of the worked part, although the whole of the smooth or most travelled path may be upon one side of that centre, unless the situation of the road is such that it is impracticable or extremely difficult for the party to turn out. The fact that the road is rough or rutty is no excuse.* By the terms, " seasonably turn, drive," &c., is meant that the travellers shall turn to the right in such season that neither shall be retarded in his progress by reason of the other ' Commonwealtli v. Gammons, 23 Pick. 201 ; Fales v. Dearborn, 1 lb. 345 ; Danforth v. Durrell, 8 Allen, 242. ^ Clark V. Common-wealth, 4 Pick. 125. = Jaquith v. Richardson, 8 Met. 213 ; Smith v. Dygert, 12 Barb. 613. [ ' Earing v. Lansing, 7 Wend. 185. CHAP. VIII.] THE LAW OP THE KOAD. 421 occupying his half of the way, when he may have occasion- to use it in passing.^ § 340. It has been stated, that, in England, the customary rule for travellers proceeding in the same direction is that, in passing, the foremost person bearing to the left, the other shall pass on the off side. In this country there is no such rule, and the law has been declared to be, that a traveller may use the middle or either side of the road at his pleasure, and without being bound to turn aside for another travelling in the same direction, provided there be sufficient room to pass on the one hand or on the other. If there be not sufficient room, it is the duty of the foremost traveller to afford it, on re- quest made, by yielding an equal share of the road, if that be adequate and practicable ; if not, the object must be deferred till the parties arrive at ground more favorable to its accomplishment. Should the leading traveller then refuse to comply, he would be answerable at law for it;^ but such ' Per Woods, J., in Brooks v. Hart, 14 N. H. 310. " The use of the track of a street railroad, when the cars are moved by horse power, by common carriages is not unlawful, nor in itself negli- gence, but the company are entitled to the unrestricted use of their rails within the limit of speed allowed by law to them, and as between them and the driver of any other vehicle who may be upon their track in front, the latter, being unnecessarily there, must exercise more care than if he was on an ordinary pavement, to see that an approaching car is not impeded. Heegan v. The Eighth Avenue Railroad, 15 N. Y. 380 ; Wilbrand v. The Eighth Avenue Railroad, 3 Bosw. 314. And upon an indictment, under the statute in Massachusetts, of the driver of a heavily loaded team for obstructing the passage of the car of a horse- railroad, by neglecting to turn off from the track or to increase his speed when requested by the driver of the approaching car, it is held that the railroad company, by their franchise, have the right to move on the pre- cise line of their track, and at the usual rate of speed at which passen- gers are carried by horses, and that the right of the public to use the 422 LAW OP HIGHWAYS. [CHAP. VIII. refusal gives to the other no right to effect the passage by a forcible collision with him, redress being deraandable only by due course of law. And it has been held, that evidence of a custom for the leading carriage to incline to the right, the other making the transit at the same time to the left, is not admissible. Neither is the principle of a statu- tory provision made to regulate the deflection of those who are travelling in opposite directions appli- cable to those who are travelling in the same direc- tion ; its object being to avoid, by a preconcerted movement, the collision which might otherwise ensue from the mutual misapprehension of intention fre- quently observable between foot-passengers, and which could not occur to persons travelling in the same direction.'^ § 341. FootrPassengers. All persons have a right to walk in a public highway, and are entitled to the exercise of reasonable care on the part of persons driving carriages along it. Thus, where it appeared that the plaintiff was walking in the carriage-way in the neighborhood of Islington, about ten o'clock in the evening, when the defendant, who was driving a taxed cart, turned out from behind a postchaise and drove against him, and knocked him down, it was held, that he was entitled to recover. It was proved street was thereby qualified, and must be adapted to such new use by the railroad ; and, there being no impediment to prevent, it was the duty of the defendant to turn off from the track to allow the car to pEiss, and he was liable to indictment without other proof of wilful intent. Common- wealth V. Temple, 14 Gray, 69. And see also McCarty v. State, 37 Miss. 411. In England, an intent to cause the obstruction is necessary under the statute. Batting v. Bristol and Exeter Railway, 9 W. R. 271; 3 L. T. N. S. 665, cited in Redfield on Railways, § 227, note. ' Bolton V. Colder, 1 Watts, 360. CHAP. VIII.] FOOT PASSENGEES. 423 by a policeman, that the. footpath was in a bad state, and seldom used; and the counsel for the plaintiff was questioning another witness to the same point, when Denman, C. J., observed: "I do not think that any more evidence need be given on that subject. The policeman has proved the state of the path. A man has a right to walk in the road if he pleases. It is a way for foot-passengers as well as carriages. But he had better not, especially at night, when carriages are passing along." ^ But, how- ever this may be, it is quite clear that a foot-passen- ger has a right to cross a highway, and that persons driving carriages are liable if they do not take care so as to avoid driving against the foot-passengers who are crossing the road ; and if a person, driving along the road, cannot pull up because his reins break, that will be no ground of defence, because he is bound to have proper tackle.^ This right of the foot-passenger, however, does not exempt him from due care on his own part. Thus, if a person in a public street in a city sees an omnibus coming, how- ever furiously, and he will be headstrong enough to try to cross the street, and is run over, he cannot recover in an action against the proprietors of the omnibus, as no one has a right of action if he meets with an accident which, by ordinary care, he. might have avoided.^ The rule as to the proper side of the road does not apply with respect to foot-passen- ' Boss V. Litton, 5 Car. & Payne, 407 ; and see Leame v. Bray, 3 Easlj, 593. ' Cotterill V. Starkey, 8 Car. & Payne, 691 ; Wakeman v. Eobinson, Bing. 213. = Wolf V. Beard, 8 Car. & Payne, 373 ; Cotton v. Wood, 8 Scott, C. B. (N. S.) 568. 424 LAW OF HIGHWAYS. [CHAP. VIH. gers ; but, as regards them, the carriages may go on whichever side of the road they may please.^ § 342. Rate of Speed. Another duty which trav- ellers are bound to observe is to drive at a moderate rate of speed. To drive a carriage through a crowded or populous street at such a rate or in such a manner as to endanger the safety of the in- habitants is an indictable offence at common law, and amounts to a breach of the peace. In this country, driving faster than an ordinary travelling pace in the streets of populous cities is very gener- ally prohibited by statutes or municipal ordinances ; and it is a well-settled principle, that a person, who is engaged in an illegal or prohibited course of con- duct is liable for all the consequences of his acts.^ But, independently of this principle, driving at an immoderate rate of speed is, in itself, a culpable negligence, from which, if an injury result, without fault of the person injured, the author is liable for it.^ What is immoderate speed is a question for the jury. Best, C. J., speaks of it as such speed that the horses cannot be stopped or properly directed ; and Barbour, J., speaking for the Supreme Court of the United States, describes it as "rapid driving, which, under the circumstances of the case, amounts ' Cotterill v. Starkey, supra ; Lloyd v. Ogleby, 5 C. B. (N. S.) 667. The same applies in the use of private ways opened to the public as ex- ists in regard to the use of highways. Commonwealth v. Gammons, 23 Pick. 201 ; Danforth v. Durell, 8 Allen, 242. ' United States v. Hart, 1 Peters, 590. In this ease, it was held, that the United States mail-coaches are subject to the same rule as other ve- hicles in this respect. So of horse-railroads. Wright v. Maiden Rail- road Co. 4 Allen, 444. " Per Best, C. J., in his charge to the Wilts grand-jury, cited in note to 8 Car. & Payne, 694. CHAP. VIII.] STOPPING BY THE WAYSIDE. 425 to rashness." ^ Thus it has been held, mdependently of any statute, that driving at the rate of fifteen miles an hour, or a mile in four minutes, on a public highway, is unlawful; and if death ensues from a collision thus produced, without fault of the injured party, the oflFence, in Pennsylvania, it seems, would be murder in the second degree, unless accompanied with such circumstances of passion as to reduce the offence to manslaughter.^ But the reported cases, in which this point has been discussed, have related chiefly to the liability of the proprietors of stage- coaches to their passengers. In this class of cases where there appears to have been manifest reck- lessness on the part of drivers, the books record the recovery of very exemplary damages. But as our purpose is simply to treat of the rights and duties of travellers in relation to each other, without regard to any relation depending upon contract, whether express or implied, these cases, though illustrative of the subject under consideration, need only be re- ferred to without a full examination.^ § 343. Stopping hy the Wayside. It is the right of travellers to stop temporarily by the roadside for their own personal convenience, or for the purpose of lading or unlading their carriages ; but this right must be strictly subordinated to the primary use of highways as thoroughfares for travel. Thus in a case, previously referred to,* it appeared, that one or ' Stokes V. Saltonstall, 13 Peters, 181. ' Kennedy v. Way, 3 Law Reporter (N. S.), 184. ' Gough V. Bryan, 5 Dowl. P. C. 765 ; Mayor v. HumpLries, 1 Car. & Payne, 251 ; McKinney v. Niel, 1 McLean, 540 ; Peck and Wife v. Niel, 3 McLean, 22 ; Angell on Carriers, §§ 543 - 548. * Kex V. Russell, 6 East, 427 ; ante, § 227. 426 LAW OF HIGHWAYS. [CHAP. VIH. two, and sometimes three large wagons of the defend- ant, were for several hours, both day and night, standing in a street thirty-seven feet wide before his Avarehouse, and usually occupied one half of the street, so that no carriage could pass on that side next the warehouse, though two carriages might pass on the opposite side, the gutter being in the middle of the street ; the wagons being loaded and unloaded in the streets, and the packages thrown down on the same side of the street, so as fre- quently, with the wagons, to obstruct even foot- passengers, and oblige them to cross the gutter to the other side. This was held to be an unreasonable interference with the free passage of the public, and to be indictable as a nuisance. So it is imlawfal for stage-coaches or omnibuses to congregate by the sides of the streets of a populous city, and remain there an unreasonable length of time soliciting passengers.^ And this right, when used within the bounds of reason, must be exercised with a proper regard to the safety of the public travel. Thus, if a horse and carriage are left standing in the street, and without any person to watch them, the owner is liable for any damage done by them, although it is occasioned by the act of a passer-by in striking the horse ; for if a man chooses to leave a horse and carriage standing in the street, he must take the risk of any mischief that may be done in conse- quence.^ But in an action for trespass for an injury ' Eex V. Cross, 3 Campb. 226. ^ lUige V. Goodwin, 5 Car. & Payne, 190. In this case, tte plaintiff was a chinaman in St. Paul's Churchyard ; and the cart of the defend- ant (a scavenger) backed against the window of the plaintiff's shop, and CHAP. VIII.] HOAD-WORTfflNESS. 427 done to a horse by a pony and chaise running against it, where it appeared that the defendant's wife stood by the head of the pony, which was standing by the side of the street, holding it by the reins, when a Punch and Judy show coining by frightened the pony, and he ran away, and almost pulled the defendant's wife down while she tried to hold him, and so obliged her to let go the reins; it was held, that the defendant's wife being a proper person to have the care of the pony, the injury was the result of inevitable accident, and did not entitle the plaintiff to recover.-^ § 344. Road-Worthiness. A traveller upon a high- way is bound to have his harness and carriage in good road-worthy condition, and is liable for the damages occasioned by any insufficiency in this par- ticular. Thus where the proof was that, in going down hill, the chain-stay to the defendant's cart broke, and his horse became frightened in conse- quence and ran away ; it was held that the defend- ant was bound to have good tackle, and was neg- ligent if he did not.^ In Johnson v. Small,^ the injury resulted from a collision between a stage- coach and a wagon upon the declivity of a very precipitous hill. It appeared that one of the blocks or rubbers, which was necessary by the assistance of broke a quantity of china ; the carman, not being present at the time, but came up soon after. There was, however, proof in this case, that the defendant had admitted that the horse was given to backing, and that .it was very wrong in the man to leave it in the street. And see Park v. O'Brien, 23 Conn. 339 ; MeCahill v. Kipp, 2 E. D. Smith, 523. ' Goodman v. Taylor, 5 Car. & Payne, 410. ' Welsh V. Lawrence, 2 Chitty, 262 ; Smith v. Smith, 2 Pick. 621 ; Murdock v. Warweck, 4 Gray, 178. * Johnson v. Small, 5 B. Monr. 25. 428 LAW OP HIGHWAYS. [CHAP. VIII. a lever, to one end of which it vfas fastened, to check the speed of the stage-coach, had become loose, and the driver vs^hen he received the team nine miles back had procured nails and attempted to fasten it, and said he thought it was fast. This block or rubber dropped ofF^^before or after he started down the hill, and in pressing upon the end of the lever without the block, the end under his foot was pressed down upon the off horse, who plunged and continued to plunge as often as it was pressed upon, which caused the other horses to take fright and press forward until they ceased to be under the control of the driver. The Court held that the jury might well have inferred that the stage-driver was guilty of negligence in fastening the block or lever insecurely when he received the stage; and that if he was not guilty of negligence at that time, know- ing that it had been loose, and might not be well fastened, they might well have concluded that he was guilty of negligence, and the failure to exercise that care and vigilance which a cautious and pru- dent man would have exercised, in not examining the rubbers before he commenced the descent of so dangerous a hill. The term " negligence," it has been remarked, includes "not only careless driving, but exciting the horses to such a rate of speed that they cannot be stopped or properly directed, the know- ingly driving unbroken or vicious horses, overload- ing a coach, or using one that has not sufficient strength or improper harness." ■■■ ' Per Lord C. J. Best, in his charge to the Wilts grand-jury in 1827, cited in note to Cotterill v. Starkey, 8 Car. & Payne, 691 ; and see Chris- tie V. Griggs, 2 Campb. 79 ; Hollister v. Nowlen, 19 Wend. 234 ; Israel CHAP. VIIl] collision. — MUTUAL NEGLIGENCE. 429 § 345. Whenever, in consequence of a violation of these rules or of the want of proper care and diligence in any other respect, a collision ensues, the party through whose fault it happens is liable for the injury, unless the injured party, through his own negligence or misconduct, contributed to the result. But if it appears that the damage was oc- casioned partly by the negligence of the plaintiff and partly by that of the defendant, an action cannot be maintained ; for the rule is, that if the plaintiff's negligence in any way concurred in caus- ing the damage, he is not entitled to recover.^ " A V. Clark, 4 Esp. 259 ; Ingalls v. Bills, 9 Met. 1 ; Bremner v. Williams, 1 Car. & Payne, 414 ; Sharp v. Grey, 9 Bing. 457 ; Angell on Carriers, §§ 534-539. It is said the dissenting opinion by Appleton, C. J., in the case of Moulton v. Sanford, that the former oases in that State, Moore v. Abbott, 32 Maine, 46 ; Coombs v. Topsham, 38 Maine, 214 ; and Ander- son V. Bath, 42 Maine, 346, affirm the doctrine that the plaintiff, as against the town in a suit for injuries caused by defective way, guarantees against all defects latent or patent in his wagon, harness, and horse, and upon the facts in those cases the decisions might be sustained on that ground, but they are not put upon that ground by the Court, and such is not the rule in other States where the plaintiff is only held to due care and diligence in examining and in discovering defects and faults. Wjnship V. Enfield, 42 N. H. 197 ; Hunt v. Pownal, 9 Vt. 411 ; Palmer v. Andover, 2 Cush. 600 ; Kelsey v. Glover, 15 Vt. 711. ' Flower v. Adam, 2 Taunt. 314 ; Pluckwell v. Wilson, 5 Car. & Payne, 358 ; Luxford v. Large, lb. 421 ; Williams v. Holland, 6 lb. 23 ; Turley V. Thomas, 8 lb. 104 ; Woolf v. Beard, 8 lb. 373 ; Bridge v. Grand Junc- tion Railway Co. 3 M. & W. 244; Vanderplank v. Miller, 1 Moo. & Malk. 169; Harlow v. Humiston, 6 Cow. 191: Smith v. Smith, 2 Pick. 621; Lane v. Crumble, 12 Pick. 177; Munroe v. Leach, 7 Met. 274; Churchill v. Rosebeck, 15 Conn. 359 ; Simpson v. Hand, 6 Whart. 311; Rathbun v. Payne, 19 Wend. 499; Barnes v. Cole, 21 lb. 188; Hartfield v. Roper, lb. 615; Brownell v. Flagler, 5 Hill, 282; Sills v. Brown, 9 Car. & Payne, 601 ; Lynch v. Nurdin, 1 A. & E. (N. S.) 29 ; Lack v. Seward, 4 Car. & Payne, 106 ; Davis v. Saunders, 2 Chitty, 639 ; WooUey V. Scobell, 3 M. & R. 105 ; Fitzsimmons v. Inglis, 5 Taunt. 534. "Rea- sonable care and skill " is a relative phrase, and in its application varies 430 LAW OF HIGHWAYS. [CHAP. VIII. party," said Lord EUenborough, in Butterfield v. For- rester/ " is not to cast himself upon an obstruction which has been made by the fault of another, and avail himself of it, if he do not himself use common and ordinary caution to be in the right. In cases of persons riding upon what is considered to be the wrong side of the road, that would not authorize another to ride up against them. One person being in fault will not dispense with another's using or- dinary care for himself. Two things must concur to support this action, an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff." The rule of law thus laid down was entirely approved by Parke, B., in Bridge v. Grand Junction Railway Com- pany,^ who added, however, "that although there may have been negligence on the part of the plaintiff, yet unless he might, by the exercise of or- dinary care, have avoided the consequences of the defendant's negligence, he is entitled to recover ; if by ordinary care he might have avoided them, he is the author of his own wrong." And in a subsequent according to the circumstances under which it is to be exercised. Cun- ningham V. Allen, 4 Allen, 2G8; Commonwealth v. Temple, 14 Gray, 69. See Duggins v. Witson, 15 Ark. 118; Neal v. Gillett, 23 Conn. 437; Pennsylvania Railroad Co. v. MoTighe, 46 Penn. 316. As to ordinary care, &o. at railroad crossings, see Moore v. Central Eailroad Co. 4 Zabris. 268 ; Ibid. 824 ; Brooks v. Buffalo, &c. Railroad, 25 Barb. 600 ; Stoves v. Oswego and Syracuse Eailroad, 18 N. Y. 422 ; Steffield v. Oswego and Syracuse Railroad, 21 Barb. 339 ; Dascomb v. Buffalo and State Line Eailroad, 27 Barb. 221 ;" Wilds v. Hudson River Eailroad, 24 N. Y. 430 ; Pennsylvania Railroad Co. v. Ogier, 11 Casey, 60; Pennsylvania Rail- road Co. V. McTighe, 46 Penn. 316. ' Butterfield v. Forrester, 11 East, 60. " Bridge v. Grand Junction Railway Co. 3 M. & W. 246 ; and see Gough V. Bryan, 2 lb. 770. CHAP. VIII.] COLLISION. — MUTUAL NEaLIQENCE. 431 case, where an ass was fettered and turned upon a highway to graze, and there run over by the defend- ant in driving too fast, it was held that the mere fact of putting the ass upon the road would not bar the plaintiff of his action. " For," as was observed by the same Judge, "although the ass may have been wrongfully there, still the defendant was bound to go along the road at such pace as would be likely to prevent mischief Were this not so, a man might justify driving over goods left on a public highway, or even over a man lying asleep there, or the pur- posely running against a carriage going on the wrong side of the road."^ In both these cases, therefore, the rule in Butterfield v. Forrester, though approved by the Court, was not approved without qualification. From the first it would seem that the rule does not hold good where the plaintiff, though negligent, could not, by the exercise of ordinary care, have avoided the injury. From the second it would seem that though the fault of the plaintiff concurred with that of the defendant to produce the injury, yet the plaintiff may be entitled to recover under circumstances of peculiar negligence on the part of the defendant, though no precise criterion is indicated by the Court by which to determine when such circumstances exist. The rule has also been further qualified by an exception in favor of the plaintiff in cases where, though there has been mutual neglect, the evidence shows an intentional wrong on the part of the defendant.^ ' Davies v. Mann, 10 M. & W. 545 ; ante, § 290 ; Lane v. Bryant, 9 Gray, 245. 2 Brownell v. Flagler, 5 Hill, 282 ; Clay v. Wood, 5 Esp. 44 ; Kathbun V. Payne, 19 Wend. 399. 432 LAW OF HIGHWAYS. [CHAP. VIII. § 346. The first of these exceptions, suggested by Parke, B., is now unquestioned law; the second, though occasionally recognized in subsequent cases, does not seem to have shaped itself into any definite formula, and has been frequently overlooked, if not intentionally disregarded.^ Thus in Hartfield v. Eoper,^ the plaintiff", who sued by his next friend, was a child of about two years of age, and was standing or sitting in the beaten track of a public highway, with no person near him. The defendant was driving a sleigh and horses upon the same road, and before the child was perceived the horses passed over him. The sleigh was at the time of the injury descending a hill, at the foot of which was a bridge, and the child was in the road six or eight rods from the bridge. The course of the road was such that in descending the hill there was a fair view of the road beyond the bridge. A daughter of one of the defend- ants, however, testified that she did not perceive the child, although she sat on the side of the sleigh which passed over the track in which was the child. The defendant had no sleigh-bells. The horses at the time of the injury were trotting, but not at great speed, and the parties in the sleigh were not convers- ing at the time of the accident. As soon as the child was discovered, the horses were stopped, and the sleigh prevented from passing over him. The jury found a verdict for the plaintiff" for five hun- dred dollars. Upon a motion for a new trial, it was said by the Court, per Cowen, J. : " Was the plaintiff" guilty of negligence ? His counsel seemed to think ' Rathbun v. Payne, 19 Wend. 399 ; and see cases cited note 2, supra. ^ Hartfield v. Koper, 21 Wend. 615. CHAP. VIII. J COLLISION. MUTUAL NEGLIGENCE. 433 . he made a complete exception to the general rule demanding care on his part, by reason of his extreme infancy. Is this indeed so ? A snow path in the public highway is among the last places in this country to which such a small child should be al- lowed to resort, unattended by any one of suitable age and discretion. The custody of such a child is confided by law to its parents, or to others standing in their place ; and it is absurd to imagine that it could be exposed in the road as this child was, with- out gross carelessness. It is the extreme of folly even to turn domestic animals upon the common highway. To allow small children to resort there alone is a criminal neglect. It is true that this confers upon travellers no right to commit a volun- tary injury upon either ; nor does it warrant gross neglect; but it seems to me that to make them liable for anything short of that would be contrary to law. The child has a right to the road for the purposes of travel, attended by proper escort. But at the tender age of two or three years, and even more, the infant cannot personally exercise that degree of discretion which becomes instinctive at an advanced age, and for which the law must make him responsible, through others, if the doctrine of mutual care between parties is to be enforced at all in his case. It is perfectly well settled that if a party, injured by a collision on the highway, has drawn the mischief on himself by his own neglect, he is not entitled to an action, even though he be lawfully in the highway pursuing his travels,^ which ' Burcle u. N. Y. Dry Dock Co. 2 Hall, 151. A child injured by neg- ligence of another is not barred of its remedy by the mere fact that the 28 434 LAW OF HIGHWAYS. [CHAP. THI. can scarcely be said of a toppling infant suffered by his guardians to be there, either as a traveller or for the purpose of pursuing his sports. The application may be harsh when made to small children, as they are known to have no personal discretion. Com- mon humanity is alive to their protection, but they are not therefore exempt from the legal rule, when they bring an action for redress ; and there is no other way of enforcing it, except by requiring due care at the hands of those to whom the law and the necessity of the case has delegated the exercise 'of discretion." " The illustration sought to be derived from the law in respect to the injury of animals turned or suffered to stray into the street, does not strike me as fortunate. If they be there without any one to attend and take care of them, that is a degree of carelessness in the owner which would preclude his recovery of damages arising from mere inattention on the side of the traveller. Indeed it could rarely be said that animals entirely unattend- ed are lawfully in the roads or streets at all. They may be driven along the road by the owner or his servants; but if allowed to run at large for the purpose of grazing, or any other purpose, entirely unattended, and yet travellers are to be made ac- countable in all cases of collision, such a doctrine might supersede the use of the road, so far as com- fort or expedition is concerned.'^ The mistake lies negligence of its parents in suffering it to wander to the place of danger substantially contributed to produce the injury. Daley v. Norwich and Worcester Railroad, 26 Conn. 591. ' As regards the application of this principle to cattle unlawfully upon a highway, see the Tonawanda Railroad Co. v. Hunger, 5 Denio, 255, and Tower v. Providence and Worcester Railroad Co. 2 R. I. 404, in which CHAP. VIII.] COLLISION. — MUTUAL NEGLIGENCE. 435 in supposing the injury to be wilful, to arise from some positive act, or to be grossly negligent. Such an injury is never tolerated, be the negligence on the side of the party injured what it may.^ But where it arises from mere inadvertence on the side of the traveller, he is always excused by the law, on showing that there was equal or greater neglect on the side of his accuser. It is impossible to say, then, that the accuser was not himself the author of the injury which he seeks to father on another." § 347. In the preceding case, however, the rule seems to have been pushed to a somewhat question- able extreme. In Lynch v. Nurdin,^ at any rate, it was much less rigorously applied. In that case, the defendant's servant left a horse and cart unattended in a public street, and the plaintiff, a child under seven years of age, during the driver's absence, climbed on the wheel, and other children urged for- ward the horse, whereby the plaintiff was thrown to the ground and the wheel fractured his leg. The Court left it to the jury to say, first, whether it was negligence in the defendant's servant to leave the horse and cart for half an hour, in the manner de- it was held that a railroad company is not liable for negligently running an engine upon and killing the cattle of the plaintiff, which had unlaw- fully come upon the track of the railroad, though there was no physical obstacle to prevent their entry. The Court say the company are not lia- ble for want of care towards such cattle, because they owe them no care ; and that the incapacity of the cattle to exercise care on their part makes no difference, inasmuch as the care required is in the party, and not in his property. In support of this doctrine the following cases are cited ; Blythe V. Topham, Cro. Jac. 158 ; Bush v. Brainard, 1 Cowen, 78 ; Sarck V. Blackburn, 4 Car. & Payne, 297 ; Blackman v. Simmons, lb. 138 ; and see post. 1 Ante, § 345. ' Lynch v. Nurdin, 1 Ad. & El. (N. S.) 28 ; 41 Eng. C. L. 422. 436 LAW OF HIGHWAYS. [CHAP. THI. scribed ; and secondly, whether that neghgence occa- sioned the accident. On a motion for a new trial for error in the instructions of the Court, Lord Den- man, C. J., remarking upon Lord EUenborough's doctrine in Butterfield v. Forrester, said, that ordi- nary care must mean that degree of care which may reasonably be expected from a person in the plain- tiff's situation. Supposing, he proceeds to say, the plaintiff to have been in fault, "but to this extent, that he merely indulged the natural instinct of a child in amusing himself with the empty cart and deserted horse, then we think that the defendant cannot be permitted to avail himself of that fact. The most blamable carelessness of his servant hav- ing tempted the child, he ought not to reproach the child with yielding to that temptation. He has been the real cause of the mischief He has been deficient in ordinary care ; the child, acting without prudence or thought, has, however, shown these qualities in as great a degree as he could be ex- pected to possess them. His misconduct bears no proportion to that of the defendant which produced it." And it was also held, that the co-operation of third parties to the injury was not a defence, if the means of injury were negligently left where it was extremely probable that they would be set in mo- tion.^ ' In support of this decision tlie Court cited Ilott v. Wilkes, 3 B. & Aid. 304 ; 5 E. C. L. 295 ; Deane v. Clayton, 7 Taunt. 489 ; 2 E. C. L. 183 ; Bird ii. Holbrook, 4 Bing. 628 ; 15 E. C. L. 91, relying particularly upon the latter case. See Marriott v. Stanley, 1 Man. & Gr. 568 ; 39 E. C. L. 559, note (a), p. 561, where the doctrine announced in Butterfield v. Foster is a good deal criticised ; Jay v. Whitfield, 3 B. & Aid. 308, note ; Jordin (.. Crump, 8 M. & W. 782; Ranch v. Lloyd, 31 Penn. (State) 358 ; Pennsylvania Railroad Co. v. Kelly, 31 Penn. (State) 372. CHAP. Vin.] COLLISION. — MUTUAL NEGLIGENCE. 437 § 348. In the case of Eobinson v. Cone,^ Eedfield, J., in adopting the rule as laid down in Lynch v. Nurdin, pronounced the case of Hartfield v. Eo- per altogether at variance with it, and far less sound in its principles, and infinitely less satisfactory to the instinctive sense of reason and justice. In that case, the plaintiif was a child more than three months be- low the age of four years, whose father sent him to school about a fourth of a mile south of the foot of the hill where the accident occurred. At the time of the injury the plaintiff was sliding along down the hill, lying upon his face upon his hand-sled, his feet projecting back of the sled, arid his left leg lop- ping off the sled, towards the east, his head being turned towards the west, and about two feet from the edge of the road, where was a bank rising ab- ruptly about two feet or more. The defendant was coming into the village with a load of bark, on a sled drawn by two horses, and driving down the hill at a very rapid pace. He saw the plaintiff some distance before he reached him, but at first thought him a dog, as he said, and, after he knew it was a boy, sup- posed that he would get out of the way ; but when he perceived he would not, attempted to stop his team, but found it impossible, and then made a des- perate effort to pass the boy on the east side, where there was some twenty feet or more of clear space, smooth and well trod. The fore runners, there being two sets, passed the boy without injury ; but the hin- der runners, not following precisely in the track of the others, crossed the plaintiff's left leg, fracturing it so severely that amputation became necessary. A 1 Robinson v. Cone, 3 Law Reporter (N. S.) 444. 438 LAW OP HIGHWAYS. [CHAP. THI. verdict given for the plaintiff with heavy damages was, upon motion for new trial, affirmed. § 349. In Wynn v. AUard,^ in Pennsylvania, it appeared that the plaintiff was walking in the mid- dle of one of the most frequented streets of Wilkes- barre, in that State, where there were sidewalks for footmen, when the defendant, in driving his horses in a sleigh rapidly along, ran against him and injured him, for which he brought an action of trespass. On the trial, the plaintiff offered to prove that at the time of the occurrence the defendant was intoxicated. The defendant objected to the evidence, and the Court rejected it, and sealed a bill of exceptions at the instance of the plaintiff. The Court below in- structed the jury, that if the injury done to the plaintiff was a consequence of the negligence of the defendant alone, he was entitled to recover damages j but if it was occasioned partly by the negligence and carelessness of both parties, the plaintiff was not en. titled to recover. This direction, and the rejection of the evidence mentioned, were the subjects of the errors assigned. Per Curiam : " The direction was right ; and, if there was error, it was on the part of the jury. The principle that there is no recourse by action for an injury, which is the consequence of neg- ligence on both sides, was laid down by the Court in Simpson v. Hand,^ which was a case of negligence in the case of ships. But the law of the particular case was laid down in this instance by the court below, in exact conformity to the direction of Mr. Justice Al- derson in Pluckwell v. Wilson,^ that a person who ' Wynn v. AUard, 5 Watts & S. 544. " Simpson v. Hand, 6 Whart. 320. ' Pluckwell V. Wilson, 5 Car. & Payne, 379. CHAP. VIIl] collision. — MUTUAL NEGLIGENCE. 439 leaves the ordinary side of the road is bound to use more care and diligence, and to keep a better look- out to avoid concussion, than would be requisite if he were to confine himself to the proper side. It was for the jury, therefore, to say, under all the circum- stances, whether the plaintiff was chargeable with negligence, having left the sidewalk, in not looking behind as well as before, to avoid contact with per- sons riding or driving in the middle of the street. If he was, the defendant would be answerable only for negligence so wanton and gross as to be evidence of voluntary injury. But the evidence of intoxica- tion ought to have been received ; not because the le- gal consequences of a drunken man's acts are differ- ent from those of a sober man's acts, but because, where the evidence of negligence is nearly balanced, the fact of drunkenness might turn the scale, inas- much as a man partially bereft of his faculties would be less observant than if he were sober, and less re- gardful of the safety of others. For that purpose, but certainly not to inflame the damages, the evidence ought to have been admitted." Judgment was re- versed, and a venire de novo awarded. § 350. From these cases, it is evident that the principle laid down in Butterfield v. Forrester, though generally applicable, is not of such an inflex- ible character that it will not yield in particular cases, where its application would amount to the encouragement of gross carelessness, or wanton and heedless negligence, or to impunity for intentional wrong. In Kennard v. Burton,^ Shepley, J., after a somewhat extended review of the authorities, comes ' Kennard v. Burton, 25 Maine, 39. 440 LAW OF HIGHWAYS. [CHAP. Vni. to the conclusion that the correct rule is, " that, if the party by want of ordinary care contributed to produce the injury, he will not be entitled to re- cover ; but if he did not exercise ordinary care, and yet did not by the want of it contribute to produce the injury, he will be entitled to recover." The lat- ter clause of this statement is undoubtedly correct ; but the preceding clause, though generally correct, is clearly not so without important exceptions. To ascertain the principle which governs these excep- tional cases is by no means an easy task, inasmuch as the Courts themselves, while apparently coming to .very just conclusions, have not always given the most satisfactory reasons for them. In some of the cases, undoubtedly, one party may have been more in fault than another, yet mere preponderance of negligence has never been recognized as the test of liability, and juries directed to return their verdicts in favor of the least guilty party ; ^ in other cases the danger and consequent injury on the one side from an equal degree of negligence may have greatly exceeded that upon the other, yet no Court has ever suggested that the magnitude of the danger would excuse any want of ordinary care in avoiding it. In either of the cases supposed, to give a verdict in fa- vor of the injured party would be to proclaim a pre- mium iipon carelessness. But, in nearly all the cases of exceptions to the rule laid down in Butter field v. Forrester, it appears from the facts stated, or from expressions casually dropped by the Judges, that ' But see Peoria Bridge Co. v. Loomis, 20 111. 2.S5 ; Galena and Chicago Union Railroad v. Jacobs, 20 111. 478 ; Chicago, &c. Railroad Co. u. Dew- ey, 26 111. 255. CHAP. VIII.] COLLISION. — MUTUAL NEGLIGENCE. 441 there was present one element, which, though not an- nounced as the basis of the decisions, cannot have failed to have greatly, if not controllingly, influenced the judgments of the Courts, viz. gross carelessness (for, in the case of a fettered brute, or a child of ten- der years, not to be careful is little less than being grossly careless) or inexcusable inattention on the part of the defendant. If this be the true explanation of these exceptional cases, as is submitted, then the rule may be stated thus : If there be mutual negli- gence, and an injury ensues, the party injured will not be entitled to recover, except where he could not, by the exercise of ordinary care, have avoided the injury, or where the injury is the result of an in- tentional wrong on the part of the defendant, or of such gross negligence and want of care as in law is equally culpable.'^ § 351. Whether, by the operation of this rule, the injured party shall be barred of his action, is a ques- tion of fact to be determined in each particular case by the jury under the direction of the Court.^ Neg- • Ante, § 290. ' It is not negligence as matter of law to allow a child between six and seven years old to be alone in the streets of New York. It is a ques- tion for the jury under the circumstances. Oldfield v. New York and New Haven Railroad Co. 3 E. D. Smith, 103. To allow a child of four years of age to go at large in the streets is negligence, on the part of the parents or protector, such as to prevent recovery for injuries sustained. Morgan v. Brooklyn, &c. Kailroad, 36 Barb. 230. So to allow a child of two years to cross a street traversed by a horse railroad. Wright v. Maiden Railroad Co. 4 Allen, 283. So of a child two years and four months old allowed to return unattended to his home across the street, and thirty feet further down, under direction from his father to return directly home. Callahan «. Bean, 9 Allen, 401. In Lovett t). Salem and South Danvers Railroad Co.' 9 Allen, 557, a boy ten years old, having •wrongfully got upon the car, was injured in getting off from the front 442 LAW OF HIGHWAYS. [CHAP. VIII. ligence, however, to have this effect, must be negli- gence existing at the time of the injury, not such as the plaintiff may have been guilty of at some pre- vious period. In Munroe v. Leach,^ it appeared that the parties were the drivers of two coaches, belong- ing to rival lines, running from Eoxbury to Boston. In the course of the trip on which the collision oc- curred, they had mutually attempted, several times, to intercept each other's progress by cutting each other off, as they had before been in the habit of doing. Just previous to the collision, the plaintiff's driver attempted to pass the defendant, who there- upon pressed upon him, and the plaintiff's driver, though he tried to avoid the danger all he could, was driven into a snow-drift, and one of his horses lamed. It was contended that the action could not be maintained, as the plaintiff's driver was himself in fault, as he and the defendant were mutually running and cutting each other off, to prevent each other going ahead. This view was adopted by the presiding Judge, who thereupon dii-ected the jury to give a verdict for the defendant. On a motion for a new trial, the Court were of the opinion, that this direction assumed a fact as proved which should have been left to the jury on the evidence, and for this consideration adjudged that the plaintiff was entitled to a new trial. All that is proved, it was platform while it was in motion, having been told so to do by the driver, and was held entitled to recover of the company for the injury. And the Court say they cannot decide, upon a bill of exceptions, that permit- ting a boy ten years of age to be in the street after dark is such negli- gence as to prevent him from recovering for an injury resulting from his being wrongfully compelled to leave the car while in motion, and that to a child so young the command was equivalent to compulsion. ' Munroe v. Leach, 7 Met. 274. CHAP. VIII.] COLLISION. — MUTUAL NEGLIGENCE. 443 remarked, is that the plaintiif's driver had been in fault ^^reviously to the transaction complained of. But this was no justification of the defendant in the commission of the like fault. And it appears by the evidence reported, that the injury complained of was solely caused by the misconduct of the de- fendant, the plaintiff's driver trying all he could to avoid it.'^ § 352. Where the plaintiff^ in an action of tres- * pass for driving the defendant's carriage against the plaintiff's and oversetting it, thereby wounding the plaintiff, claimed that the injury occurred entirely through the negligence of the defendant, without any negligence on the plaintiff's part ; and also, that, if the plaintiff was guilty of negligence, the defend- ant drove his carriage against the plaintiff's by de- sign or gross negligence, and thereby caused the injury ; and that in either of these events, the plain- tiff was entitled to recover ; and the defendant did not claim to justify himself, on the ground that the plaintiff was guilty of any negligence, at the time when the collision took place, but by a course of misconduct pursued by the plaintiff on the road, previous to the collision, and at some distance from the place where it happened ; which misconduct of the plaintiff could not possibly have concurred in directly producing the injury complained of; it was held, that the Court might properly omit to charge the jury as to the effect of negligence on the part of the plaintiff^ So in an action against a railway ' As regards the application of this rule to injuries occasioned by de- fects and obstructions in highways, see ante, Chap. VI. § 290 el seq. ' Churchill v. Koseback, 15 Conn. 359. 444 LAW OF HIGHWAYS. [CHAP. 7III. company for so negligently managing and lighting their station that the plaintiff, being a passenger by the railway, was thrown down while on his way to the carriages ; where the defendants' counsel, at the trial, rested his defence on the ground that the acci- dent was entirely owing to the want of ordinary care on the part of the plaintiff, and that there was no negligence on the part of the defendants ; the Judge having left it to the jury to say whether the accident occurred from the alleged negligence of the defendants, or whether it was entirely the plain- tiff's own negligence which caused it, it was held, on motion for a new trial for misdirection, on the ground that the Judge ought to have told the jury that if the plaintiff contributed to the injury the defendants were entitled to the verdict, although they might have been guilty of negligence ; that the defend- ants were not entitled to a new trial, the issue on which they rested their defence having been left to the jury.-^ § 353. The right to go. upon adjoining Lands where the Highway is impassable. In England, the rule of law is well settled, that where a highway becomes obstructed and impassable from temporary causes, a traveller has a right to go extra viam upon adjoining land, without being guilty of trespass.^ In this country the same principle has often been incidentally recognized and treated as well settled ' Martin v. The Great Northern Railway Co. 30 Eng. L. & Eq. 473. " Henn's case, W. Jones, 296; 3 Salk. 182; 1 Saund. 323, note 3; Absor V. French, 2 Show. 28 ; Young v. — — , 1 Ld. Raym. 725 ; Tay- lor V. Whitehead, 2 Douglas, 745 ; BuUard v. Harrison, 4 M. & S. 387, 393; 2 Bl. Com. 36. CHAP. VIII.] TRAVEL. — EXTRA VIAM. 445 law/ and in the case of Campbell v. Eace has been . directly affirmed.^ Highways being established for public service, and for the use and benefit of the whole community, a due regard for the welfare of - all requires, that, when temporarily obstructed, the right of travel should not be interrupted. And this right, therefore, rests upon the maxim of the com- mon law, that where public convenience and neces- sity come in conflict with private right, the latter , must yield to the former. Its exercise may also be justified upon the familiar doctrine that inevitable necessity or accident may be shown in excuse for an alleged trespass. If a traveller in a highway, by unexpected and unforeseen occurrences, such as a sudden flood, heavy drifts of snow, or the falling of a tree, is shut out from the travelled paths, so that he cannot reach his destination without passing upon adjacent lands, he is under a necessity so to do ; that is to say, the act to be done can only be accomplished in that way. Such a temporary and unavoidable use of private property must be re- garded as one of those incidental burdens to which all property in a civilized community is subject.** § 354. In the case above referred to,* it was urged in argument,, that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compen- sation to the owner. But it was remarked by the Court in reply : " In such an accidental, occasional, and 1 Holmes v. Seeley, 19 Wend. 507 ; Williams u. Safford, 7 Barb. 309 ; Newkirk v. Sailer, 9 lb. 652 ; 3 Kent, Com. 424; ante,^ 5. ^ Campbell v. Race, 7 Cush. 408. = Ibid. 411, 412. * Campbell v. Kace, supra. 446 LAW OF HIGHWAYS. [CHAP. VIII. temporary use of land can be regarded as an appro- priation of private property to public use, entitling the owner to compensation, which may well be doubt- ed, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of tem- porary and impassable obstructions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be assumed that the right to the use of land adjoining the road was taken into consideration, and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned." And it was also held, that this right was not impaired by the duty im- posed upon towns, in this country, to keep their highways in suitable repair, and to be liable for the damages occasioned by the want of such repair. § 355. Having its origin in necessity, this right, it has been said, must be limited by that necessity ; cessante ratione, cessat ipsa lex. " Such a right is not to be exercised from convenience merely, nor when, by the exercise of due care, after notice of obstruc- tions, other ways may be selected and the obstruc- tions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident, aris- ing from sudden and recent causes which have occa- sioned temporary and impassable obstructions in the highway. What shall constitute such inevitable ne- cessity or unavoidable accident must depend upon the various circumstances attending each particular case. The nature of the obstruction in the road, the length of time during which it has existed; the vicin- CHAP. VIII.] TRAVEL UPON TURNPIKE ROADS. 447 ity or distance of other public ways, the exigencies of the traveller, are some of the many considerations which would enter into the inquiry, and upon which it is the exclusive province of the jury to pass, in or- der to determine whether any necessity really exist- ed, which would justify or excuse the traveller." ^ 2. Travel upon Turnpike Roads. § 356. Travel upon turnpike roads is regulated by the same rules and principles as travel upon ordi- nary roads and streets. It is chiefly distinguished from the latter kind of travel by the fact that it is burdened with tolls. Toll, in the restricted sense in which it is here used, is the price of the privilege of travel upon this particular species of highway. At common-law, there are two sorts of toll, viz. toll thorough and toll-traverse. Toll-traverse is the price paid for passing over the private soil of another, and may be claimed by prescription, the license to pass being the implied consideration for the claim.^ Toll thorough is the price for passing upon a public high- way, and rests upon the principle which governs every grant, viz. that he who receives it does or did some- thing as. an equivalent to him who pays it. It is strict- ly a quid pro quo ; and, to support a prescription for this species of toll, it is not enough to prove an imme- morial usage to take the toll, without also showing the consideration upon which it rests.^ In Truman v. ^ Per Bigelow, J., in Campbell v. Kace, supra ; State v. Northumber- land, 44 N. H. 628. * 7 Com. Dig. 478, Toll (D., a) ; Cro. El. 711 ; James v. Johnson, 2 Mod. 143; Pelham v. Pickersgill, 1 Term, 660. * 7 Com, Dig. 477, Toll (C) ; Haspurt v. Wills, 1 Mod. 47; Warren V. Prideux, lb. 104; Smith v. Shepherd, Cro. El. 710; 3 Dane, Abr. 178, c. 76, art. 11 ; 15 Petersdorf, Abr. 62. 448 LAW OP HIGHWAYS. [CHAP. VIH. Walgam/ the defendant pleaded, to an action of tres- pass, for stopping the plaintiff's wagon on the high- way in Gainsborough, prescription for toll through the streets of Gainsborough, in consideration of repairing divers streets there ; and the plea was adjudged badj because it did not say that the defendant repaired all the streets; and, for anything that appeared, the plaintiff might have been passing through a street which the defendant did not repair. " Courts," it was observed, " are exceeding careful and jealous of these claims of right to levy money upon the subject ; these tolls began and were established by the power of great men." But if a person, claiming a toll for passing over an highway, can show that the liberty of passing over the soil, and the taking of toll for such passage, are both immemorial, and that the soil and the tolls were, before the time of legal memory, in the same hands, though severed since, it will be presumed that the soil was originally granted to the public in consideration of the tolls, and such original grant is a good consideration to support the demand.^ § 357. In this country, it has been held in Vermont, that the enjoyment for more than twenty years with- out molestation, of a right to take toll upon a public highway, is equivalent to an express grant so to do. " Indeed," said the Court, " under special circum- stances, the dedication of private property to public use, or the abandonment of a right to use such proper- ty by the public, and its surrender to private use, will be presumed in a much less time than the usual term • Truman v. Walgam, 2 Wils. 296. ' Pelham «. Pickersgill, 1 Term, 660; Yarmouth v. Eaton, 3 Burr. 1402. CHAP. VIIlJ travel UPON TURNPIKE ROADS. 449 of prescription." ^ In Massachusetts, hoM^ever, it' has been held, that if a turnpike road has not been law- fully laid out, the allowance of it by the Common Pleas, and the existence of it as a turnpike road, de facto, for nearly twenty years, gives no right to de- mand toll, " if," say the Court, " such a right can, by any length of time, be established." ^ But in this country, and, indeed, in England, this right is almost universally granted by statutory enactments, and can be exercised only in strict compliance with the terms of the grant.^ If there be any ambiguity in the lan- guage of such grant, it will be construed rather in favor of the public than of the grantee.* And, inas- much as this right depends upon the varying provis- ions of special statutes, each statute being encumbered with multitudinous qualifications designed to sub- serve the wants and the policy of particular localities, the cases on this subject necessarily relate rather to the construction of these statutes than to an exposi- tion of principles, and are not, therefore, of sufficient general interest to justify more than a merely cur- sory consideration. § 358. Tolls are not demandable for travelling on > Barton Turnpike Co. v. Bishop, 11 Vt. 198. ■^ Fales V. Whiting, 7 Pick. 225. ^ " The imposition of toll," says Wellbeloved, " to be applied to the maintenance of a road, is the revival of an old principle, but with some difference in its adaptation to practice. Under the ancient system of tenures, the lord of the soil frequently claimed the privilege of receiving tolls from all who travelled along his highway ; nor was this esteemed a mere bounty, for he was liable, iu consideration of such toll, to keep the way in good order, and, in some countries, even to defend the passengers from depredations. There was an instance in France, where the lord was fined for permitting a merchant to be robbed upon his highway." Wellbeloved on Highways, p. 252. * Post, § 368f 29 450 LAW OF HIGHWAYS. [CHAP. YIII. turnpike roads between two gates, without passing a gate, or unless the gate be shunned and the road travelled again ; ^ though it has been held that even if travellers travel the road until they come near the gate, and then turn aside into another road, they are liable to pay the toll.^ In New York, it is enacted, that " every person who, to avoid the payment of the legal toll, shall, with his team, carriage or horse, turn out of a turnpike road, or pass any gate thereon, on ground adjacent thereto, and again enter on such road, shall, for each offence, forfeit the sum of five dollars to the corporation injured." Under this act, if a traveller turns off at a place little more than half a mile from the gate, it will be held a turning off on " ground adjacent to the gate," within the meaning of the act. And it makes no difference that the person, after turning off, travels upon an old highway for the distance of six or seven miles before again entering the turnpike road, nor that other persons have been in the habit of doing so ; the question being, whether he turned off, bona fide, or with a view to avoid paying toll.* But, if, in such a case, the party does not again re-enter the turnpike road, he is exempt from toll, though his purpose in turning off was to evade its payment.* ' Lexington and Georgetown Turnpike Co. v. Redd, 2 B. Mon. 31 ; per Williams, C. J., in Fowler v. Pratt, 11 Vt. 381 ; Centre Turnpike Co. v. Vandusen, 10 lb. 197. ^ Fitoh y. Lothrop, 2 Root, 524. ^ Carrier v. Schobarie Turnpike Co. 18 Johns. 56 ; The Watervliet Turnpike Co. v. M'Kean, 6 Hill, 616 ; 1 Rev. Stat. 588, § 55. * Centre Turnpike Co. v. Vandusen, 10 Vt. 197. In New Hampshire, it has been held, that case lies against the selectmen of a town for laj'ing out a highway, merely for the purpose of enabling travellers to evade the payment of toll at a turnpike gate. But if the public coavenience should / CHAP. Vm.] TRAVEL UPON TURNPIKE ROADS. 451 §359. Exemptions from the Payment of Toll. Clauses in statutes, conferring an exemption from the payment of toll, are construed most liberally in favor of the immunity. Thus, where the toll pre- scribed in the charter of a turnpike company was twenty-five cents for a four-wheeled pleasure-car- riage, and for a wagon ten cents, it was held that a vehicle, which was a four-wheeled pleasure-carriage and a wagon, was subject to the toll of ten cents only.-' So it has been held, that an act, exempting carts, &c. loaded with manure, from toll, exempts them from toll if they are going empty to fetch man- ure.^ Exemptions in favor of husbandry are to be beneficially construed.^ ' An exemption in favor of persons going to and from mills comprehends saw- mills as well as grist-mills.* But an exemption in favor of persons going to and from a blacksmith's shop has been held to embrace only persons going with the express purpose of having work done in the shop.^ And an exemption in favor of the inhabitants of a particular town, going to market with the pro- duce of their farms, and returning from market, is per- sonal, and is waived, if the person carries, or brings back from the place of market, the goods of others, even though such goods constitute but a portion of his load.^ require that a road be laid out to a turnpike, it may lawfully be done, al- though it may enable passengers to evade the payment of toll. Propri- etors of the Third Turnpike Road v. Champney, 2 N. H. 199; Cheshire Turnpike v. Stevens, 10 N. H. 133. ' Turnpike Co. v. Freeman, 14 Conn. 85. ^ Harrison v. James, 2 Chitty, 547. " Hickinbotham v. Perkins, 3 Moore, 185. * Hearsey v. Pruyn, 7 Johns. 179. = Stratton v. Herrick, 9 Johns. 856; Stratton v. Hubbell, lb. 357. = Hearsey u.'Boyd, 7 Johns. 183 ; and see Passumpsic Turnpike Co. v. Langdon, 6 Vt. 546. 452 LAW OF HIGHWAYS. [CHAP. VIII. Individuals, or the inhabitants of a particular district, who have for more than twenty years been permitted to pass a turnpike gate toll free, may, it has been held, prescribe for a right so to pass, and an individ- ual so exempted, if denied permission to pass, would, it seems, be justified in passing forcibly, using, how- ever, no more force than would be necessary for such purpose.-' Contractors carrying the mails for the ' Panton Turnpike Co. v. Bishop, H Vt. 198. For' other American cases, as to exemptions in favor of persons going " on the ordinary domestic business of family concerns," see Green Mountain Turnpike Co. v. Hem- enway, 2 Vt. 512; Centre Turnpike Co. v. Smith, 12 Vt. 212; Kent v. Newburyport Turnpike, 4 Pick. 388 ; Medford Turnpike v. Torrey, 2 Pick. 538; Proprietors of the Second Turnpike v. Taylor, 6 N. H. 499; Newburgh and Cochecton Turnpike Co. v. Belknap, 17 Johns. 33. In favor of particular kinds of vehicles, Pardee v. Blanchard, 19 Johns. 442; Moss v. Moore, 18 lb. 128 ; Merrick v. Phelps, 5 Conn. 465; Tal- cott Mountain Turnpike Co. v. Marshall, 11 lb. 185; Turnpike Co. v. Freeman, 14 lb. 457 ; Housatonic Turnpike v. Frink, 15 Pick. 443 ; Turn- pike Co..u. Newland, 4 Dev. 463 ; Cincinnati, &c. Turnpike u. Neil, 9 Ham. 11 ; Mahon v. New York, &c. Kailroad Co. 24 N. Y. 658. Going to and from mill, Chestney u. Coon, 8 Johns. 150 ; Bates v. Sutherland, 15 lb. 510; supra, notes 3 and 4. For English cases in favor of persons passing several times in one day, Loaring v. Stone, S D. & E. 797 ; 2 B. & C. 575; Norris v. Prate, 10 Moore, 293 ; 3 Bingh. 41 ; Waterhouse v. ■ Keen, 4 B. & C. 200 ; Fearnley v. Mosley, 5 B. & C. 25 ; Fenton v. Swallow, 4 Ad. & El. 723 ; Jackson v. Curwen, 7 D. & R. 838 ; 5 B. & C. 31 ; Gray v. Shilling, 4 Moore, 371 ; Chambers v. William, 7 D. & K. 842 ; Williams v. Sanger, 10 East, 66 ; Hopkins t. Thorogood, 2 B. & Ad. 916 ; Niblet v. Potto w, 1 Bing. 81. In favor of husbandry, Rex v, Adams, 6 M. & S. 52 ; Harrison v. James, 2 Chitty, 547 ; Pratt v. Brown, 8 Car. & Payne, 244 ; King v. Gough, 2 Chitty, 655 ; Chambers v. Eaves, 2 Campb. 393; Hickinbotham v. Perkins, 3 Moore, 185; Harrison v. Brough, 6 Term, 706 ; Stevens v. Duffts, 4 Burr. 2258 ; Camden Turn- pike Co. V. Fowler, 4 Zabris. 205 ; Nicholson v. Williamstown, &c. Co. 4 Dutch. 142 ; Cummings v. Waring, 39 Barb. 630. Carriage of road ma- terials, Ormond v. Widdicombe, 2 B. & Aid. 49. Going to church, Lewis V. Hammond, 2 B. & Aid. 206. Merely crossing, Phillips v. Harper, 2 Chitty, 412; Mayor v. Oxenham, 5 Taunt. 340; Pope v. Langworthy, 1 Nev. & M. 647; 5 B. & Ad. 464; Bussey u. Storey, 4 B. & Ad. 98. Stage-wagon, The Queen v. Ruscoe, 8 Ad. & El. 386. CHAP. VIII.J TRAVEL UPON TURNPIKE EOADS. 453 United States are not, for that reason, exempt from tolls ;^ but the keeper of a toll-gate has no authority to stop the carriage in which the mail is carried, for a refusal to pay ; his only remedy for such refusal being by an action at law.^ § 360. The Establishment of Toil-Gates. A turn- pike company can collect its tolls only at the legally established gates. And it has been held, that, where a power given to a turnpike company to erect toll- gates within certain limits, at their discretion, has been once exercised, the power is at an end ; and the company cannot, without some strong and manifest necessity, change the local situation of the gates which have been once erected, merely to suit their own convenience ; ^ and, if they do make such change, they have no right to collect tolls at the removed gates.* Nor can the power to make such changes be acquired by repeated removals during a period of nearly forty years, and the- acquiescence of the pub- lic.^ But a company, having by its charter authority to erect "so many gates or turnpikes as may be necessary to collect their tolls," may increase the number of gates originally established, and change their situation from time to time, provided the gates are not placed in any situation prohibited by the ' Dickey v. Maysville and Lexington Turnpike Co. 7 Dana, 113; Proctor V. Crozier and Marshall, 6 B. Monr. 269 ; Turnpike Co. v. New- land, 4 Dev. 463 ; Newland v. Buncombe Turnpike Co. 4 Ired. 372 ; The Derby Turnpike Co. v. Parks, 10 Conn. 522. 2 Hopkins v. Stockton, 2 W. & Serg. 163. ' Griffin V. House, 18 Johns. 397; Hartford and Dedham Turnpike Co. V. Baker, 17 Pick. 432; State v. The Norwalk and Danbury Turn- pike Co. 10 Conn. 157. But see Fowler v. Pratt, 11 Vt. 369. * Turnpike Co. v. Hosmer, 12 Conn. 361. ' State V. Norwalk and Danbury Turnpike Co. 10 Conn. 157. 454 LAW OF HIGHWAYS. [CHAP. VHI. charter.^ And they may be so erected as to intersect and stop an old highway, provided they are erected as prescribed by the act, which is to be considered as so far controlling the use of the old road.^ A company, authorized to erect gates at such places as they see fit, and to demand tolls at certain rates, for every ten miles, and in the same proportion for a shorter distance, may demand tolls according to the distances between the gates or turnpikes on the road ; and are not limited to the distance travelled by the persons from whom tolls are demanded.^ § 361. By a statute in New York, it is provided, that the location of a toll-gate may be changed, by a certain course of proceeding therein prescribed, when- ever the commissioners of the town in which the toll-gate may be located, or a majority of them, " shall be of the opinion that the location of such gate is unjust to the public interest hy reason of the prox- imity of diverging roads, or for other reasons." In a proceeding under this statute, to change the loca- tion of a toll-gate, it was held, that there is no pro- ' The Cheshire Turnpike Co. t>. Stevens, 10 N. H. 133. ' Farmers' Turnpike Road v. Coventry, 10 Johns. 389. " Mallory v. Austin, 7 Barb. 626 ; Stewart v. Rich, 1 Caines, 182 ; The People v. Kingston Turnpike Co. 23 Wend. 193. As to the con- struction of statutory provisions imposing penalties upon toll-collectors for an abuse of their office, by shutting the gates after they have been commanded by the proper authorities to be thrown open, or by exacting toll from persons who are exempt from the payment of toll, see Trow- bridge V. Baker, 1 Cow. 251 ; Williams v. Smith, 6 lb. 166 ; Jones v. Estis, 2 Johns. 379 ; Conklin v. Elting, Ibid. 410 ; Norval u. Cornell, 16 Johns. 73. The Madison, Watertown, and Milwaukee Plank Road Co. are authorized by the act to take tolls for the distance actually travelled without reference to the distance between the toll-gates ; and travellers are required to report the distance travelled. Madison, &c. Plank Road Co. V. Reynolds, 3 Wis. 287. CHAP. VIII.J TRAVEL UPON TUKJSfPIKE ROADS. 455 priety or justice in allowing a company to make a plank-road or turnpike road on a main thoroughfare leading to a large village, for the distance of seven- eighths of a mile, and to collect tolls for that distance of all persons travelUng on such thoroughfare ; where the place selected for such road is that part of the thoroughfare most contiguous to the village, with which a large number of roads have united and added their travel to the piece of road over which the plank or turnpike road has been constructed.^ § 362. In Connecticut, a turnpike company, in- corporated in 1799, were authorized, by their charter, to erect and keep up turnpike gates on their road. In 1818, the company erected a gate on their road, with upright posts, and a cross-beam over the gate, supporting a roof twelve feet six inches above the travelled path. "When the charter was granted, and the gate established, it was usual to erect turnpike gates with cross-beams of this height. In June, 1833, a traveller came to the gate in question, with a load of clocks, placed upright in three tiers, the greatest height of the load being thirteen feet above the trav- elled path, and higher than such loads usually are. He paid the toll, and the gate-keeper opened the gate in the usual way; but the height of the load being greater than the cross-beam and roof, it could not pass imder them, and he thereupon forcibly re- moved them. In an action of trespass, brought by the turnpike company for this injury to their prop- erty, it was held that this was a reasonable exercise of their right, and, consequently, that the defendant was liable. > McAllister v. Albion Plank Road Co. 11 Barb. 610. 456 LAW Of HIGHWAYS. [CHAP. VIII. § 303. For the recovery of tolls due for travelling upon a turnpike road, the jsroper action is assumpsit.^ In actions of this nature, the declaration must sl^ow the plaintiff's right to demand the toll ; if, by statute, setting forth the statute, or parts thereof, by virtue of which the right is claimed ; if by prescription, alleging the prescription, and also the consideration or equivalent for the demand.^ If the corporation are authorized to stop and detain travellers until the tolls shall be paid, this is merely a cumulative rem- edy, and does not preclude the maintenance of an action for such tolls.^ It is no defence to such an action, that the company have neglected to comply with their charter by not exposing to view the rates of toll as therein prescribed; nor, on account stated, and acknowledged by the creditor, that the collector was irregularly appointed.* Neither can a defendant, in such a suit, show a forfeiture of the franchise, by way of defence, though he might, it seems, show that the franchise has expired by its own limitation, or has been surrendered, or that the act conferring it has been repealed.* And, where one claims to pass a toll-gate, toll free, by reason of any privilege or ' Proprietors of the Second Turnpike v. Taylor, 6 N. H. 499 ; Seward V. Baker, 1 Tenn. 616; Peacock v. Harris, 10 East, 104; Ayers v. The Turnpike Co. 4 lialst. 33 ; Chelsey v. Smith, 1 N. H. 22. ^ 3 Dane, Abr. 181, o. 76, A. 11 ; § 27. For precedent of declaration, see 2 Chit. Plead. (9th Amer. ed.) p. 51. ' Chelsey v. Smith, 1 N. H. 22. * Centre Turnpike Co. r. Smith, 12 Vt. 212; Peacock v. Harris, 10 East, 104. Erecting a toll-board, with the rates of toll in small Roman characters, but of a large size, was held to be a compliance with the Massa- chusetts statute, which required them to be in large or capital letters. Nichols V. Bertram, 3 Pick. 342. ' Adams v. Beach, 6 Hill, 271. CHAP. VIII.] TRAVEL UPON CANALS. 457 exemption, and is permitted to pass under such claim, he is not liable, in an action of assumpsit, for the toll, even when his claim of privilege is not well founded. There being no express promise to pay, in any event, the law will not, under such a state of facts, imply a promise.-' § 364. In addition to the common law remedy, turnpike companies are often further protected by penalties imposed upon such as forcibly pass their gates. Where such penalties are prescribed, the mere pa&sing a turnpike gate, and refusing to pay toll when demanded, is aforcibU passing, if the per- son so passing be liable to pay toll ; ^ but simply riding through, without payment, and without any force or violence, or refusal to pay, will not expose a traveller to the penalty.* And a person who is ex- empted, in respect of his business at the time of pass- ing, from the payment of toll, does not incur the penalty, though he shall refuse to pay toll, and forci- bly pass the gate without making known his business, or notifying the toll-gatherer of his exemption.* 3. Travel upon Canals. § 365. The doctrine of the common-law, that nei- ther party can recover for damage which has resulted from mutual negligence, has, in this country, been applied to canal boats. The "Canal Regulations," in New York, have adopted, for the regulation of 1 Centre Turnpike Co. v. Smith, 12 Vt. 212. " Pingry v. Washburn, 1 Aik. 264 ; Nichols v. Bertram, 3 Pick. 342. ' Columbia Turnpike Co. v. Wood worth, 2 Caines, 97. « Green Mountain Turnpike Co. v. Hemmenway, 2 Vt. 512 ; Pingry V. Washburn, 1 Aik. 264. 458 LAW OF HIGHWAYS. [OHAP. Vni. canal navigation, what is essentially the American law of the road ; that is, when boats meet on the canals, it is the duty of the master of each to turn out to the right, so as to be wholly on the right side of the centre of the canal.^ If, at the time of the collision, both boats, either through negligence or design, are near the centre of the canal, neither hav- ing turned sufficiently to the right, whatever injury results is the common fault of both parties, and the owners of each boat must submit to the injury done to them, in consequence of the mutual default. Every boat navigating the New York canals in the night-time, is also required to carry conspicuous lights on its bow ; and a want of lights on the bow, when it is so dark as to require them, is negligence.^ In Dygert v. Bradley, the defendant's boat, in navi- gating the canal, came violently into collision with that of the plaintiff, while lying to, near one of the locks, waiting her turn to pass. It was held, that it was not enough that the defendant managed his boat in a prudent and skilful manner, but that he was also bound to know, whether, from the state of the water in the canal at the time, and from the size of his boat and her being heavily laden, he could pass the plaintiff's boat without hazard ; and, if there were hazard, either not to have made the attempt to pass, or, having the control of the speed of his boat, to have proceeded so slowly and cautiously that no injury could have been produced from the collision.^ § 366. In the construction of a State law in New • 1 New York Rev. Stat. 248, § 154 ; lb. 695, § 1. ^ Kathburn v. Payne, 19 Wend. 399 ; Angell on Carriers, § 637. ^ Dygert v. Bradley, 8 Wend. 469. CHAP. VIII.] TRAVEL UPON CANALS. 459 York,^ it has been held, that, in passing the Erie and Champlain canals, freight-boats are bound to afford every facility for the passage of packet-boats, as well through the locks as elsewhere on the canal. And where a freight-boat, passing on the Erie Canal, was waiting for the emptying of a lock, when a packet- boat overtook her, it was held that the packet-boat should pass first. On request, the master of the freight-boat, refusing to consent to this, the master of the packet may use all necessary means to obtain the preference due to him, short of a breach of the peace ; as by pulling back the freight-boat, and forc- ing his own forward, doing no unnecessary damage to the freight-boat. Should the freight-boat be de- tained or injured, through the obstinate resistance of the master to the exercise of the right of preference of the packet, this is the fault of the former, for which he cannot recover damages against the master of the latter.^ § 367. Under the laws of Pennsylvania,^ where an ascending and descending boat have to pass each other, near to, or at a narrow place in the canal, con- structed for the purposes of inland navigation, it is the duty, as between themselves, of the ascending boat to wait at such distance from such narrow place as to permit the ascending boat to pass with safety ; and if any injury be sustained by the descending through a non-compliance of the law on the part of the ascending boat, the latter is liable in damages for such injury. It is, however, the right of persons ply- ' Passed April 13, 1820, sess. 43, c. 202, §§ 4 and 10. " Farnsworth v. Groot, 6 Cowen, 698. » Act of April 10, 1826, § 7. 460 LAW OF HIGHWAYS. [CHAP. Till. ing on the canal to stop their boats for a reasonable time to unlade, taking care to select an eligible place to do this, — that is, a place so wide that other boats can pass with safety, and to have their boat thrown close to the beam-side of the canal at both ends. And it has been held, that where the boat of a third party, thus properly moored to the bank of the canal, is concerned, and the ascending boat will not comply with the act of the assembly aforesaid, it is the duty of the persons having charge of the descend- ing boat to keep her at a proper distance, and under their control, so as to insure safety ; and if, through culpable negligence, or a want of due caution in passing each other a collision takes place, through and by which, the descending boat is driven against and staves in such third boat, the owners, or persons in charge of the descending boat, are answerable in damages for the injury sustained by such third boat. The dereliction of duty on the part of the ascending boat will not authorize the master of the descending boat to abandon his duty to a third person, and there- by subject him to loss ; though it seems, in the event of loss under such circumstances, the injured party is entitled to look for indemnity to the owners of both boats.^ § 368. Where a canal is made, pursuant to an act of the legislature, the right of the proprietors to take toll is derived entirely from the act, and is to be con- sidered as if there was a bargain between them and the public, the terms of which are expressed in the statute ; and the rule of construction is, that any ambiguity of the terms of the contract must operate ' Sheerer et al. v. Kissinger, et al. 1 Barr, 44. CHAP. VIII. J TRAVEL UPON CANALS. 461 against the company of adventurers, and in favor of the pubhc. The proprietors, therefore, can claim nothing which is not clearly given them by the act.^ § 369. By the ninth section of the charter of the Chesapeake and Delaware Canal Company, the com- pany are empowered to demand and receive certain tolls upon articles therein enumerated, and upon all other articles, not enumerated, in the same propor- tion ; and the charter proceeds : " Every boat or vessel which has not commodities on board to pay the sum of lour dollars shall pay so much as, with the commodities on board, will yield the sum afore- said ; and every empty boat or vessel four dollars, except an empty boat or vessel returning, whose load has already paid the tolls affixed, in which case she shall pass toll-free." And, by the eleventh sec- tion of the charter, it is declared, that " the canal and works to be erected thereon, in virtue of the charter, when completed, shall forever thereafter be esteemed, and taken to be navigable, as a public ' The Proprietors of the Stourbridge Canal v. Wheeling and others, 2 B. & Ad. 792 ; Gildart v. Gladstone, 1 East, 675 ; The Dock Company of Kingston-upon-Hull v. Browne, 2 B, & Ad. 58 ; Barrett v. Stockton Rail- way Co. 2 Man. & Gr. 134 ; 2 Scott, N. R. 339. For other English de- cisions upon the right of canal companies to demand and receive tolls, see Leeds and Liverpool Navigation Co. v. Hustler, 1 B. & C. 424; 8 E. C. L. 118, overruling the case of HoUingshead v. Liverpool and Leeds Canal Co. 2 B. & Aid. 66 ; Frazer v. Swansea Canal Co. 3 Nev. & M. 391 ; Jenkins v. Cooke, 1 Ad. & El. S72 ; Staffordshire and Worcester- shire Canal Co. v. Trent and Mersey Canal Co. 6 Taunt. 151 ; Mon- mouthshire Canal Co. v. Kendall, 4 B. & Aid. 453 ; Brittain v. Cromford Canal Co. 3 B. & Aid. 139; Lees v. Manchester Canal Navigation, 11 East, 645 ; Rex v. Tone Conservators, 1 B. & Ad. 561 ; Regina v. Leices- tershire and Northampton Union Canal Co. 3 Railway Cases, 1 ; Hall v. Grantham, Canal Navigation, 13 Law J. (N. S.) 583; Hall v. Gran- tham Canal Co. 13 Mees. & W. 114. 462 LAW OF HIGHWAYS. [CHAP. -VIII. highway, free for the transportation of all goods, commodities, or produce whatsoever, on payment of the toll imposed by this act ; and no tax whatsoever for the use of the water of the said canal, or the works thereon erected, shall at any time hereafter be imposed by all or either of the said States." In a case before the Supreme Court of the United States, the following questions occurred upon the construc- tion of this charter : First, is the canal company enti- tled to charge compensation or toll for passengers on board a boat passing through the canal ? Second, has any one a right to navigate the canal, without leave of the company, for the transportation of pas- sengers, with passenger-boats, paying, or oiFering to pay, toll upon the boats, as empty boats, or upon commodities on board, but without toll or compen- sation for passengers? The Court held, as to the first question, that the charter conferred upon the company no right to demand or receive toll for pas- sengers. " The articles upon which the company is authorized to take toll," was the language of Ta- ney, C. J., "are particularly enumerated, and the amount specified. The toll is imposed on commodi- ties on board of a vessel passing through the canal. No toll is given on the vessels themselves, except only when they have no commodities on board, or not sufficient to yield a toll of four dollars. Passen- gers are not mentioned in the enumeration, nor is any toll given upon a vessel on account of the per- sons or passengers it may have on board. Now, it is the well-settled doctrine of this Court, that a corpora- tion created by statute is a mere creature of the law, and can exercise no powers except those which CHAP. VIII.] TRAVEL UPON CANALS. 463 the lavf confers upon it, or which are incident to its existence.-^ And as no power is given to this cor- poration to demand toll from passengers on board, it is very clear that no such power can be exercised, and no such toll lawfully taken." The canal com- pany, it was further remarked, is not the absolute owner of the works ; it has no rights of property ex- cept those derived from the provisions of the charter, and holds its property only for the purposes for which it was created. And, in answer to the second ques- tion, it was held, that the company had not a right to refuse permission for passengers 'to pass through the canal. On the contrary, any one had a right to navigate the canal for the transportation of passen- gers, with passenger-boats, without paying any toll on the passengers on board, upon his paying, or of- fering to pay, the toll prescribed by law upon the commodities on board, or the toll prescribed by law upon a vessel or boat, when it was empty of com- modities. For the word "empty," it was said, as used in the charter, must be interpreted in the light of its context ; and, as the law was speaking of cargo, and of cargo only, and not of persons or passengers, looking at its connections, that word evidently meant without cargo. And inasmuch as by the charter every vessel suited to the navigation of the canal was authorized to pass through, upon the payment of the toll imposed by law, and there being none im- posed by law on persons or passengers, nor any dis- ' Head and Amory w. The Providence Ins. Co. 2 Cranoh, 127; Dart- mouth College V. Woodward, 4 Wheat. 636 ; Bank of the United States V. Dandridge, 12 lb. 64 ; Charles River Bridge v. Warren, 11 Pet. 544 ; Bank of Augusta v. Earle, 11 lb. 587. 464 LAW OF HIGHWAYS. [CHAP. Till. tinction in the charter between vessels with or with- out passengers, there was no reason why the canal, contrary to usage, should be limited to a highway solely for the transportation of merchandise.^ 4. Travel upon Railroads. § 370. Public railroads, like turnpike roads and canals, are the creatures of statutes ; and, as with turnpike roads and canals, the rights and duties of their proprietors, and of the public, flow directly from these statutes, and from the mutual relations thereby created between them. They are open to the travel of the entire public, upon the payment of the pre- scribed rate or toll ; ^ and, as in the case of turnpike ' Perrineu. Chesapeake and Delaware Canal Co. 9 How. 172. Though a canal company is forbidden by its act of incorporation from charging a higher rate of tolls than is specified in the act, this does not prevent it from entering into a special agreement to charge a less rale. Delaware and Hudson Canal Co. v. The Pennsylvania Coal Co. 21 Penn. 131. When a boat is induced by the canal company to enter the canal, in the expectation that, for a fair compensation, it shall have a passage through, the law implies an agreement on the part of the company, that the boat shall get through in a reasonable time. Muir v. Canal Co. 8 Dana, 161. ^ Ante, § 18. With reference to the legal obligation of railway compa- nies to transport upon their roads property and passengers at a reasonable expense, Chancellor Walworth, in Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, 45, says : " The privilege of making a road and tak- ing tolls thereon is a franchise as much as the establishment of a ferry or a public wharf, and taking tolls for the use of the same. The public have an interest in the use of the railroad, and the owners may be prosecuted for the damage sustained, if they should refuse to transport an individual, or his property, without any reasonable excuse, upon being paid the usual rate of fare. The legislature may, from time to time, regulate the use of the franchise of railway companies, and limit the amount of toll which they may take, in the same manner as they may regulate the toll to be taken at a ferry, or for grinding at a mill, unless a legislative contract with the company intervenes." Beekman v. Saratoga and Schenectady Railroad Co. 3 Paige, 45. CHAP. Vni.] TKAVEL UPON RAILROADS. 465 roads and canals, if there be any ambiguity in the language of the acts, by which the right to the rate or toll is granted, that construction is to be adopted which is most favorable to the public, as against the grantee.^ The public, however, while entitled with- out distinction to travel upon railroads, are entitled to do so only in a particular manner, in vehicles con- trolled and managed by the company, and of the control and management of which, it would seem, the company are not allowed to divest themselves, even for the purpose of giving them up to another company.* § 371. The power of Railroad Corporations to adopt Rules and Regulations. The relation which a railroad company holds to the public is that of a common carrier ; and, as such, independently of ex- press statute authority, they are entitled and bound to adopt and enforce reasonable and suitable regula- tions, in reference to the use of their road, as well for the good of the public as their own ; and this right and duty extend not only to the regulation of their cars and of the passengers in transit, biit like- wise to the use of the houses and buildings connected with the road. This authority, it has been remarked, is incident to the ownership of such houses and build- ings, and to the employment of the company as pas- senger-carriers ; " and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure ' Barrett v. Stockton and Darlington Kailway Co. 2 M. & Gr. 134; 2 Scott, 337, affirmed in Exchequer Chamber, 3 Scott, 803 ; 2 Kailway Cases, 467, affirming judgment of C. P. 2 lb. 443; Parker u. Great Western Kailway Co. 7 Scott, 835 ; ante, § 368. 2 Beman v. Rufford, 6 Eng. Law & Eq. 106. 30 466 LAW OF HIGHWAYS. [CHAP. Vin. their own just rights in such employment ; and also such as are necessary and proper to insure the safety and promote the comfort of passengers. The reason- ableness of such regulations, must in some measure be judged of with reference to the particular depot at which they are adopted. Regulations may be proper and necessary at one of the termini of the road, where there is usually a great throng of pas- sengers and other persons connected with the busi- ness of the road, which would not be required at a way-station, where few persons enter or leave the cars, and where they stop but a few moments." ^ The duty of a railroad company has been compared, in this respect, to that of an inn-keeper, whose premises are open to aU guests, and who is not only empow- ered, but bound, so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein ; and who, of course, has a right, and is bound, to exclude from his premises, all disorderly persons, and all persons not conforming to regula- tions necessary and proper to secure such quiet and good order.^ These regulations, being such as the company have the power to make, in virtue of their ownership of the depot buildings, and of their em- ployment as carriers of passengers, are not necessary to be made in the form of .by-laws, to be carried into effect by penalties and prosecutions. They may make them as an individual carrier might make them, and may delegate to their superintendent ' Per Shaw, C. J., in Commonwealth v. Power, 7 Met. 596. 2 Markham v. Brown, 8 N. H. 523. CHAP. Vni.] TRAVEL UPON RAILEOADS. 467 authority to make them, and, by himself and his assistants, to enforce their observance. Accordingly, it has been held, where the entrance of inn-keepers or their servants into a railroad depot, to solicit pas- sengers to go to their inns, is an annoyance to passen- gers, or a hindrance and interruption to the railroad officers in the performance of their duties, the super- intendent of the depot may -make a regulation to prevent persons from going into the depot for such purpose ; and if, after notice of the regulation, they refuse to comply vrith it, he and his assistants 'may forcibly remove them, using no more force than is necessary for that purpose. And, even if such a per- son has a ticket, and enters with the bona fide inten- tion of taking passage in the cars, unless he exhibits his ticket, or discloses his intention, he may be justi- fiably removed by the superintendent.'^ But the mere opinion of the superintendent, that a person has violated the regulations of the road, without proof of the fact, or the fact that he has conducted himself offensively towards the superintendent, will not alone justify his forcible removal.^ ' Commonwealth v. Power, supra. ' Hull V. Power, 12 Met. 482 ; and see Barker v. The Midland Kailwaj Co. 18 C. B. 46, and 5 Am. Law Reg. 57. This was an action by the plaintiff, an omnibus proprietor, who carried passengers and their lug- gage for hire to and from a railway station of the defendants, for a re- fusal by the defendants' servant to allow him to drive his vehicle into the station-yard. There were demurrers and cross-demurrers raised by the pleadings, and the Court decided in favor of the defendants, on the ground, that no duty was shown on the defendants' part, to permit the plaintiff to come upon their land. Where the superintendent exceeds his power, in such case, it seems that he alone is liable, and that the com- pany will not be held responsible, unless it authorizes or commands the acts complained of, or subsequently ratifies them. The Eastern Counties Eailroad Co. v. Broom, 3 Eng. Law & Eq. 406 ; Roe v. The Birkenhead, &c. Eailroad Co. 7 lb. 546. 468 LAW OF HIGHWAYS. [CHAP. VIH. § 372. The rules and regulations which the pro- prietors of railroads may adopt, it has been said, in another case, " have no limits, except that they must be reasonable, lawful, and within the limits of the charter. And these regulations may be adopted by the board of directors, in the form of by-laws or resolutions, under their corporate seals, or by any ofl&cer or agent having Charge of any particular branch of their business in relation to the business committed to his charge. In this manner, the company or its officers may regulate the number of trains to be run daily, the time of departure, the rate of speed, the quantity and kind of loading for each car, the mode and time of receiving freight, giving receipts, issuing tickets, taking fare, &c. And they may, in like manner, establish trains exclusively for pas- sengers, and exclusively for freight, or mix and di- vide them as they see fit. And, in this case, it was held, that the railroad company were justified in re- fusing ■ to carry a passenger who tendered a proper pass, if his object, in using the road, was to violate one of the rules of the road, which excluded fireight or " express matter " from the passenger train, or if they had good reason to believe that he was going out with that purpose, and he did not disclaim it.-' § 373. The law, as laid down by Mr. Justice Story, in Jencks v. Coleman,^ in reference to steamboats, is, without doubt, equally applicable to railroads, unless it be varied by statute. " The right of passengers," he remarked, " to a passage on board of a steamboat, ' Menihew v. The Milwaukee and Mississippi Railroad Co. 5 Am. Law Keg. 364. 2 Jencks v. Coleman, 2 Sum. 221. CHAP. VIII.] TRAVEL UPON RAILROADS. 469 is pot an unlimited right, but is subject to such rea- sonable regulations as the proprietors may prescribe for the due accommodation of passengers, and for the arrangements of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to ad- mit passengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct, or who make disturbances on board, or whose characters are doubt- ful, or dissolute, or suspicious ; and, a fortiori, whose characters are unequivocally bad.^ Nor are they bound to admit passengers on board, whose object it is to interfere with the interests or patronage of the proprietors, so as to make the business less lucrative to them. While, therefore, I agree, that steamboat proprietors, holding themselves out as common car- riers, are bound to receive passengers on board under ordinary circumstances, I at the same time insist that they may refuse to receive them if there be a reasonable objection. And, as passengers are bound to obey the orders and regulations of the proprietors, unless they are oppressive and grossly unreasonable, whoever goes on board, under ordinary circumstances, impliedly contracts to obey such regulations ; and ' But altbougli carriers of passengers are not obliged to admit persons who are notoriously and unequivocally bad, yet, supposing a person to be of infamous character, if he has paid his fare, and has been admitted as a passenger, it furnishes no excuse for turning him out, so long as he has not been guilty, during the journey, of any impropriety of conduct ; and none for treating him in so scandalous and disgraceful a manner as to eompel him to leave the conveyance. Coppin v. Brjiithwaite, 8 Jur. 875, Exch., cited in Angell on Carriers, § 532. 470 LAW OF HIGHWAYS. [CHAP. THI. may justly be refused a passage, if he wilfully resists or violates them." § 374. In Cheney v. The Boston and Maine Eail- road Company,^ the purchasers of tickets for a pas- sage on the road, from one place to another, were required, by the rules of the company, to go through in the same train ; and passengers who were to stop on the road, and afterwards finish their passage in another train, were required to pay more than- when they were to go through in the same train. The plaintiff, not knowing these rules, purchased a ticket from Durham to Boston, and entered the cars, with an intention to stop at Exeter, an intermediate place, and to go to Boston in the next train. When he took his ticket, he was informed of the rule that re- quired him to go through in the same train, and a check was given him, on which were the words, " Good for this trip only." Thfe conductor then of- fered to give back to the plaintiff the money which he had paid, deducting the amount of his passage from Durham to Exeter, which the plaintiff refused to accept, but demanded the ticket in exchange for the check. He stopped at Exeter, and went on to Boston on the same day, in the next train, and he offered his check, which was refused, and he was obliged to pay $ 1.50 for a ticket from Exeter to Boston. In an action against the defendants for a breach of contract in not carrying the plaintiff from Durham to Boston, it was held, that the action could not be maintained. And Dewey, J., said : " The ques- tion as to the right of the plaintiff to be transported '■ Cheney v. The Boston and Maine Raiboad Co. 11 Met. 121 ; Boston, &c. Railroad Co. v. Proctor, 1 Allen, 26 7. CHAP. VIII.] TRAVEL UPON KAILROADS. 471 as a passenger does not depend upon his knowledge, at the time of the purchase of his ticket, of the dif- ference ef the price to be paid for a passage through the whole distance by one train, or that of a passage by different trains. The plaintiff might have in- quired and informed himself as to that. If he did not, he took the mode of conveyance, the price of the ticket and the superscription thereon secured to him under the rules and regulations of the company. It appears, however, that, before reaching Exeter, the plaintiff was fully apprised of the different raites of fare, and the rules applicable to way-passengers, and that the agent of the defendants, the conductor of the train, offered to refund to him the money that he had paid for his ticket, deducting the usual fare from Durham to Exeter, which the plaintiff refused to accept. In the opinion of the Court, this was all that the defendants were required to do ; and as the plaintiff declined this offer, and thereupon left the train, stopping at. Exeter, he voluntarily relinquished his passage through by a continuous train, for which he held a ticket ; and whatever loss he has sustained was occasioned by his own act, and occurred under such circumstances as preclude him from all claim for damages for any default of the company in the matter. Nor can he sustain any legal claim to re- cover back the sum paid for his first ticket, or any part thereof"^ § 375. So, in the Northern Kailroad Company v. ' Angell on Carriers, § 590, note; 1 Law Reporter (N. S.), 461. But a by-law, declaring that a railroad company will not be responsible for the care of a passenger's luggage, unless booked and paid for, is unreasonable and void. Williams v. The Great Western Railway Co. 28 Eng. Law & Eq. 439. But see Angell on Carriers, § 571. 472 LAW OF HIGHWAYS. [CHAP. VIII, Paige, where the defendant claimed a right to retain his ticket to the end of his journey, in defiance of a rule or custom, which was previously know{i to him, requiring passengers, soon after starting, to surren- der their passage-tickets to the conductor, and re- ceive his check in the place of them ; the Court, recognizing the principles established in the preced- ing case, held the following language : " The law will imply, under the circumstances of this case, that the contract, on the part of the plaintiff, was to convey the defendant over their road, provided he surren- dered his ticket to the conductor, when it was de- manded, as required by the custom of the road. Under this contract, the defendant would not be en- titled to his passage in the plaintiff's cars without the surrender of the ticket ; and his refusal to de- liver up his ticket to the conductor, when demanded, would justify the latter in exacting from him his fare in cash ; and, on his refusal to pay his fare, putting him out of the cars. The custom in question was a reasonable custom. The ticket purchased by the defendant, if not surrendered, could be used to secure a second or any number of rides over the road, with- out the payment of fare. Its surrender, therefore, was necessary to the protection of the company from fraud. The form of the ticket entitled the hearer, whoever he might be, to one passage over the plain- tiffs' road. The purchaser, after riding himself upon the ticket, could sell or hand it to another, who, with the ticket, could also- secure a passage over the road, without the payment of fare." ^ ' The Northern Kailroad Co. v. Paige, 22 Barb. 130. The Court also stated, as an additional reason for this decision, the fact, that an agree- CHAP, VIIL] travel UPON EAILEOADS. 473 § 376. A railroad corporation in Connecticut, es- tablished and gave public notice of a regulation, that the fare in their cars, from Norwich to New London, would be fifty cents, if it was paid, and a ticket pro- cured by the passenger, before entering their cars ; otherwise it would be fifty-five cents. The plaintiff without a ticket, took a seat in one of their cars at Norwich, and, when called upon by the conductor, after the cars had left for New London, offered to pay fifty cents for his passage from Norwich to New London, and refused to pay any more ; whereupon the conductor, with the aid of persons in the employ- ment of the defendants, forcibly removed him from the car. Upon the trial of an action of trespass, brought to recover damages for the injury sustained by the plaintiff, he claimed to have proved, that he went to the defendants' of&ce, where the tickets were usually sold, at a reasonable time before the train left for New London, to procure a ticket; that said oflS.ce was closed, and there was no one of whom a ticket could be pro- cured, then or afterwards, until after the departure of the cars, and that he informed the conductor of these facts at the time his fare was demanded. It was iadmitted, that the regulation of the defendants was ment had previously been made between the plaintiffs and the Hudson Kiver Railroad Co., that each might sell tickets on the other's line, which should be paid for to the company carrying the passenger, when returned to the company issuing them ; and that, consequently, the surrender of the ticket was necessary to enable the plaintiffs to demand from the Hud- son Elver Railroad Co. the price of the ticket. State v. Thompson, 20 N. H. 250; Beebe v. Ayers, 28 Barb. 275; Hibbard v. New York and Erie Railroad Co. 15 N. Y. 455. Passenger refusing to show his ticket on request may be expelled, and cannot regain his right to proceed in the cars by producing his ticket after signal given to stop the train to put him off. 474 LAW OF HIGHWAYS. [cHAP. VIH. a reasonable and legal one ; but the plaintiff claimed that, having applied for a ticket at a reasonable time, and not having been able to obtain one by the default of the defendants, who v^ere bound by their notice to furnish all reasonable facilities to enable parties to ob- tain tickets, he was not to be injured by a regulation with which it was impossible for him to conform. But it was held, that the published rule was a prof- fered contract, which might be closed by a mere ac- ceptance, but which, until accepted, might be with- drawn at pleasure ; that closing the office was, for the time, at any rate, a most effective withdrawal, and necessarily communicated notice of such with- drawal to the plaintiff; that the proposition being withdrawn, the parties were in the same condition as before it was made ; the defendants continuing common carriers, and, as such, bound to carry the plaintiff for fifty-five cents, but not otherwise ; and that the plaintiff refusing that sum, the conductor had a right to remove him from the cars, using no unnecessary force for that purpose ; and that, for such removal, the defendants were not liable in an action of trespass.^ 1 Crocker v. The New London, Willimantio and Palmer Railroad Co. 24 Conn. 249. But see dissenting opinions by Hinman and Storrs, JJ., lb. 266, 267; Havens v. Hartford, &c. Railroad Co. 28 Conn. 69; San- ford V. Eighth Avenue Railroad Co. 23 N. Y. 343. A uniform discrim- ination between fares paid in the cars and at the stations, not exceeding five cents, is reasonable and legal. Billiard v. Gould, 34 N. H. 230. And when the passenger only pays from station to station, he may be re- quired to pay the additional five cents at every payment. Ch., Bur., and Quincy Railroad Co. v. Parks, 18 111. 460. But this regulation cannot be enforced, unless every proper and reasonable facility is afforded for procuring the ticket at the station. St. Louis, &c. Railroad Co. v. Dolby, 19 111. 353. CHAP. VIII.] TRAVEL UPON EAILEOADS. 475 § 377. In England, railroad companies are some- times authorized to enforce their rules and regula- tions by imposing forfeitures or penalties for the breach thereof, and to recover the same by summary proceedings. In such a case, to justify the resort to such a proceeding, the party proceeded against must have been guilty of a breach of some rule or regulation punishable hy penalty or forfeiture. Thus, a railway company were empowered to make orders for regulating the travelling upon, and use of, the railway, and for, or relating to passengers passing thereon ; such orders or regulations to be binding upon such travellers, on pain of forfeiting and paying a sum not exceeding £5, which the company should attach to a default ; recoverable in a summary way by adjudication of Justices, one half the penalty to go to the informer, and the other half to the com- pany. And any oflBcer or agent of a company was authorized to seize and detain any person whose name and residence should be unknown to such of- ficer or agent, who should commit any offence against the act, and to convey him, &c. before a Jus- tice, without any warrant or other authority than that act. The company made a by-law under their common seal, by which each passenger, not pro- ducing or delivering up his ticket on leaving the company's premises, was required to pay the fare from the place whence the train originally started. In an action for seizure and detention under this by- law, it was held, that though it might be reasonable to insist that the passenger who does not produce his ticket at the end of his journey shall pay the fare charged from the most remote terminus, since 476 LAW OF HIGHWAYS. [CHAP. VIII. no other might be ascertainable by the company, yet, inasmuch as the violation of the by-law, under which the fare was claimed, was not punishable by forfeiture or penalty, the arrest of the plaintiff was un- authorized. ^ § 378. Their Duty to receive Persons as Passen- gers. Subject to such rules and regulations as may be properly made, it is the duty of railroad compa- nies, as common carriers, to receive all persons who apply for seats by their conveyance, provided there is room for them, and a tender of, or offer to pay, the fare, is made at the time.^ And this duty, it has been observed, is imposed by the common law, and a breach of this duty is a breach of the law, for which an action lies, founded on the common law, and requiring not the aid of a contract to support it.* And it is not a lawful excuse for refusing to receive passengers, that the company run their cars in con- nection with a coach or another train of cars, which extends the line to a certain place, and have agreed not to receive passengers who come from that place, ' Chilton V. The London and Croydon Railway Co. 16 M. & W. 212. In this case, it was also very strongly intimated, that the only power to apprehend, given by the act, was for such offences as were made punish- able by forfeiture and penalty by the act itself, and not simple violations of the by-laws and regulations of the company. " Angell on Carriers, § 524; Bretherton v. Wood (Exch.), 3 Bro. & Bing. 524 ; Messiter v. Cooper, 4 Esp. 260 ; Bennett v. Button, 10 N. H. 481. Where a railroad company issue excursion tickets to passengers, to go to a certain place, and back by some return train, it would seem that the company are not excused from carrying such passengers, according to their contract, upon the ground that there is no room for them in the train ; but, in order to avail themselves of this answer, they should make their contract conditional upon there being room. Hawcroft v. The Great Northern Railway Co. 8 Eng. Law & Eq. 362. ' Bretherton v. Wood, uj. sup. CHAP. VIII.] TRAVEL UPON RAILROADS. 477 on certain days, unless they come in such coach or other train of cars. Neither have the company, by a notice brought home to the individual, the right to limit their general duty in this manner.^ This duty, moreover, involves the obligation, that the pas- sengers, after they have paid their fare and taken their seats, shall not be overcrowded, and be hereby, as it were, expelled.^ The company must also carry the passenger the entire distance they engage to carry him ; they cannot refuse to proceed at any in- termediate stage, for their undertaking is absolute, and hence, in case of accident, they would be bound to provide another conveyance.^ In Weed v. The Saratoga and Schenectady Eailroad Company,* it was held, that if a railroad company contracts to carry passengers and their baggage heyond the limits of their own road, their duty, as carriers, extends through the whole route, in respect to which the ' Bennett v. Button, 10 N. H. 481. ' Per Scates, J., in Galena and Chicago Eailroad Co. v. Yarwood, 15 HI. 472. And see Long v. Home, 1 Car. & Payne, 610, in which it was held, that if coach proprietors take more than the legal number on the coach, a passenger may refuse to occupy his seat, and sue for expenses incurred, for the contract entered into by them must be performed in terms. And, also, if places be taken for several persons to go inside a coach together, it is a breach of the contract, if the owner only provides distinct seats for them. Ibid. ; Deevort v. Loomer, 21 Conn. 245. The circumstance that a passenger is a " steamboat-man," and, as such, is car- ried gratuitously, does not deprive him of the right of redress enjoyed by other passengers. Steamboat New World v. King, 16 How. 469. * Dudley u. Smith, 1 Campb. 167 ; Ker v. Mountain, 1 Esp. 27 ; Messi- ter V. Cooper, 4 Esp. 260 ; Jeremy on Carriers, 23 ; Story on Bailments, § 600. * Weed V. The Saratoga and Schenectady Railroad Co. 19 Wend. 534 ; Gary v. Cleveland and Toledo Railroad, 29 Barb. 35 ; Quimby v. Van- derbilt, 17 N. Y. 306 ; Najac v. Boston and Lowell Railroad Co. 7 Allen, 329. 478 LAW OP HIGHWAYS. [cHAP. VIH. contract is made. The defendants, in this case, hav- ing undertaken to carry from Saratoga Springs to Albany, were, in the opinion of the Court, estopped from saying that their duty as carriers concluded no farther than Schenectady, the termination of their own road. In order to limit their liability to a part of the route, they should, at least, have given notice that, after the car struck the track beyond Schenec- tady, the traveller must look to another company, if in fact there was another. " And where companies sell through tickets in the form of coupons, which are purchased of the first company, and which entitle the person holding them to pass over successive roads, with ordinary baggage, there is commonly, in this country, no contract with the first company to carry such person beyond the line of their own road. They are to be regarded as distinct tickets for each road, sold by the first company as agents for the others, so far as passengers are concerned ; and un- less the first company check the baggage beyond their own line, it is questionable, perhaps, how far they are liable for losses beyond their own limits. " ^ § 379. So, also, it is the duty of the company to afford, in the progress of the journey, the accommo- dations they profess to afford. Thus, if there is a general usage to allow certain intervals for re- freshment, the company cannot, at their pleasure, vary such usage ; for it may be that such usage is the very reason for preferring that particular con- ' Redfield on Kailw. § 186, p. 2, and cases cited; Angell on Carriers (4th ed.), § 531 ; Sprague v. Smith, 29 Vt. 421 ; Hood v. New York and New Haven Railroad, 22 Conn. 1 ; Ellsworth v. Tartt, 26 Ala. 733 ; Strai- ten V. New York and New Haven Railroad, 2 E. D. Smith, 184. CHAP. VIII.] TRAVEL UPON RAILROADS. 479 veyance to the lessaccommodating arrangement of another line of conveyance. In other words, every passenger is understood to contract for the usual reasonable accommodations.-' § 380. Their lAdbility for the Baggage of Passen- gers. — The duty of railroad companies as regards the transportation of the personal baggage of pas- sengers, and of goods and merchandise generally, is, imless their responsibility be expressly limited by notice to the passenger, precisely the same as that of the proprietors of stage-coaches, steamboats, or any other class of common carriers ; that is, they in- sure the same against all losses, whether proceeding from the negligence or misconduct of themselves, their servants, or even all third persons, with the exception of the owner.^ The charge for the trans- portation of baggage is included in the fare of the passenger, and is a sufficient consideration for the liability assumed.^ And in Pennsylvania, in a suit against stage owners for loss of baggage, it was held, ' Angell on Carriers, § 533 ; Story on Bailments, § 597 ; Jeremy on Carriers, 23. ^ Angell on Carriers, § 571. Respecting the power of common car- riers to limit their common-law liability as to the safety of a passenger's baggage by notice ; and their power by notice to require the owner to state the nature or value of the property, see Angell on Carriers, § 292 et sea. Mr. Angell remarks : " It would appear, that where the company take care to embody the notice in the tickets delivered to every passen- ger on taking his place, as part of the terms on which they are willing to accept him, this would constitute a special contract on the subject, so that the company would not be liable for negligence." Angell on Carriers, § 571 a, citing Palmer v. Grand Junction Railway Co. 4 M. & Welsh 752. / Hawkins v. Hoffman, 6 Hill, 586 ; Bennett v. Dutton, 10 N. H. 481 ; Logan u. Ponchartrain Railroad Co. 11 Rob. 24; Powell );. Myers, 26 Wend. 591 ; Brook v. Pickwicke, 4 Bing. 218 ; Pei.xotti v. M'Laughlin, 1 Strob. 468 ; Jones v. Voorhees, 6 Ohio, 358. 480 LAW OF HIGHWAYS. [CHAP. tin. that payment of the fare need not be expressly- proved ; for it may be inferred without violent im- plication, inasmuch as the payment of fare is seldom or never neglected. And even if the fare is not paid, the passenger is liable to pay it ; and this obliges the owners of a public conveyance to the ex- ercise of diligence.^ The proprietors of a railroad, who receive passengers and commence their carriage at the station of another road, are bound to have a servant there to take charge of baggage until it is placed in their cars ; and if it is the custom of the baggage-master of the station, in the absence of such servant, to receive and take charge of the baggage in his stead, the proprietors will be responsible for baggage so delivered to him.^ Our present purpose, however, does not involve any particular discussion of the liabilities of railroad companies as common carriers ; we therefore refer the reader who wishes to pursue this subject further to the books which are more expressly devoted to that branch of the law. § 381. But though it is settled that passenger carriers are responsible for baggage, yet there is stiU a very wide field for controversy remaining, in de- ' McGill V. Eowand, 3 Barr, 451 ; and see Bingham v. Rogers, 6 Watts & a 451 ; Whitesell v. Crane, 8 Ibid. 369. ^ Jordan v. The Fall River Railroad Co. 5 Cush. 69. Railroad com- panies cannot make such restrictions or regulations as virtually to exon- erate themselves from liability from baggage, but they may exclude bag- gage from particular trains, and make reasonable regulations ; and where a passenger accepted a ticket in an excursion train which referred him to a bill on which it was announced that luggage is at the owner's risk, it was held, that he was not entitled to recover for loss of his luggage although he was in fact ignorant of the statement in the bill. Rumsav v. N. E. Railroad Co. 14 C. B. (N. S.) 641 ; Stewart v. London, &o. Railroad Co. 3 H. & C. 135. CHAP, nil.] TRAVEL UPON EAILROADS. 481 termining what is properly included in the term " baggage." In Jordan v. The Fall Eiver Eailroad Company,^ Fletcher, J., in delivering the opinion of the Court, remarked upon this subject as follows : " It is quite impossible for the Court to restrict, within certain and prescribed limits, the quantity or value or kind of articles which may be embraced in the term " baggage " of the travelling world. The most that can be done is, to prescribe some general rules as to the character, description, and purposes of ar- ticles which may be taken as baggage. It may be said, in general terms, that baggage includes such articles as are of necessity or convenience for per- sonal use, and such as it is usual for persons travelling to take with them. It has been said, that articles for instruction or amusement, as books, or a giin, or fish- ing tackle, fall within the term " baggage." In the case of Brooke v. Pickwick,^ the carrier was held re- sponsible for a lady's trunk containing apparel and jewels. So, in the case of M'Gill v. Rowand,^ which was for apparel and jewelry. In Jones v. Voorhees,* ' Supra. But silver spoons, a Colt's pistol, and surgical instruments, unless the passenger be connected with the profession, are not so. Giles V. Fauntleroy, 13 Md. 126. So of title-deeds and documents which an at- torney is carrying with him to use on a trial, nor is a considerable amount of bank-notes, carried to meet the contingencies or exigencies of the case. Redfleld on Eailw. § 171, and cases cited. " Brooke v. Pickwick, 4 Bing. 218. * M'Gill V. Kowand, 3 Barr, 451 ; Nevins v. Bay State, &o. Co. 4 Bosw. 225. A reasonable amount of money may be carried in the trunk, and the value recovered as baggage. Illinois Central Railroad Co. v. Copeland, 24 111. 332. In Hickox v. Naugatuck Eailroad Co. 31 Conn. 281, sixty dollars for the purpose of purchasing clothing at the place of destination, was held not such, and company not liable as common car- riers for its loss. * Jones V. Voorhees, 10 Ohio, 145, 150. 31 482 LAW OF HIGHWAYS. [CHAP. VIII. the carrier was held responsible for a watch which ■was lost in a trunk, as being an appendage to the traveller. But a carrier is not liable for merchandise as baggage. In Pardre v. Drew/ the passenger car- rier was held not responsible for a trunk of silk goods as baggage. So in Hawkins v. Hoffman,^ the carrier was held not liable for samples used for effect- ing sales of goods. So carriers are not liable for large sums of money as baggage taken for the pur- pose of transportation. In the case of the Orange County Bank v. Brown/ it was held, that the owner of a steamboat used for carrying passengers was not liable for a trunk, containing a large sum of money, brought on board by a passenger as baggage, the object being the transportation of the money. In the case of Weed v. Saratoga and Schenectady EaU- road Co.* it was held, that a railroad company was liable for money in a trunk, to a reasonable amount for travelling expenses, as baggage. In that case, the sum was f 285, in the trunk of a passenger from Saratoga to New York. In the case of Orange County Bank v. Brown, above cited, it was also sup- posed, though not expressly adjudged, that money for travelling expenses might be carried as baggage at the risk of the carrier. But in the case of Haw- kins V. Hoffman, a doubt was expressed, whether any ' Pardre v. Drew, 25 Wend. 459. 2 Hawkins v. Hoffman, 6 Hill, 586. ' Orange County Bank v. Brown, 9 Wend. 85 ; Whitman v. Steam- boat Caroline, 20 Mis. 513. ' Weed V. Saratoga and Schenectady Railroad Co. 19 Wend. 534. But see Bomer v. Maxwell, 9 Humph. 621, in which the word " baggage " was held to include only such articles as are necessary for the personal convenience of the passenger, and not to embrace money (in this case % 160), nor a watch, handcuffs, locks, &c. CHAP. VIII.] TRAVEL UPON RAILROADS. 483 money could be considered as baggage. Upon con- sideration of the whole subject, and referring to the cases, the Court have come to the conclusion, that money bona fide taken for travelhng expenses and personal use may properly be regarded as forming a part of a traveller's baggage." -^ § 382. But where merchandise, carried by a pas- senger as baggage, is exposed to view, and the company choose to take it without making any bargain for its carriage, the company will be respon- sible for its loss.^ And in any case where articles are received into the custody of the company, whether they may be properly considered as baggage or not, the company, upon common and familiar principles, and wholly irrespective of their liability as common carriers, will be responsible for a loss occasioned by gross negligence. ' In England, by sect. 169, of 5 and 6 Will. IV. c. 107, every passen- ger travelling upon tte Great Western Railway may take with him, without extra charge, his articles of clothing, not exceeding certain weight and dimensions ; and the company are not to be liable for the safe carriage of any article carried with a passenger, except his articles of clothing, not exceeding the given weight and dimensions. In the case of Williams v. The Great Western Railway Co. 28 Eng. Law & Eq. 439, tried in the Court of Exchequer, it was observed by Pollock, C. B., " The term ' articles of clothing ' ought to include all things necessary to the toilet." Bell v. Drew, 4 E. D. Smith, 59 ; Duffy v. Thompson, 4 E. D. Smith, 178; McCormick v. Hudson River Railroad Co. lb. 81 ; Phelps V. London &N. W. Railway Co. 19 C. B. (N. S.) 652; Merrill v. Grin- nell, 30 N. Y. 594 ; and see Redfield on Railways, § 171. ' Great Northern Railway Company v. Shepherd, 9 Eng. Law & Eq. 479 ; in that case the liability of the company for baggage was limited by statute to 56 lbs. weight for each passenger travelling by the train in which the defendant went ; and it was held, that this permitted a hus- band and wife, travelling together, to take 112 lbs. weight of luggage between them. Draper v. Worcester, &c. Railroad Co. 11 Met. 505; Moses V. Boston and Maine Railroad Co, 4 Foster, 71. 484 LAW OF HIGHWAYS. [CHAP. VIH. § 383. The delivery of the baggage to the carrier and the loss of it by his negligence having been es- tablished by proof aliunde, the current of authority in this country is to the effect, that it is competent for the party by his own evidence, there being no other known to him, to prove the contents of his trunk, and the value of the baggage that was taken from it.-' The admission of this testimony rests upon the principle of necessity, which applies, it has been held, not only to the party himself, but also to his wife. " The wife," said Rogers, J., in McGill v. Eow- and, " usually packs her husband's trunk, and always her own, and therefore to say that she cannot in a proper case be a witness will amount almost to a re- peal of the rule, and in most cases to a denial of jus- tice. We, therefore, see no reasonable objection to the admission of the husband or wife, or both, to tes- tify to the amount of their wearing apparel, and to its value, belonging to each, including in the cata- logue the wife's jewelry, and every other article per- taining to her wardrobe, that may be necessary or convenient to either in travelling."^ But as the rule is admitted upon a principle of necessity, it can have no application to other goods than those which come under the general name of baggage ; because, as to other goods, it is the duty of the owner, and in accordance with common usage, to provide himself with bills of lading or other evidences of the delivery ' Herman v. Drinkwater, 1 Greenl. 27; Sneider v. Geiss, 1 Yeates, 34; Clarke v. Spence, 10 Watts, 325; Openheimer v. Edney, 9 Humph. 385; Johnson v. Stone, 11 Humph. 419; Whitsell v. Krane, 8 Watts & Ser. 389; Fulton v. Kailroad Co. 20 Ohio, 319. ' MoGlU V. Kowand, 3 Barr, 451 ; The County v. Leidge, 10 Penn. St. 45 ; Mad River and Lake Erie Railroad Co. v. Fulton, 20 Ohio, 318. CHAP. VIII.] TRAVEL UPON RAILROADS. 485 to the carriers ; and, if he do not, he is himself guilty of negligence.^ § 384. But in Massachusetts, in the case of Snow V. The Eastern Railroad Company,^ the rule was alto- gether repudiated. In that case," the testimony of the plaintiff was offered to prove the contents of his trunk, containing wearing apparel, several books, and twenty-five dollars of money, and which was lost while he was. travelling, as a passenger, on the de- fendants' road. The Court, after admitting the rule as applicable to carriers who have criminally despoiled their passengers, observed : " The present case does not fall within the principle. Here was no robbery, no tortious taking away by the defendants, no fraud committed. It is simply a case of negligence on the part of carriers. The case is not brought within any exception to the common rule, and is a case of defective proof on the part of the plaintiff, not aris- ing from necessity, but from want of caution. To admit the plaintiff's oath, in cases of this nature, would lead, we think, to much greater mischiefs, in the temptation to frauds and perjuries, than can arise from excluding it. If the party about to travel ' Johnson et ah. v. Stone, 11 Humph. 419 ; Clark v. Spenoe, 10 Watts, 335 ; Pudor v. Boston and Maine Railroad, 26 Maine, 458 ; S. C. 10 Law Reporter, 117. In the latter case the declaration having alleged that the box, delivered to the defendants and lost, contained medical books, medicines, surgical instruments, and chemical apparatus, and articles of clothing, the testimony of the plaintiff was held to be inadmissible, the Court remarking that the admission of such testimony should be limited to clothing and personal ornaments. And see Bingham v. Rogers, 6 Watts & S. 495. ' Snow V. The Eastern Railroad Co. 1 2 Met. 44 ; Greely v. Camden and Amboy Railroad Co. 19 Law K. 684 ; Wright v. Caldwell, 3 Mich. 51 ; Central Railroad Co, v. Copeland, 24 111. 332. 486 LAW OF fflGHWAYS. [CHAP. VIII. places valuable articles in his trunk, he should put them under the special charge of the carrier, with a statement of what they are, and of their value, or provide other evidence, beforehand, of the articles taken by him. If he omits, to do this, he then takes the chance of loss, as to the value of the articles, and is guilty, in a degree, of negligence, — the very thing Avith which he attempts to charge the carrier." § 385. In South Carolina, likewise, the Court have refused to adopt this rule. But in that State, it has been decided, that a check in the possession of a pas- senger is evidence that his baggage was delivered to the company ; and, as a trunk is the usual means by which a passenger conveys his baggage, it is evi- dence that a trunk, with its contents, was delivered. These facts having been thus proved, it has been fur- ther decided, that, in the absence of proof as to the contents of the trunk and their value, the jury may give damages proportioned to the value of the arti- cles which they, in their judgment, think the trunk did and might fairly contain ; and if the company choose to leave the jury to the chances of mere vague conjecture, and suffer them to go beyond the plain- tiff's own valuation, by withholding his affidavit, it will be their own folly, and they wiU have no right to complain.-' § 386. Their Liability in Regard to the Road and its Equipment. The proprietors of a railroad, as pas- senger carriers, are bound to the most exact care and diligence, not only in the management of their ' Dill V. The South Carolina Railroad Co. 7 Rich. 158 ; citing Butler V. Basing, 2 Carr. & Payne, 613, to the point that, in the absence of proof, the jury might infer the value of the baggage. CHAP. VIII.] TRAVEL TOON RAILROADS. 487 trains and cars, but also in the structure and care of their track, and in all the subsidiary arrangements necessary to the safety of passengers.^ Their duty to keep their road in sufficient order and repair, so that persons and property may at all times pass in safety, is, as in the case of a turnpike corporation, an implied one, resulting -from their ownership and the receipt of tolls. And, it has been said, if a dis- tinction in practice were permitted, the rule of liabil- ity for neglect ought to be most stringently enforced against railroad corporations, whose slightest ina tention to the duties they assume may be, and fre quently is, attended with the most frightful results. The same rule exacts from them the utmost care in equipping their roads with proper cars, and in pro- portioning the speed of their trains to the strength of the road, and the number of passengers, and the amount and kind of freight which they are trans- porting.* ' MoEIroy v. Nashua and Lowell Railroad Corp. 4 Cush. 400. And see Palmer v. Grand Junction Railway Co. 4 M. & Welsb. 749 ; Bridge V. Grand Junction Railway Co. 3 lb. 244 ; Angell on Carriers, § 538. The care and diligence required is to be measured by the known perils to which passengers are exposed by the particular mode of conveyance used. Chicago and Burlington Railroad Co. v. Hazzard, 26 111. 373; but need not be such as will be inconsistent with the mode of conveyance, nor the utmost care of which the human mind is capable. Fuller v. Tal- bot, 23 111. 357; Curtis v. Rochester and Syracuse Railroad Co. 18 N. Y. 534; Bowen v. New York Central Railroad Co. 18 N. Y. 408. The company is bound to use the best precautions known in practical use, &c., but not every possible preventive which the highest scientific skill might have suggested. Ford v. London and Southwestern Railway Co. 2 F. & F. 730. For a full discussion of this question, see Redfield on Railways, 3d ed. § 176, and notes. 2 The Cumberland Valley Railroad Co. v. Hughes, 11 Penn. 141. And see Peters v. Ryland, 20 Penn. 497. ' Carpue v. London and Brighton Railway Co. 5 Ad & El. (N. S.) 488 LAW OF HIGHWAYS. [CHAP. VIH. § 387. In Hegeman v. The Western Railroad Cor- poration/ the plaintiff brought an action to recover damages for a personal injury received by him while a passenger upon the defendants' railroad. The injury was occasioned by the breaking of the axle of the car in which he was seated. The defendants gave evidence, tending to show, that the axle which broke was made of the best quality of iron, and well made ; that it had been examined from time to time, and that no external defect could be discovered. But, upon examining the iron where it was broken, & fire- crack appeared, and the iron did not appear to be good. It also appeared upon the trial, that an article called a safety-heam was in extensive use upon rail- roads in this country, the object of which was, in case an axle should break, to hold the wheel and axle in their place. The car was not constructed with this safety-heam, and it was insisted, on the part of the plaintiff, that the omission was evidence of negligence. The Judge charged the jury, that the defendants were responsible for all defects in the axle, which might have been discovered and rem- edied, to the same extent as if they had manufac- tured thg axle in their own workshop and by their immediate agents. He also left it to the jury to say, whether or not the defendants were guilty of negli- gence, in not informing themselves of the utility of a safety-heam, and furnishing their cars with them. The jury returned a verdict for the plaintiff for 447. And see Oliver v. New York and Erie Railroad Co., referred to in Angell on Carriers, § 538. Fletcher v. Boston and Maine Railroad Co. 1 Allen, 9 ; Holley v. Gas Light Co. 8 Gray, 131. ^ Hegeman u. The Western Railroad Corp. 16 Barb. 853; Alden v. New York Central Railroad Co. 26 N. Y. 102. CHAP. VIII.J TRAVEL UPON RAILROADS. 489 $ 9,900j which, upon a motion for a new trial, was affirmed. "From the very necessity of the case," said Harris, J., in delivering the opinion of the Court, " the defendants are obliged to carry on their business^ through the instrumentality of agents. Some are employed to construct or keep in repair their road- way ; others to construct or repair their engines and cars ; and others, again, to operate such engines and cars upon the road. For neglect, or want of skill in any of these, the defendants, as principals, are an- swerable to third persons. Whether the engine or car which they place upon the road for the purpose of carrying passengers has been manufactured in their own workshops, by agents employed directly for that purpose, or by a manufacturer engaged in the business of supplying such articles for sale, they are alike bound to see that, in, the construction, no care or skill has been omitted for the purpose of making such engine or car as safe as care and skill can make it. When such care and skill has been exercised, the defendants' duty, in this respect, has been discharged. If, on the other hand, a defect exists in the construction, which might have been detected and remedied, they are answerable for the consequences." ^ And, as to the duty of the defend- • To this point he cited Sharp v. Gray, 9 Bing. 457, and Ingalls v. Bills, 9 Met. 1, in the latter of which the cases bearing upon this ques- tion, both English and American, have been examined with great clear- ness and ability ; and the doctrine stated by Mr. Justice Hubbard, who pronounced the judgment of the Court, as the result of his examination, is, that " if an accident happens from a defect in the coach, which might have been discovered and remedied upon the most careful and thorough examination of the coach, such accident must be ascribed to negligence. On the other hand, if the accident arises from a hidden and internal de- fect, which a careful and thorough examination would not disclose, and 490 LAW OF HIGHWAYS. [CHAP. VIII. ants to provide their cars witli safety-heams, he also remarked : " But the plaintiff, without regard to the question arising upon the defect in the axle, had in- sisted that the defendants were liable by reason of tlieir omision to provide the car with a safety-beam. Evidence had been given to show that this im- provement had been extensively known and used prior to the time when the accident happened ; and, also, to show its utility as a safeguard against acci- dents. The evidence, though objected to, was prop- erly received. The defendants were bound to use every precaution which human skill and foresight could suggest to insure the safety of their passengers. If, then, it could be shown, that the safety-beam was an article of such established utility, and so exten- sively known, that it ought to have been used by the defendants upon their cars, they might justly be charged with negligence in not adopting it. The Judge was right, therefore, not only in receiving the evidence, but in submitting it to the jury, to say whether, taking into consideration the vigilance re- quired of carriers of passengers, and the publicity of the invention, and of its use prior to the time of the injury, the defendants were, or were not, negligent in not informing themselves of the utility and neces- sity of the invention, and availing themselves of it." -^ whioh could not be guarded against by the exercise of a sound judgment, and the most vigilant oversight, then the proprietor is not liable." ' It has been held, that it is the duty of the proprietor of a stage- coach to examine it previous to the commencement of every journey ; and, it has been said, where the vehicle is crowded with passengers, if no inspection of it takes place, previous to each journey, the proprietor or master is guilty of gross negligence. Bremmer v. Williams, 1 C. & Payne, 414; Ware v. Gay, 11 Pick. 106; Ingalls v. Bills, 9 Met. 1. And see Israel v. Clark, 4 Esp. 259 ; Camden and Amboy Railroad Co. CHAP. VIII.] TRAVEL UPOK RAILROADS. 491 § 388. Their lAdbility for the Conduct of their Servants or Agents. So it is the duty of the propri- etors of railroads to see that all the agents and ser- vants employed in the management of the road are careful, competent, and not addicted to intemperate* habits.^ Their responsibility, to passengers for inju- ries resulting from the default of their agents or servants extends to all acts done by them in the course of their employment, even though done in disobedience of orders. Thus, where a suit was brought against a railroad company, by a person who was injured by a collision, it was held, that if the plaintiff was lawfully on the road, at the time of the collision, and the collision and consequent injury to him were caused by the gross negligence of one of the servants of the company, then and there em- ployed on the road, he was entitled to recover, not- withstanding the circumstances, that the plaintiff was a stockholder of the company, riding by invita- V. Burke, 13 M^end. 611 ; Cole v. Goodwin, 19 Wend. 251 ; Story oa Bailments, § 592 ; Angell on Carriers, § 533 el seq. In New Jersey Railroad Co. v. Kennard, 21 Penn. 203, it was held, that an instruction to the jury, that " no car is good if the windows are not so constructed as to prevent the passengers from putting their limbs through them," is not erroneous, when applied to a car run on a railroad, which, in some places, is so narrow as to endanger projecting limbs. And see Miller v. Canal Commissioners, 21 Penn. 23. But the rule of responsibility does not require such particular precaution as is apparent after the accident might have prevented it, but such as would be dictated by the utmost care and prudence of a very cautious person, before the accident, and with- out knowledge that it was about to occur. Bowen v. New York Central Central Railroad Co. 18 N. Y. 408 ; .Grafton v. Western Railroad Co. 12 Jur. N. S. 272. And passenger carriers are not responsible for injuries, though guilty of neglect, unless their neglect contributed to the injury. Tinnery v. Pippinger, 1 Wallace, 543 ; Thayer v. St. Louis, &e. Railroad Co. 22 Ind. 26. ' Angell on Carriers, § 541. 492 LAW OF HIGHWAYS. [CHAP. YHI. tion of the president, paying no fare, and not in the usual passenger cars. And, also, that the fact that the engineer,. having control of the colliding locomo- tive, was forbidden to run on that track at the time, and had acted in disobedience of such orders, was no defence to the action.^ And even if a part of their road be intrusted to the management of servants or agents, employed and paid by another company, yet, it being within the scope of their duty to see that such part of their road is rightly constructed, attended, and managed, before they" are justified in carrying pas- sengers over it, they will be responsible for the neg- ligence of such servants or agents.^ In Pennsylvania, it has been held, that the owners of passenger cars i\sed upon a railroad belonging to the State are liable as common carriers for an injury sustained by a passenger occasioned by a collision of their trains, 1 Philadelphia Railroad Co. v. Derby, 14 How. (U. S.) 468 ; 20 Curtis, 291. And see Sleath v. Wilson, 9 Car. & Payne, 607 ; Williams v. The Madison and Indianapolis Railroad Co. 5 Ind. 340. But where a rail- road company, by its printed rules and regulations, prohibited its en- gineers from allowing any one, not in its employ, to ride upon the engines ; and the plaintiff applied to an engineer for permission to ride upon the engine, and was informed that it was against the rules of the company to carry him in that place, but the engineer finally consented that the plaintiff might ride with him, and he did so, without the knowl- edge of the conductor, and paying no fare ; it was held, that the consent of the engineer conferred no legal right, and that the plaintiff, not being lawfully upon the engine, was a wrongdoer, and could not recover dam- ages of the company for an injury sustained while riding in that place. And it was also held, that the onus was on the plaintiff, to show that the engineer had authority from the company to permit him to ride upon the engine ; the presumption being, that he had no right to be there, whether he paid fare or not. Robertson v. The New York and Erie Railroad Co. 22 Barb. 91. See Redfield on Railways, § 130 and note. ■ ' McEIroy v. The Nashua and Lowell Railroad Corp. 4 Cush. 400. Macher v. The London and Southwestern Railway Co. 2 Ex. 415 ; S. C. 5 Rallw. Co. 302. CHAP. VIII.] TRAVEL UPON EAILEOADS. 493 though the motive-power of the road was furnished by the State, and under the control of its agents, through whose negligence the accident happened.^ § 389. In a case of injury to a railroad passenger by collision, it appeared that the train had been hired of the company by a society for an excursion, the tickets for which were sold and distributed by the treasurer of the latter body, from whom the plaintiff purchased his, and that the accident was occasioned by the running, in the dark, against another train, which was standing still at an intermediate station on the line ; yet it was held that the company were liable for the accident, although the plaintiff's ticket was purchased of the treasurer of the society, they having constituted him their agent to contract with those who took the tickets, by giving him sUch tickets to distribute.^ § 390. The agents or servants of a railroad com- pany cannot, however, commit the company to a lia- bility which they have no power under their charter to contract. The agent of the defendants, who were a railroad corporation, running their cars from New Haven to Plainville, sold the plaintiff a ticket for the fare from New Haven to Collinsville, which was five miles beyond Plainville. The plaintiff, for injuries which he received in a stage running between Plain- ^ Peters v. Eyland, 20 Penn. 497. The agents of the company cannot bind the company in any matter beyond the line of his ordinary employ- ment ; but, if the company have ratified similar contracts of the agent, authority may be inferred. Slim v. Great Northern Railway Co. 26 Eng. Law & Eq. 297. They cannot affect the company by their admis- sion, except during the progress of their acts and as a part of the trans- action. Fletcher v. Boston and Maine Railroad Co. 1 Allen, 9. ' Skinner v. The London, Brighton and South Coast Railway Co. 2 Eng. Law & Eq. 360. 494 LAW OP HIGHWAYS. [CHAP. VHI. ville and CoUinsville, brought his action, upon a special contract to carry safely by railroad and stage from New Haven to CoUinsville. The defendants had never, by any corporate vote, expressly authorized or sanctioned contracts similar to that upon which the plaintiff declared, nor had their directors, by any vote, directed any such contract to be made, nor did their charter confer upon them any power to enter into the same. But the plaintiff claimed to have proved that the defendants, for more than six months before, and at the time of the sale of his ticket, had been and were in the daily usage of entering into and fulfilling contracts identically like that alleged in the declaration ; that, during that entire period, they had pubUcly represented and held themselves out to the community, through their duly authorized agents, and knowingly permitted their agents to represent them, as vested with powers requisite to enter into and fulfil such contracts ; that he, the plaintiff, had purchased his ticket upon the faith of such represen- tations ; and that, therefore, the defendants should be estopped from denying the obligations which their contract with him purported to create. But the Court held, that the company were not estopped by a contract which neither they nor their agents had any power to make, from showing their incapacity, under their charter, to incur the liability which was sought to be charged upon them.^ § 391. Their Responsibility for Injuries to Pas- sengers. And not only has the law taken measures ^ Hood u. The New York and New Haven Railroad Co. 22 Conn. 502; S. C. lb. 1. And the corporation cannot ratify such act. Down- ing V. Mt. Washington Railroad Co. 40 N. H. 230. CHAP. VIII.] TRAVEL UPON RAILROADS. , 495 for the security of travellers, by requiring of railroad companies the exercise of the utmost care and skill in the performance of their undertaking ; so that the most inconsiderable departure from their duties will render them liable for the consequences ; but in its scrupulous care to guard the public from all but the inevitable accidents of travel, it has gone still further, and imposed upon the carrier the onus of proving, in case of accident resulting in damage to his passengers, that the damage has resulted from a cause which human skill and foresight could not pre- vent.'^ Thus, in a case where an accident happened to a passenger on a railroad, Lord Denham, C. J., instructed the jury, that, it having been shown that the exclusive management of the machinery and the railway was in the hands of the defendants, it was presumable that the- accident arose from their want of care, unless they gave some explanation of the cause by which it was produced ; which explanation the plaintiff, not having the same means of knowl- edge, could not reasonably be expected to give.^ And- the same doctrine was recognized in a subse- quent English case of injury by collision, in which it was remarked : " This is not the case of two vehicles belonging to different persons running against each other, where no negligence can be inferred against either party in the absence of evidence as to which of them was to blame. But here all the trains be- long to one company, and whether the accident arose from the trains running at too short intervals, * Ang. on Carr. § 568. 2 Carpue v. The London and Brighton Railway Co. 5 Ad. & El. (N. S.) 747. 496 LAW OF HIGHWAYS. [CHAP. VHI. or from the mismanagement by their servants of any of the trains, or of their officers at the station, in not sending to stop the train that was coming on, they are equally liable. It was not necessary for the plaintiff to trace more specifically where the negli- gence lay; and if the accident arose from some inevitable fatality, it lay on the company to show it.^ This presumption of negligence, however, exists only in favor of passengers injured while lawfully in the course of conveyance by the proprietors of the road as common carriers.* § 392. The responsibility of the proprietors of railroads for the safety of their passengers, forms, however, no exception to the rule previously no- ticed,^ that where the injured party has contributed to the injury by his own carelessness or unauthor- ized conduct, he shall not recover damages except in case of gross negligence, and wanton or wilful wrong on the part of the proprietors of the road. Thus, where a passenger was taken on the train of a railroad company, to be transported for a short distance, and was told that the passenger cars were full, and that he must ride in the baggage car, and, having entered the baggage car, there commenced playing and scufiling with two fellow-passengers, and in the course thereof ran from the baggage car into the passenger car, and, the train being thrown from ^ Skinner v. The London, Brighton, and South Coast Railway Co. 2 Eng. Law & Eq. 360; and see Holbroolc v. The Utica and Schenec- tady Railroad Co. 16 Barb. 113; McKinney v. Niel, 1 McLean, 540; Stokes II. Saltonstall, 13 Peters, 181 ; 13 Curtis, 114 ; Christie v. Griggs, 2 Campb. 79. 2 Terry v. The New York Central Railroad Co. 22 Bai-b. 574. » Ante, § 345. CHAP. VIII.] TRAVEL UPON RAILROADS. 497 the track, rushed out at the forward end of the latter car, and jumped from the platform, by which his leg was broken ; it was held, that it was culpable negli- gence in him to put himself in that position, con- trary to the terms upon which he was received as a passenger, which made the leap necessary to escape the peril, and that, consequently, he was not en- titled to recover.^ So a man who should choose to ride on a railroad with his head and arms out of the car window, or who, in passing a dangerous place on the road, should disregard an audible warn- ing by the conductor of the danger of putting his head or limbs outside the car, would not ride like a prudent man, and would have to bear the conse- quences of his foolhardiness.^ ' Galena and Chicago Union Railroad Co. v. Yearwood, 15 HI. 468. ' New Jersey Railroad Co. v. Kennard, 21 Penn. 203. But it was said in that case to be the duty of the proprietors of railroads so to con- struct the windows of their cars, where designed for a road so narrow in places as to be dangerous to projecting limbs, as to prevent passengers from putting their limbs through. And if the car is not so constructed, it was said to be the duty of the conductor to give information of the danger at each particular place where there was any exposure to it. A general verbal warning would not be sufficient. " It would be of no ser- vice," said the Judge in his charge to the jury, afterwards adopted by the full Court, " to a foreigner ignorant of the language, or to a sleeping passenger, or to a child, incapable of reason. The utmost care of a par- ent or nurse is insufficient to restrain a child's curiosity to look at things outside. Should either of these be injured by the want of a proper con- struction of the car, an action would lie for it. Nor would written notice stuck up be any better. There may be passengers who cannot read, and they would, of course, not be affected by it. Others may get into the car at night, and some might not observe it even in the daytime, and neither of these would be chargeable with negligence At best, however, such notice is too general to be of service. It gives no more than general information, known to everybody without, that injury may result from putting heads or limbs through the windows ; and would sel- dom be recollected at the critical moment." 32 498 LAW OF HIGHWAYS. [CHAP. VHI. § 393. A lunatic was travelling in the cars, upon a railroad, in company with his father, who had paid the fare for both, and taken tickets. The father got out at a stopping-place, to procure refreshments, leaving his son in the cars, without giving notice to any one of his situation ; and while absent the train started. On regaining the cars, the father did not find his son where he had left him, the latter having changed his seat. The conductor, in the absence of the father, applied to the lunatic for his ticket, not knowing him to be insane, or that his fare had been paid. The lunatic refusing to deliver his ticket, the conductor caused the train to be stopped, and the lunatic to be put off the cars ; in consequence of which the lunatic was run over by another train of cars and killed. The evidence not showing any negligence or want of care on the part of the con- ductor, but showing great negligence and imprudence in the conduct of the lunatic and his father ; it was held^ that an action could not be maintained by the personal representative of the lunatic, against the rail- road company, under the New York statute, author- izing the recovery of damages in case of death by the wrongful act, neglect, or default of another.^ § 394. Where, however, there is a choice of posi- tions upon a railroad, either of which a passenger may lawfully take, the application of this rule does not oblige him to select that which is the least dan- gerous. In Carroll v. The New York and New Haven Eailroad Company,^ the plaintiff was injured ' Willetts V. The Buffalo and Eoohester Railroad Co. 14 Barb. 585. ^ Carroll v. The New York and New Haven Railroad Co. 1 Duer, 571. CHAP. VIII.J TRAVEL UPON EAILROADS. 499 by a collision of two trains running in opposite directions. The plaintiff was, at the time of the coUision, in the post-ofl&ce apartment of the baggage car, being lawfully there, and with the acquiescence of the conductor. It was a much more dangerous loca- tion, on the happening of such a collision as took place, than a seat in the passenger cars, and he knew this fact ; and, had he been in a passenger car, he would not have been injured, unless the collision had been productive of consequences to him not suffered by any one in a passenger car. It was held, that negli- gence is the violation of the obligation which enjoins care and caution in what we do, and that the plain- tiff, not being under an obligation to be more pru- dent and careful than he was, in contemplation of there possibly being such culpable conduct on the part of the defendants as would endanger his life, if he remained where he was, and his personal safety on any part of the train, and, not being a trespasser, was not to be precluded from his action because he might have selected a position of comparative safety. § 395. And though a passenger may have been upon the cars in violation of the rules of the railroad company, yet, if it appears to the jury that these rules have been waived or revoked in his favor, he will nevertheless be entitled to his action for injuries suffered from any want of care on the part of the company. In an action of this description, the evi- dence tended to show that the reporters for " Bell's Life in London," of whom the plaintiff was one, when going to the races in that capacity, were accustomed to travel free. The plaintiff, acting honafide, as such 500 LAW OP HIGHWAYS. [CHAP. Tin. reporter, was supplied with a ticket, which bore the name of a person connected with the paper, but not the plaintiff's, and on it were the words. Not trans- ferable, and a memorandum that any other person using it than the person named in it would be liable to a penalty, as if he was a passenger who had not paid his fare. Having showed this pass to one of the servants of the defendants at the station, who said it was all right, and opened the door of the car- riage for him to enter ; it was held, that there was evidence to go to the jury that the plaintiff was law- fully in the carriage, and if the jury were of the opinion that this irregular use of the tickets, how- ever worded, was with the knowledge and permission of the superintendents of the station, who were placed there to regulate such matters, this would be such proof of license as would make it wrong to say the plaintiff was a trespasser in the carriage.-' § 396. Their Responsibility for Injuries to Per- sons other than Passengers. The responsibility of the proprietors of railroads for injuries, occasioned to persons and property, not in the course of trans- portation on their road, is precisely the same as that of the proprietors of any other vehicle upon the common highway; that is, they are liable for the want of ordinary care, skill, and diligence on the part of themselves or their servants or agents, unless the party injured has contributed to the injury by the want of ordinary care on his own part ; in which case they will not be liable except for gross negli- ' The Great Northern Railway Company v. Harrison, 26 Eng. Law & Eq. 443 ; and see Collett v. The London and Northwestern Railway Co. 6 Eng. Law & Eq. 305. CHAP. Vin.] TRAVEL UPON RAILROADS. 501 gence or intentional wrong.^ Thus, where a person, while walking upon the track of a railroad, in one of the streets of a city, was struck down and run over by a locomotive and tender, it was held, the proprietors of the road were responsible for no more than ordinary care, and that a charge to the jury that they were bound to exercise the utmost care and diligence was erroneous.^ Where the law re- quires that a bell or whistle shall be sounded before crossing any other road, the omission so to do is prima fade proof of negligence, yet, even in such case it is incumbent on the plaintiff to give some proof tending to show that the injury complained of resulted from the want of a signal, and that he him- self was in the exercise of ordinary care, in order to entitle him to recover.^ And where it appears from the plaintiff's testimony, which is clear, explicit, and undisputed, that the negligence and imprudence of the party injured contributed to the injury, the Court may probably nonsuit the plaintiff, instead of sub- mitting the question of negligence to the jury.* § 397. In an action against a railroad company for running over and killing a slave, where it appeared ' Ante, § 345 et seq. . ' Brand v. The Schenectady and Troy Railroad Co. 8 Barb. 368 ; Spencer v. The Utica and Schenectady Railroad Co. 5 Ibid. 337; Bur- ton V. Railroad Co. 4 Har. 252. ' Galena, &c. Railroad Co. v. Loomis, 13 111. 548 ; and see Wilson v. Rochester and Syracuse Railroad Co. 16 Barb. 167 ; Bradley v. The Boston and Maine Railroad Co. 2 Cush. 539 ; Gleason v. Briggs, 28 Vt. 185; Linfield v. Old Colony Railroad Co. 10 Cush. 562. * Haring v. New York and Erie Railroad Co. 13 Barb. 9 ; and see The Aurora Branch Railroad Co. v. Grimes, 13 111. 585 ; New York and Erie Railroad Co. v. Skinner, 19 Penn. 298 ; Dascomb v. Buffalo and State Line Railroad Co. 27 Barb. 221 ; Mackayw. New York Central Railroad Co. 27 Barb. 528 ; Illinois Central Railroad Co. v. Buckner, 28 111. 299. 502 LAW OP HIGHWAYS. [CHAP. VHI. that the slave was asleep on the track, that the cars were going at their usual speed and at the usual hour, and the engineer, when within a short dis- tance of the slave, attempted to stop the cars by letting off the steam and reversing the wheels, but the impetus which they had received carried them on about seventy yards before they stopped ; it was held, that this was not a case of negligence to sub- ject the company to damages. The negroes being reasonable beings, endowed with intelligence, as well as the instinct of self-preservation and the power of locomotion, it was natural and reasonable to sup- pose that they would get out of the way, and the engineer was not guilty of negligence because he did not act upon the presumption that they had lost their faculties by being drunk or asleep. If, it was added, the cars are to be stopped whenever a man is seen walking on the track, lest perchance he may be a deaf mute, and, whenever negroes are seen lying on the track, lest they may be drunk or asleep, a knowledge of this impunity would be an induce-' ment to obstruct the highway and render it im- possible for the company to discharge their duty to the public as common carriers. The proximate cause of the slave's death being his own voluntary imprudence, the company were not liable.^ § 398. Injuries to Cattle astray upon the Road. Closely allied to this modification of liability, by the negligence of the party injured, is the principle by ' Herring v. The Wilmington and Raleigh Railroad Co. 10 Ired. 402 ; Richardson v. Railroad Co. 8 Rich. 120; Felder v. Railroad Co. 2 Mc- Mullen, 403; and see Macon and Western Railroad v. Davis, 13 Geo. 68. CHAP. VIII.] TRAVEL UPON EAILROADS. 503 which trespassers, injured in the act of trespassing, are denied redress, except where the proprietors of the railroad have been guilty of gross negligence or intentional wrong. This principle has been oftenest apphed to cases of cattle injured or killed while stray- ing upon the track of the road. It is well settled that the proprietors of a railroad are not under obli- gation to fence their road, to prevent cattle from straying upon it, unless they are required so to do ; and, though unfenced, the entry of cattle thereon is a trespass. And, being unlawfully upon the road, the proprietors of the road owe them no duty of care and diligence, and consequently their owners are entitled to no remedy, if they fail to receive it. The trespass of the cattle is, in the eye of the law, the trespass of their owners, and subjects them to the rule, which precludes the recovery of damages for injuries occasioned, in the whole or in part, by the plaintiff's wrong.^ And though cattle are law- ' The Tonawanda Railroad Co. v. Miinger, 5 Denio, 255 ; S. C. 4 Comst. 349 ; Tower v. Providence and Worcester Eailroad Co. 2 E. I. 404 ; Perkins v. The Eastern, &e. Eailroad Co. 29 Maine, 307 ; Vande- grift V. Eediker, 2 N. J. 185 ; Eicketts v. Junction Eailway Co. 12 Eng. Law & Eq. 521 and note ; Vanderkar v. The Eensselaer and Saratoga Eailroad Co. 13 Barb. 390 ; Towns, &o. v. Cheshire Eailroad Co. 1 Post. 363 ; Parker v. The Rensselaer and Saratoga Eailroad Co. 16 Barb. 315; Williams v. Michigan Central Railroad Co. 2 Mich. 259; Great Western Railroad Co. v. Thompson, 17 111. 131 ; Central Military Tract Railroad Co. v. Rockafellow, lb. 541 ; Illinois Central Railroad Co. v. Reedy, lb. 580 ; Langlois v. Buifalo and Rochester Railroad Co. 19 Barb. 364; The New York and Erie Railroad Co. v. Skinner, 19 Penn. 298; Manchester Railway Co. v. Wallis, 25 Eng. Law & Eq. 373. But see, to the contrary of this rule, Banner v. South Carolina Railroad Co. 4 Rich. 329; Kerwhacker v. C. C. & C. Railroad Co. 3 Ward & Smith, 172. In the latter case, it was held, that the rule of the Common Law of Eng- land, requiring the owners of cattle to keep them on their own lands, had never been in force in Ohio, being inapplicable to the circumstances, 504 LAW OF HIGHWAYS. [CHAP. VIII. fully put or suffered to be upon the public high- ways, and from thence stray upon the track of a condition, and usages of the people, and also inconsistent with the legis- lation of the State. That the right of a railroad company to the free, exclusive, and unmolested use of its railroad tract, is nothing more than the right of every land proprietor in the actual use and occupancy of his lands ; and, having left its railroad unenclosed through a country where domestic animals are allowed to be at large, they take the risk of intrusions upon their roads by such animals, and are bound to use, at least, ordinary and reasonable care and diligence to avoid unnecessary injury to them. And where railroad companies are required by statute, or by the terms of their charters, to fence their roads, the rule laid down in the text is inapplicable. See ante, § 21. It is the duty, by lajv, of the Vermont Central Railroad Company, to erect and maintain such fences and cattle-guards upon their road as will prevent horses and other animals from passing them. Quimby v. Vermont Central Kailroad Co. 23 Vt. 393. Yet the degree of negligence of which the corporation will be held guilty, in the omission to discharge this duty, will depend on the locality of their road, and of the particular place in respect to which the omission occurs ; and it has been held, that it Is the duty of the owner of cattle, knowing the exposed situation of the railroad track, to exercise as much care and prudence in keeping his property from expos- ure, as is required of the company in guarding against injuring them ; and if he permits his cattle to run in the highway, knowing that there is no obstruction to their passing from thence upon the railroad track, he is guilty of the same degree of negligence as that with which the company are chargeable in permitting their road to remain thus exposed. Trow t!. The Vermont Central Railroad Co. 24 Vt. 487; Jackson v. Rutland and Burlington Railroad Co. 25 Vt. 150. But see Hurd v. The Same, lb. 116. For the rule, in New York, where the proprietors of the rail- road are required to fence, see ante, § 21. The failure of a railroad company to erect cattle-guards and fences, as required by statute, does not make the company liable for damages to cattle which have entered on the railroad from the owner's land, through the want of a fence, which the owner was bound by agreement to build, and keep in repair. Talmadge v. The Rensselaer and Saratoga Railroad Co. 13 Barb. 493. And see Clark v. Syracuse and Utiea Railroad Co. 11 lb. 112. But see Norris v. Androscoggin Railroad Co. 39 Me. 273. And so, where the cattle of a stranger are on the lands of another, and pass upon a railroad through a gate left open by the proprietor of such lands, and are killed, the company are not liable. Brooks v. The New York and Erie Rail- road Co. 13 lb. 594. But see Nashville, &c. Railroad Co. v. Peacock, 25 Ala. 299. Neither is a railroad company, by omitting to fence its road, CHAP. VIII.] TRAVEL UPON RAILROADS. 505 railroad, and are there injured or killed by the pas- sage of the cars, they are, nevertheless, trespassers, and their owners will not, under the above rule, be entitled to recover, unless the proprietors of the road have rendered themselves liable by the omission of some duty or precaution required by statute, or have been guilty of gross negligence or intentional wrong.'^ § 399. Injuries to Servants hy the Negligence of Fellow-Servants. Another qualification of the liabil- ity of railroad companies is, that they are not an- made responsible for injuries done by their locomotive to cattle straying upon their track, through the negligence and carelessness of their owner ; and it is held to be gross negligence for a person to suffer his cattle to go at large on the highways, in the immediate vicinity of a railroad, whether the railroad be fenced or not. Marsh v. The New York and Erie Rail- road Co. 14 Barb. '364. And see Perkins v. Eastern Railway Co. 29 Me. 307. -Where a railroad company run their cars, by arrangement, pver the road of another company, who have omitted to comply with the statutes in regard to cattle-guards and fences, the former company is not liable to an injury to cattle straying on the road, in consequence of such omission. Parker v. The Rensselaer and Saratoga Railroad Co. 16 Barb. 315. In Indiana, under their statutes, railroad companies must fence in their roads, or pay for all animals straying from adjoining lands without fault' of the owner, killed or injured, in running the road, without regard to the question of negligence, misconduct, or inevitable accident. W^il- liams V. The New Albany, &c. Railroad Co. 5 Ind. 111. In Fawcett v. IJorth Midland Railway Co. 2 Eng. Law & Eq. where the act required the defendants to keep gates constantly closed at road-crossings, and the plaintiff's horse leaped out of his enclosure into the highway, and passed on to the railroad, because the gate was open, it was held, that the horse, as to the defendants, was lawfully on the highway, and therefore the plaintiff was entitled to recover. And see Towns v. Cheshire Railroad Co. 1 Post. 363 ; Cornwall v. Sullivan Railroad Co. 8 Post. 161 ; Jones V. Waltham, 4 Cush. 499 ; Waldron v. Rensselaer, &c. Railroad Co. 8 Barb. 390 ; Terry v. New York Central Railroad Co. 22 lb. 574 ; An- gell on Carriers, § 567 c, and note ; Gristman v. Railroad Co. 1 Kelly, 173. ^ The Tonawanda Railroad Co. v. Munger, 5 Denio, 255 ; Clark v. Syracuse and Utica Railroad Co. 11 Barb. 112. 606 LAW OF HIGHWAYS. [CHAP. VIH. swerable to their agents or servants for injuries received, in consequence of the misfeasance or neg- ligence of other agents or servants, while engaged in the same common service. The earliest reported case in which this principle was asserted is that of Priestley v. Fowler,^ determined in the Court of Ex- chequer, in 1837. The action was brought by a servant against his master, for the negligence of another servant in overloading a van, by which the plaintiff was injured. Chief Baron Abinger, in deliv- ering the opinion, remarked, that there was no pre- cedent for such an action, and he rested his opinion, that the master was not liable to such an action, upon the broad ground, that, from the mere relation of master and servant, no contract, and therefore no duty, can be implied on the part of the master, to cause the servant to be safely and securely carried, or to make the master liable for damage to the ser- vant, arising from any vice or imperfection, unknown to the master, in the carriage, or in the mode of loading or conducting it. " The servant," he ob- served, " is not bound to risk his safety in the ser- vice of his master, and may, if he thinks fit, decline any service in which he reasonably apprehends in- jury to himself; and in most of the cases in which danger may be incurred, if not in all, he is just as likely to be acquainted with the probability and ex- tent of it as his master. In that sort of employment, especially, which is described in the declaration in this case, the plaintiff must have known as well as ' Priestley v. Fowler, 3 Mee. & Welsb. 1, affirmed in Wigmore v. Jay, 5 Exoh. 354 ; Hutchinson v. The York, Newcastle, &c. Railway Co. lb. 343. CHAP. VIII.] TRAVEL UPON RAILROADS. 507 his master, and probably better, whether the van was suiScient, whether it was. overloaded, and whether it was likely to carry him safely. In fact, to allow this sort of action to prevail would be an encourage- ment to the servant to omit that diligence and caution which he is in duty bound to exercise on the behalf of his master, to protect him against the misconduct or negligence of others who serve him, and which diligence and caution, while they protect the master, are a much better security against any injury the servant may sustain by the negligence of others en- gaged under the same master, than any recourse against his master for damages could possibly af- ford." 1 § 400. The rule, thus laid down, was recognized ' Chief Baron Abinger also exposed tte absurdity of the action, by tracing the alarming consequences of admitting the principle upon which it was sought to be maintained. " He who is responsible by his general duty," was his language, " or, by the terms of his contract, for all the consequences of negligence in a matter in which he is the principal, is responsible for the negligence of all his inferior agents. If the owner of the carriage is therefore responsible for the sufficiency of his carriage, to his servant, he is responsible for the negligence of his coach-maker, or his harness-maker, or his coachman. The footman, therefore, who rides behind the carriage, may have an action against his master for a defect in the carriage, owing to the negligence of the coach-maker, or for a de- fect in the harness, arising from the negligence of the harness-maker, or for drunkenness, neglect, or want of skill in the coachman ; nor is there any reason why the principle should not, if applicable to this class of cases, extend to many others. The master, for example, would be hable to the servant for the negligence of the chambermaid, for putting him into a damp bed ; for that of the upholsterer, in sending in a crazy bed- stead, whereby he was made to fall down while asleep, and injure him- self; for the negligence of the cook, in not properly cleaning the copper vessels used in the kitchen ; of the butcher, in supplying the family with meat of a quality injurious to the health ; of the builder, for a defect in the foundation of the house, whereby it fell, and injured both the master and the servant by the ruins." 508 LAW OF HIGHWAYS. [CHAP. VIII. in the case of Skip v. The Eastern Counties Eailway Company.^ The plaintiff was a guard in the service of the defendants, a railway company, and his duty was to attach certain carriages to the engine of a goods train, and to despatch the same within a cer- tain time, so as to avoid collision with a passenger train. In consequence of the plaintiff's not having had another person to assist him, the engine started, threw him upon the rails, and a truck passed over his arm. The plaintiflf, for three months previously, had done the same work without any assistance, and without making any objection. It was held, in an action for compensation for the injury, that the plain- tiff, having voluntarily undertaken the duty, was not entitled to recover: And, in that case, it was said, that, although the defendants were bound to see that their servants were persons of proper care and skill, yet that they, and not the jury, were judges of the sufficiency of their number ; and if the plaintiff thought the duties were more than he could perform, he ought to have left the service, or not to have originally accepted it. § 401. In this country, in the States of South Carolina, Massachusetts, and New York, the same principle has been recognized and affirmed.^ In Far- well V. The Boston and Worcester Eailroad Com- pany,^ the plaintiff, an engineer on the road of the ^ Skip V. Eastern Counties Railway Co. 24 Eng. Law & Eq. 396. ' Murray v. South Carolina Railroad Co. 1 McMuUen, 385 ; Coon v. The Syracuse and Utica Railroad Co. 6 Barb. 231 ; S. C. 1 Seld. 574; Sherman v. The Rochester and Syracuse Railroad Co. 15 Barb. 574; Brown V. Maxwell, 6 Hill, 592. ' Farwell v. The Boston and Worcester Railroad Co. 4 Met. 49, affirmed in Hayes v. Western Eailroad Co. 3 Cush. 270. CHAP. VIII.] TRAVEL UPON RAILEOADS. 509 defendants, brought his action for injuries sustained in consequence of the negligence of a switch-tender upon that road. Shaw, C. J., pronounced the action " one of new impression in our Courts," and he con- sidered it an argument against such an action (though not a decisive one), that no such action had before been maintained. He held, that the general considerations of policy and security which render the master responsible to strangers for the negli- gence of the servant while in the course of his mas- ter's service, do not apply to the case of a servant bringing his action against his own employer, for in- juries arising in the course of that employment, "where all such risks and perils as the employer and the servant respectively intend to assume and bear may be regulated by the express or implied contract between them, and which, in contemplation of law, must be presumed to be thus regulated." The liability, therefore, if maintained at all, must be maintained on the ground of contract ; and, the learned Judge contended, there being no express contract between the parties applicable to this point, the contract must be an implied contract of indem- nity, arising out of the relation of master and ser- vant. And he was of the opinion that there was nothing in that relation from which such a contract could be inferred ; the general rule, resulting from considerations as well of justice as of policy, being, that he who engages in the employment of another for the performance of specified duties and services, for compensation, takes upon himself the natural or- dinary risks and perils incident to the performance of such services, and, in legal presumption, the com- 510 LAW OF HIGHWAYS. [CHAP. Tin. pensation is adjusted accordingly. And he also thought, while from the nature of the relation no such contract can be inferred, there are no grounds of policy or general expediency which should dispose Courts to establish a responsibility aside from what is necessarily implied. For each servant, in a com- mon employment, being an observer of the conduct of the others, can give notice of any misconduct, inca- pacity, or neglect of duty, and leave the service, if the common employer omits such remedy as the safety of all requires ; and, by these means, more effectu- ally secure the safety of each than he could by a resort to the employer for indemnity in every case of loss by the negligence of a fellow-servant. Ee- garding the case in this light, he considered it the ordinary case of one sustaining an injury in the course of his own employment, in which he must bear the loss himself And it was accordingly held, that the defendants, having used due diligence in the selection of competent and trusty servants, and fur- nished them with suitable means to perform the service in which they employed them, were not answerable to one of these servants for an injury re- ceived by him in consequence of the carelessness of another. § 402. In Ryan v. The Cumberland Valley Rail- road Company,^ the plaintiff was a common laborer, employed in digging and filling cars with dirt and such like work, for the purpose of repairing the road, and the work was carried on partly by means of a ' Eyan v. The Cumberland Valley Railroad Co. 23 Penn. St. 384 ; and see Mitchell v. The Pennsylvania Railroad Co. 1 Am. Law Reg. 717; Strange v. McCormick, 10 Am. Law Journal, 398. CHAP. Vni.] TRAVEL UPON EAILEOADS. 511 train of gravel cars, made to dump, to either side, and moved by locomotive power. As the hands boarded about four miles distant from their vFork, it was usual for them to ride to and fro in the gravel cars. While the plaintiff and others were thus going to their work, at railroad speed, the accident complained of happened, by the dumping of one of the cars, which seems not to have been hooked, and throwing the plaintiff out upon the road. The _ Court held, that the accident, having resulted from the carelessness of a fellow-servant, fell within those ordinary risks of the plaintiff's employment against which the law furnished no protection but by an ac- tion against the actual wrongdoer. And they re- marked, that a different rule would have very little application to great corporations, for they would im- mediately act on the maxim, conventio vincit legem, and provide against it in their contracts. But it would live to embarrass the more private and cus- tomary relations,' and be the source of abundant liti- gation. § 403. In Ohio, however, this exemption of the master from liability to his servant for injuries re- sulting from the carelessness of a fellow-servant, has been limited to the case where both servants stand as equals to each other, and no power or control is given to the one over the other. This limitation is based upon the reason that the case of an injury to a subordinate by his superior is not the case of an injury by a fellow-servant, but that the superior stands to the subordinate in the place of the master himself, and that, therefore, the master is responsible to him for the negligence and misfeasance of the 512 LAW OP HIGHWAYS. [CHAP. VIII. superior in the same manner that he would be for his own. In Eaihoad Company v. Keary (Keary the plaintiff below), a brakemari on one of the trains of the company brought his action to recover dama- ges for injuries occasioned without his faialt, by the conductor of the train, or the superintendent of the road ; the plaintiff at the time, by the rules and reg- ulations of the company, being subject to the orders .of said conductor and superintendent. The Court held that he was entitled to recover. And their Ian. guage was : " This conclusion rests wholly upon the idea that the company, from the very nature of the contract of service, is under obligations to them, as well as they to the company ; and that amongst their obligations is that of superintending and controlling, with skill and care, the dangerous force employed, upon which their safety so essentially depends. For this purpose, the conductor is employed, and in this he directly represents the company. They contract for and engage his dare and skill. They commission him to exercise that dominion over the operations of the train which essentially pertains to the preroga- tives of the owner, and he is in the discharge of a duty which the owner, as a man and a party to the contract of service, owes to those placed under him, and whose lives may depend on his fidelity. His will alone controls everything, and it is the will of the owner that his intelligence alone should be trusted for this purpose. This service is not common to him and the hands placed under him. They have nothing to do with it. His duties and their duties are entirely separate and distinct, although both neces- sary to produce the result. It is his to command, CHAP. VIII. J TRAVEL UPON KAILROADS. 513 and theirs to obey and execute. No service is com- mon that does not admit a common participation ; and no servants are fellow-servants, when one is placed in control over the other. The servants em- ployed to execute cannot recover for injuries arising from a failure in that part of the business com- mitted to them, because it is their failure, and not that of their employer ; and although it should hap- pen from the negligence of but one of them, yet each one entered the common service with a knowl- edge that others must be engaged, and that they were jointly bound to perform what was jointly in- trusted to them, and public policy may be concerned in their keeping a supervision over each other for the purpose. But how this can be made to extend to the conductor, over whose acts they have no su- pervision or control, and are not presumed to be possessed of the requisite intelligence for the pur- pose, we are wholly unable to see ; and equally so, how the safety of travellers is likely to be jeoparded by adding to the responsibility of the conductor for his carelessness, that of the company that places him in power." ^ > The Cleveland, Columbus, and Cincinnati Railroad Co. v. Keary, 3 Ohio St. 201 ; affirming Stevens v. Little Miami Railroad Co. 20 Ohio, 415. The Court, in the above cases, were evidently inclined to repudi- ate the rule of Priestley v. Fowler altogether ; and, in the former case, they referred to Dixon v. Ranken, 1 Am. Railway Cases, 569, determined by the highest Court in Scotland, in 1852, in which the English doctrine was rejected as contrary to the law recognized in that tribunal. In that case. Lord Cockburn, after alluding to the English cases, and to the fact that the rule had been pressed upon the Court, not only on account of the weight of the English authority, but for its own inherent justice, re- marked : " This last recommendation fails with me, because I think that the justice of the thing is exactly in the opposite direction. I have 33 514 LAW OF HIGHWAYS. [CHAP. Vin. § 404. In Farwell v. The Boston and Worcester Eailroad Corporation, it was urged upon the Court, that the rule, though applicable when two or more servants are in the same department of duty, could not apply where two or more are employed in dif- ferent departments of duty, at a distance from each other, and where one could in no degree control or influence the conduct of another. But the Court overruled the distinction with the remark, that " when the object to be accomplished is one and the same, when the employers are the same, and the several persons employed derive their authority and their compensation from the same source, it would be extremely diffi.cult to distinguish what constitutes one department and what a distinct department of duty." And they further said, that the rule did not rest upon the opportunity which servants enjoy to provide for their safety or to supervise the conduct of their fellow-servants, as taken for granted in the rarely come upon any principle that seems less reconcilable to legal reason. I can conceive some reasons for exempting the employer from liability altogether, but not one for exempting him only when those who act for him injure one of themselves. It rather seems to me that these are the very persons who have the strongest claim upon him for repara- tion, because they incur danger on his account, and certainly are not understood, by our law, to come under any engagement to take those risks on themselves." And see Hayes v. The Western Railroad Co. 3 Cush. 270, where the point decided in the Ohio ceises was raised, but not passed upon by the Court ; also Sherman v. The Rochester and Syracuse Railroad Co. supra, in which a brakeman brought his action for damages for injuries occasioned by the negligence of the conductor, and was held entitled to recover, though it does not appear that the distinction made in the Ohio cases was there directly preyed upon the Court. And see Coon V. Syracuse and Utica Railroad Co. 6 Barb. 231, where also the distinction was suggested, but not admitted. In Georgia, it has been de- cided that the rule does not apply to a case where the servant who is injured is a hired slave. Scudder v. Woodbridge, 1 Kelly, 195. CHAP. VIII.] TRAVEL UPON RAILROADS. 515 distinction pressed upon the Court, but upon the ab- sence of any implied contract or obligation of in- demnity on the part of the master. And it may be stated as the settled doctrine of the law, that where servants, acting in different spheres of employment under the same employer, yet contribute necessary portions of labor or service to the carrying out of one primary object ; as, for instance, in the case of a railroad, to the safe and speedy transportation of passengers and freight, they are to be accounted fel- low-servants, and are subject to the rule above dis- cussed.-^ § 405. In Priestley v. Fowler, it did not appear that the defendant knew of any vice or imperfection in the carriage, or in the mode of loading or conduct- ing it, by which the accident was alleged to have happened ; and the Court refrained from expressing any opinion as to what would have been his liability ' Coon V. Syracuse and Utica Railroad Co. 6 Barb. 231. The general rule, that the employer is not liable to employees for injuries caused by the carelessness of a fellow-servant, employed in the same business, estab- lished in the United States in the case of Farwell v. Boston and Worces- ter Railroad Co. supra, has been adopted in very numerous cases in the States where it has been -considered. Coon v. Syracuse and Utica Rail- road Co. supra, Homer v. Illinois Central Railroad Co. 15 111. 5.90 ; Ryan v. Cumberland Valley Railroad Co. 23 Penn. St. 384 ; Madison and Indiana Railroad Co. v. Bacon, 6 Porter, 205 ; Carle u. B. and P. Canal and Railroad Co. 43 Me. 269 ; Noyes v. Smith, 28 Vt. 59 ; Redfield on Railways, § 131 and cases cited. And in those States where it has seemed to be doubted, the question has been rather as to the extent of its application, than the correctness of the general rule. And injuries caused by servants of the same principal, employed in a higher grade of empleyment, are held not to be caused by the acts of fellow-servants strictly within the meaning of the rule. Waalan v. Mad River and Lake Erie Railroad Co. 8 Ohio St. 249 ; Scudder v. Woodbridge, 1 Kelly, 195; Louisville and Nashville Railroad Co. u. Collins, 5 Am. Law Reg. (N. S.) 265. 516 LAW OF HIGHWAYS. [CHAP. Till. provided such knowledge had appeared. They, how- ever, remarked that the master was, without doubt, bound to provide for the safety of his servant in the course of his employment, to the best of his judg- ment, information, and belief From this and from the dicta and observations scattered through the cases in which this subject has been consideredj it is evident that where the principal is wilfully negli- gent of his duty to provide suitable vehicles and to. employ servants of proper skill and habits, he will be responsible to his servants for the consequences of such negligence. And it has been held, that a railroad company, which, having had notice that one of its locomotive engines was defective and danger- ous, yet continued to run it, was responsible to a servant of the company, employed to use it, for an injury sustained by him, without fault on his part, in consequence of such defects.^ § 406. In Tarrant v. Webb, the plaintiff, who was at work for the defendant upon a scaffolding, erected by another servant of the defendant, was injured by the falling thereof The learned Judge, in summing up, told the jury that the defendant would be liable, if he employed incompetent persons to erect the scaffold- ing, and the jury thereupon returned a verdict for the plaintiff. It did not appear that the defendant knew his servant to be incompetent. A rule nisi for a new trial was obtained on the ground of misdi- rection, for that the employment by the defendant of incompetent persons simply would not make him liable, and at all events would not do so unless he knew ' Keegan v. The Western Railroad Co. 4 Seld. 1 75 ; Noyes v. Smith, 28 Vt. 59. CHAP. VIII.] TRAVEL UPON KAILKOADS. 517 of the incompetency, and the plaintiff did not. But p&T Jarvis, C. J. : " It may not be necessary for the other servants to make out that the master Ttmw of the incompetency of his servant, but it may be enough to say that he was bound to use ordinary care to em- ploy competent persons!' And the Court granted a new. trial, because, under the charge of the Judge at Nisi Prius, the jury might have been of the opinion that the defendant had taken great care in the se- lection of the person who erected the scaffolding, and yet that he was incompetent for the work, and so have returned the verdict which they did. The mas- ter, it was remarked, cannot warrant the competency of his servants.-^ § 407. Injuries resulting in Death. At common law, an injury resulting in the immediate death of the party injured, furnishes no ground for an action for damages.^ But recently, by statutes, both in England and in many of the States of this country, the com- mon law, in this respect, has been modified. In Eng- land, it is enacted by statute 9 & 10 Vict. c. 93, § 1, that "whensoever the death of a person shall be caused by wrongful act, neglect, or default, and the act, neglect, or default is such as would (if death had not ensued) have entitled the party injured to main- tain an action, and recover damages in respect there- • Tarrant v. Webb, 37 Eng. Law & Eq. 281 ; Hurd v. Vermont and Canada Railroad Co. 32 Vt. 473 ; Wiggett v. Fox, 36 Eng. Law & Eq. 486; Gilman v. Eastern Bailroad Co. 13 Allen, 433. ^ Baker v. Bolton, 1 Camp. 493 ; Carey and Wife v. The Berkshire Railroad Co.; Skinner v. The Housatonic Railroad Corp. 1 Cush. 475. In Ford v. Monroe, 20 Wend. 210, the plaintiff was allowed to recover for the loss of the service of a child, who was run over and killed ; but see the remarks of Metcalf, J., upon this case in Carey and Wife, &c. 1 Cush. 478, 479. 518 lAW OF HIGHWAYS. [CHAP. VIII. of, then and in every such case the person vs^ho would have been liable if death had not ensued, shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony." By section 2, it is further enacted, " That every such action shall be for the benefit of the wife, husband, parent, and child of the person whose death shall have been so caused, and shall be brought by and in the name of the executor or administrator of the person deceased ; and in every such action the jury may give such damages as they may think proportioned to the injury resulting from such death to the parties respectively, for whose benefit such action shall be brought ; and the amount so recovered, after deducting the costs not recovered from the defendant, shall be divided amongst the before-mentioned parties, in such shares as the jury by their verdict shall find and direct." By section 3, the action for damages must be brought within twelve calendar months after the death of such de- ceased person. In a case involving the construction of this statute, the question was whether the jury, in giving damages apportioned to the injury resulting from the death of the deceased, to the parties for whose benefit the action was brought, were confined to injuries of which a pecuniary estimate may be made, or may add a solatium to those parties in re- spect of the mental suffering occasioned by such death ; and it was held by the Court of Queen's Bench, that the latter could not be taken into consideration.^ § 408. In an action under a similar statute, in • Blake v. The Midland Railway Co. 10 Eng. Law & Eq. 437. CHAP. VIII.] TRAVEL UPON RAILROADS. 519 Pennsylvania,^ the Court allowed the jury to find the damages according to the value of the life lost ; and suggested that, in estimating them, they might com- pute them by the probable accumulations of a man of such age, habits, health, and pursuits as the de- ceased, during what would probably have been his lifetime ; and then added : " I think this would be a fair measure' of damages in this case ; but if the jury can find a better rule than the one suggested, they are at liberty to adopt it." On a motion for a new trial for misdirection, the charge of the Court was approved, and Lowrie, J., in delivering the opinion of the Court above, remarked : " From our present ex- perience and observation, we are unable to discover any substantial error in the instructions complained of It would be wrong to limit the value of a man's life by his probable accumulations, for many men make none in a lifetime, and many have arrived at an age when they no longer attempt to make any, and many women never make any ; and yet every one is entitled to his life, and we have as yet discov- ered no standard for its valuation. It is not human possessions that are destroyed, but humanity itself ; and as this has no market value, it must necessarily be very much a matter of human feeling. Hard, then, as the task may be, and however uncertain its re- sults, it is to be performed by the jury, aided by the cautions and counsels of the Judge, who has been trained in the consideration of juridical questions. Looking, on the one hand, to the dignity of human nature, as it has been assailed, and on the other to the position and rights of the defendant, and considering » Pennsylvania Railroad Co. v. McCloskey's Adm'r, 23 Penn. 526. 520 LAW OF HIGHWAYS. [CHAP. VIII. the dignity of their positions as judges of most sacred right, and their own dignity and responsibility as in- dividuals, and loving mercy even while doing justice, the jury must place a money value upon the life of a fellow-being, very much as they would upon his health or reputation. The law can furnish no definite meas- ure for damages which are essentially indefinite." § 409. The act of the State of New York, of December 13, 1847, providing for compensation for wrongful act, neglect, or default, limits the damages to be recovered to a just and fair compensation with re- spect to the pecuniary injury resulting to the wife and next of kin of the deceased ; if there is no wife and next of kin of the deceased^ there can be no such pecuniary damages to be recovered as the act con- templates.'^ §410. In Massachusetts the statute is as follows: " If the life of any person, being a passenger, is lost Jay reason of the negligence or carelessness of the pro- prietor or proprietors of any railroad, steamboat, stage- coach, or of common carriers of passengers, or by the unfitness or gross negligence or carelessness of their servants or agents in this commonwealth, such pro- prietor or proprietors, and common carriers, shall be liable to a fine not exceeding five thousand dollars, nor less than five hundred dollars, to be recovered by indictment, to the use of the executor or adminis- trator of the deceased person, for the benefit of his widow and heirs ; one moiety thereof to go to the widow, and the other to the children of the deceased ; but if there shall be no children, the whole to the widow, and, if no widow, to heirs according to the ' Laws of 1847, p. 575. CHAP. VIII.] TRAVEL UPON RAILROADS. 521 law regulating the distribution of intestate personal estate among heirs." Of this statute it has been ob- served, that it is confined to the death of passengers carried by certain enumerated modes of conveyance. A limited penalty is imposed as a punishment of care- lessness in common carriers. And as this penalty is to be recovered by indictment, it is doubtless to be greater or smaller within the prescribed maximum and minimum, according to the degree of blame which attaches to defendants, and not according to the loss sustained by the widow and heirs of the deceased. The penalty, when thus recovered, is conferred on the widow and heirs, not as damages for their loss, but as a gratuity from the State.^ In New Hamp- shire, it has been held, that an indictment to recover the fine imposed by a statute, almost identical with the Massachusetts statute, where the life of a person was lost by carelessness on a railroad, must be against the corporation, and not against the individual stock- holders, and must show that there is a surviving rela- tive of the deceased entitled to the fine.^ § 411. Injuries to Property on the Line of the Road. The use of fire to generate the motive-power of railroad cars being an authorized use of that ele- ment, any injury which results from its careful em- ployment, unless by statute otherwise provided, is damnum absque injuria, and does not afford ground ' Per Metcalf, J., in Carey and Wife v. Berkshire Railroad Co. and Skinner v. Housatonic Railroad Co. 1 Cush. 475. '^ The State v. Gilmore, 4 Fost. 461 ; and see Kearney v. The Boston and Worcester Railroad Corp. 9 Cush. 108. For an application of the rule in case of mutual negligence to actions of this description, see ante, § 393 ; for an application of the rule of Priestley v. Fowler, see Sherman V. The Rochester and Syracuse Railroad Co. 16 Barb. 574. 522 LAW OF HIGHWAYS, [CHAP. VIII. for an action. This results from the principle, al- ready discussed, that no person is answerable in damages for the exercise of a lawful authority, unless such damages are the consequence of malice, unskil- fulness, or negligence.^ The authority to use a steam- engine for the purpose of propelling cars upon a railroad, it has been said, is an authority to emit sparks therefrom; and, if the approved means which science and skill have invented are applied to pre-v vent sparks from causing injuries, the proprietors of the road are free from responsibility.^ Their right to use fire in this way is as unquestionable as the right of a blacksmith to use it in his business, or the right of any individual to use it in his own house for do- mestic purposes ; and the liability for damages result- ing therefrom is the same in the one case as in the other. The exercise of reasonable or ordinary care and diligence is all that is required; and, if that requirement be not fulfilled, the proprietors of the road are responsible for the consequences. The question of liability, therefore, is a question of fact, to be determined by the jury, by the application of this test to the circumstances of each particular case.^ What is reasonable care must depend, in a ' Ante, Chap. V. ' Rood V. New York and Erie Railroad Co. 18 Barb. 80 ; Moshier The Santa Claus, 1 Blatch. 370. ' The Ebenezer, 2 W. Kob. 206. » The Itinerant, 2 W. Kob. 236. 559 LAW OF HIGHWAYS. [CHAP. VIH. er such speed was proper or not, avail herself of the plea of inevitable accident, imless she had taken every possible precaution against collision.-^ A neg- lect, at any time, of due means to check a vessel entering a river or harbor, where there are others lying at anchor, or the omission, on the part of a steamer, to slacken her speed in ascending a narrow channel, thronged with river craft, is such a fault as will create a case of responsibility for the damages which ensue.^ § 441. Where a steamboat is navigating the wa- ters of a river or harbor, with another vessel in tow, and a collision ensues between the tow and a third vessel, the question may arise, whether the steam- boat or the tow is responsible for the damages. In all cases where the tug is under the direction and control of the master and hands on board of the tow, there is no difficulty in assigning to the latter a re- sponsibility for all the damage that may happen through the fault of either vessel. The converse of the proposition will hold equally good, where the tow is under the exclusive direction and control of the tug. But where there is a divided command and direction in the navigation of the vessels, there must necessarily be, in some measure, a divided re- sponsibility assigned to each. What that measure shall be, is a question of some difficulty.^ In the case of The Express,* a steamboat was towing a ca- ' The Europa, 2 Eng. Law & Eq. 557 ; and see The "Virgil, 2 W. Eob. 201 ; The Rose, lb. 1 ; The Perth, 3 Hagg. 414 ; The Iron Duke, 9 Jur- ist, 476. ^ The Neptune, 1 Dod. 467; Newton v. Stebbins, 10 How. 586. = Per Nelson, J., in The Express, 1 Blatch. 365. ♦ lb. CHAP. VIII.] TRAVEL UPON NAVIGABLE RIVERS. 551 nal boat in New York Bay, the latter being attached to the former by a hawser from her stern. The ves- sels were respectively under the direction and con- trol of their own masters and crews. The captain of the tug was warned, before he lashed the canal boat astern, that she steered badly, and ought to be taken alongside. The canal-boat took a sheer, and came into collision with, and damaged a third vessel, which was lying at anchor in the bay. It was held, that, after the captain of the tug had been warned that the tow steered badly, and requested for that reason to take her alongside, it was his duty in going around among the vessels lying at anchor in the bay, to have kept the strictest watch over the tow, and to have seized the first moment of appar- ent danger, for the purpose of arresting the sheer, and preventing the collision ; and that, not having been in the exercise of this degree of care, he was responsible for the damages, and this, although the master of the tow may likewise have been in fault, and, therefore, properly responsible for the colHsion.^ § 442. In Sprowl v. Hemmingway,^ a brig, which was towed at the stern of a steamboat, employed in the business of towing vessels in- the River Mississip- pi, below New Orleans, was through the negligence of the master and crew of the steamboat, over whom those in the charge of the brig had no control, brought into collision with a schooner lying at anchor. It was held, that the owner of the brig was not responsible for the damage sustained by the > And see Reeves v. The Ship Constitution, Gilpin, 579 ; The Carolus, 2 Curtis, 69. ' Sprowl V. Hemmingway, 14 Pick. 1. 552 LAW OF HIGHWAYS. [CHAP. VHI. schooner. In this case, the decision turned upon the question, whether the master and crew of the towing steamboat did not stand in such relation to the defendant, as would render him liable for their acts, as being his servants, or in respect of their being engaged in his business or employment. And the Court said, per Shaw, C. J. : " Tried by either of these principles, we think that the defendant is not responsible for damages, attributable to the careless- ness or want of skill of the master and crew of the towing vessel. They were not the servants of the defendant ; were not appointed by him ; did not re- ceive their wages or salaries from him ; the defend- ant had no power to remove them ; had no power to order or control them in their movements ; had no contract with them, but only through them, with the owners of the steamboat, for a participation in the power derived from the public use and employ- ment of that vessel by her owners. After making such contract, it was perfectly in the power of the owners of the steamboat to appoint another master, pilot, and crew, and the defendant would have had no cause of complaint." § 443. The owners of a ship are not relieved from responsibility in a case of collision, from the circum- stance of having a pilot on board, who is appointed by public authority, if the pilot was received on board not under the compulsion of any statute.^ But where a pilot has been received in obedience to a statutory injunction, enforced by a penalty, the ' The Carolus, 2 Curtis, 69 ; Yates v. Brown, 8 Pick. 23 ; Snell v. Eioh. 1 Johns. 305 ; Burry v. Donaldson, 4 Dallas, 206 ; The Neptune, 1 Dod. 467. CHAP. VIII.] TRAVEL UPON NAVIGABLE RIVERS 553 owners are not to be liable for the misconduct or mismanagement of the pilot.^ "If the master can- not navigate without a pilot, except under a penalty, is he not, under the compulsion of law, to take a pilot ? And, if so, is it just that he should be an- swerable for the misconduct of a person, whose ap- pointment the provisions of the law have taken out of his hands, placing the ship in the hands and un- der the conduct of the pilot ? The consequence is, that there is no privity between them." ^ Even in the tribunals of another country, the rights of par- ties are to be determined by the law of the port where the collision occurs ; and if such collision re- sults from the mismanagement of pilots, compulso- rily received, the owners of the vessel will not be responsible.^ § 444. Where a pilot has been compulsorily re- ceived on board a vessel, all the responsibility at- taches to him under all the circumstances, while within his pilot grounds ; and it is no part of the duty of the master to interfere with the manage- ment, except in the extreme case of the utter inca- pacity of the pilot, and for the preservation of life and the property under his care.* If, however, there ' Smith V. Condry, 1 How. 28; The Maria, 1 Rob. 95 ; The Protector, lb. 45 ; The Diana, lb. 131 ; The Agricola, 2 lb. 10 ; The Creole, Legal Intelligencer of May 7, 1852 ; The Christiana, 2 Hagg. 183. ' Carruthers v. Sydebotham, 4 M. & S. 77. But see Attorney-General V. Case, 3 Price, 302. « Smith V. Condry, 1 How. 28. ' The Loohlibo, 1 Eng. Law & Eq. 651 ; and see Cook v. Parhan, 24 Ala. 21. Under the statute of California, the master of the vessel or the harbor magter has the responsibility of taking a position or berth for the vessel, and the owner is not exempt from liability for injuries com- mitted by taking an improper berth, although it was selected by the pilot in charge. Griswold v. Sharpe, 2 Cal, 1 7. 554 LAW OF HIGHWAYS, [CHAP. VIII. is an interference on the part of the master and his crew, and the collision occurs by reason thereof, or partly by reason thereof, the owners will be respon- sible for the damages, provided the master or his crew were at fault. And an interference, as distin- guished from a suggestion, is the doing that which the pilot alone ought to have done. It has, there- fore, been held, that a hail from any of the crew on the lookout to alter the helm, if such advice be adopted by the pilot as a proper measure in his own judgment, will exonerate the owners ; otherwise, if the advice be adopted by the pilot, unthinkingly, and on the mere report of the lookout.^ So, if the collision results partly from the defect of the vessel or its anchor, the owner will be responsible.^ § 445. It is a general principle of maritime law, that a vessel under sail must avoid one at anchor, provided the anchorage be properly taken up. But if the place of anchorage be an improper place, the owners of the vessel which is injured must abide the consequences of a collision, unless other circum- stances alter the equity of the case. An anchorage in the channel or thoroughfare of a river is an im- proper place, and can only be justified by absolute necessity. Where a steamer, by user, has acquired the right to pass upon a particular passage-way to a wharf, it is for the jury to decide whether other navigators, under the circumstances, are bound to know that there is such a passage-way, and where it ' lb. ; and see Snell v. Rich, 1 Johns. 304 ; The Montreal, 24 Eng. Law & Eq. 580 ; The Diana, 1 W. Rob. 131. ^ The Massachusetts, 1 W. Rob. 371 ; The Creole, Legal Intelligencer of May 7, 1852. CHAP. VIII.] TRAVEL UPON NAVWABLE EIVEES. 555- is. The fact, however, that a vessel is anchored in an improper place, does not excuse other vessels from the observance of ordinary care and skill, and if, through want of such care and skill, a collision occurs, the colliding vessel will be responsible for the damages.'' An anchored vessel is also bound to be securely anchored. A commander of a ship was condemned in Admiralty, in a cause of damage, the collision having been occasioned by his anchoring too near the damaged vessel, and with only one an- chor, when, in consequence of the weather being squally and tempestuous, she should have been an- chored with more than one.^ The owners of a ves- sel, disabled by the negligence of its crew, are answerable for damage done by its accidentally drift- ing against another vessel.^ § 446. Where a collision takes place between two vessels at sea, which is the result of inevitable acci- dent, without the negligence or fault of either party, each vessel must bear its own loss.* In answer to the question, " What is inevitable accident ? " Dr. Lushington uses the following language : " Inevita- ble accident, in the absolute and strict sense of the term, very seldom takes place. 'Inevitable' must be considered as a relative term, and must be con- strued not absolutely, but reasonably, with regard to the circumstances of each particular case. In the ' Strout V. Foster, 1 How. 89 ; Knowlton v. Sanford, 32 Me. 148 ; Steamboat United States v. The Mayor, 5 Misso. 230. ' The Massachusetts, 1 W. Kob. 71 ; The Volcano, 2 lb. 337;^ Vantine V. The Lake, 2 Wallace, Jr. 52. ' Secombe v. Wood, 2 M. & Kob. 290. * Steinback v. Eae, 14 How. 532 ; The Woodrop Sims, 2 Dod. 83 ; Broadw.ell u. Swigert, 7 B. Mon. 39 ; 3 Kent's Com. 231. 556 ' LAW OF HIGHWAYS. [CHAP. VIII. strict sense of the term, there are very few cases of coUision that can be said to be inevitable ; for it is almost always possible, the bare possibility consid- ered, to avoid such an occurrence. But the import of the words 'inevitable accident,' in my view, is this, — where a man is pursuing his lawful avocation in a lawful manner, and something occurs which no ordinary skill or caution could prevfent, and, as the consequence of that occurrence, an accident takes place." ^ § 447. Where a collision occurs between two ves- sels from the negligence or fault of both parties, neither party can, at common law, recover for dam- ages sustained.^ The principle is applicable to collis- ions between ships at sea, to the same extent, and under the same qualifications, as to collisions be- tween carriages upon the common highway.® In Admiralty, in cases of collision where the fault is mutual, the damages are equally divided between the colliding vessels.* The rule applies, however, only where they are both in fault, at the time, and in the acts, which produced the injuries.^ And, it has • Tlie Europa, 2 Eng. Law & Eq. 557 ; Union, &c. Bailroad Co. v. New York, &c. Railroad Co. 24 How. 307. " Kent V. Elstob, 3 East, 18 ; Vauderplank v. Miller, 1 Mood. & Malk. 21 ; Lock V. Seward, 4 C. & Payne, 106 ; Vennall v. Gardner, 1 Crompt. & Mees. 21 ; Simpson v. Hand, 6 Whart. 311 ; Barnes !>. Cole, 21 Wend. 188; Halderman v. Beckwith, 4 McLean, 286 ; Barrett v. Williamson, lb. 589 ; S. C. 18 How. 101 ; The Brig Verruna v. Clark, 1 Texas, 30 ; Kelly V. Cunningham, 1 Cal. 365. ' Ante, § 345 et seq. * The Woodrop Sims, 2 Dod. 85 ; Hay v. Le Neve, 1 Bell's Com. 679- 582; 2 Shaw's Scotch Appeal Cases; Jacobson's Sea Laws, 328 ; Ward V. Chamberlain, 5 Am. Law Reg. 330 ; The Scioto, Davies, 359. As to such cases between steamers and sailing-v^psels, a7ile, § 431 ; Ward v. M. Dousman, 6 McLean, 231. ' Ralston v. The State Rights, 1 Crabbe, 22. CHAP. VIII.] TRAVEL UPON NAVIGABLE RIVERS. ' 557. been said, that the rule is subject to modification, where the faults are egregiously unequal; "for a slight fault on one side would not justify a destruc- tive retaliation on the other, even at the same time." ^ Whether this be so or not, where both ves- sels are to blame, a Court of Admiralty will order the vessel most to blame to pay all the costs. That was the decree in the case of Rogers v. Brig Eival. " Upon the facts of this case," said Sprague, J., " and the answers of the experts, it appears that both ves- sels were to blame. In such case, it is the settled doctrine of the Admiralty, that the whole damage should be equally divided between the two vessels. I think the Rival was most in fault, and that. she ought, therefore, to bear all the costs.^ § 448. When collision occurs, the suffering ship should receive from the other colliding vessel every assistance in its power to render. It is held to be a suspicious circumstance, when effort has not been made to help the damaged vessel ; and the owners of the Celt, though not otherwise in fault, were con- demned in all costs and expenses of the suit, because the master made no attempt to save the ship run down.* § 449. Causes of collision are communis juris. Hence a Court of Admiralty has jurisdiction to en- tertain a suit between two foreign vessels, where the collision occurred within the territorial waters of the sovereign under whose commission it sits. In the case of the Johann Friederich, a protest against the ' lb. ' Kogers v. Brig Kival, 9 Law Kep. 28. ' The Celt, 3 Hagg. 321. 558 ' LAW OF HIGHWAYS. [CHAP. VIII. jurisdiction of the Court, on the ground, that both the vessels vrere the property of foreign owners, and that the collision occurred whilst they were in the prosecution of their respective voyages on the high seas, was overruled, it appearing that the place of collision was on the English coast, within the juris- diction of the Court of Admiralty, — causes of col- lision being communis juris} In these causes of collision between foreign vessels, the judgment of \he forum rei sitce, where the proceeding is in rem, is of universal obligation, and absolutely conclusive.^ The same principle applies in such cases equally to movable property as to immovable. Immobilia ejus jurisdictionis esse reputantur, ubi sita sunt. What- ever the Court having jurisdiction of the subject- matter determines, will be held valid in every coun- try where, the same question comes directly or in- directly in judgment before any foreign tribunal.^ ' The Johann Friederich, 1 W. Kob. 35 ; Abbott on Shipping (5th Am. ed.), 314. ^ Story's Conflict of Laws, p. 495. ' Flanders on Maritime Law, § 385; Angell on Carriers, § 610. The author takes this occasion to acknowledge his indebtedness to the books above cited, in the entire preparation of the preceding sections, and to refer the reader to them for a more extended examination of this subject than a work on the Law of Highways seemed to call for. The foUowino- explanation of sea-phrases used in the preceding sections is taken from " The Seaman's Manual," by Davis, as quoted in 42 West. Rev. 69 : Bear-up or hear-amay — To put the helm up (or to the windward or weather side), and keep a vessel away to leeward. Close-Muled — On a how line — On a wind — Applied to a vessel which is sailing with her yards braced up, so as to get as much as possible to the windward. Free — Large — Applied to a vessel sailing with a fair wind. Larboard — The left side of a vessel, looking forward. Lee — The side opposite to that from which the wind blows. A-lee The situation of the helm when the tiller is put to the lee side. CHAP. VIII.] TRAVEL UPON NAVIGABLE RIVERS. ■ 559 Leeway — What a vessel loses by drifting to leeward. Luff — To put the helm down (or to the lee side), so as to bring the ship nearer to the wind. Port — Used instead of larboard. To port the helm is to put the tiller to the larboard side. Starboard — The right side of a vessel, looking forward. To star- board the helm is to put the tiller to the starboard side. Slays — In stays — The situation of a vessel when she is staying, or going from one tack to the other. Tack — To put a ship about, so that, from having the wind on one side, you bring it round on the other by the way of her head ; the opposite of wearing. A vessel is on the starboard tack when she has the wind on her starboard side ; and on the larboard tack when she has the wind on her larboard side. Wear — To turn a vessel round, so that, from having the wind on one side you bring it upon the other, carrying her stern round by the wind. In tacking, the same result is produced by carrying a vessel's head round by the wind. INDEX [References are to the Sections.] A. ABATEMENT, as a remedy for nuisances in highways, 274. of nuisance which has become subject of judicial investigation, 274. not to be abated with total disregard to the rights of others, 274 n. ABANDONMENT, of highways, 321 -325. whether it may be presumed from non-user, 321 - 324. by writ of ad quod damnum, 325. ACTIONS, by the owner of the fee in highways, 319, 320. of assumpsit for the non-payment of tolls, 363. on the case for special injuries from nuisances, see Case. ASSESSMENT, of estates benefited by the opening, widening, or improving streets, 169-201. how distinguished from taxation, 169, 170. the constitutionality of, sustained in New York, 171-180. in Pennsylvania, 181. in Connecticut and Maryland, 182. in Ohio, 183. in New Jersey, 184. in Tennessee, 185. in Mississippi, 186. in Kentucky, 187. in what other States, 187 n. 36 562 INDEX. ASSESSMENT, Continued. propriety of levying local tax referred to the people who are to be d,ffected by it, 187 n. statutes authorizing, must be strictly complied with, 188, 191. as to notice of, to owners of land assessed, 189, 190. meaning of the word jury, in the constitution of New York, in reference to, 192. appointment of commissioners to make, does not operate like a notice of lis pendens, 193. commissioners to make, not to pass on conflicting claims of title, 194. how to be 'levied upon different interests and different kinds of property, 194. purchase of a, lot between assessment and reassessment leaves the purchaser liable, 194 n. assessment by the front foot sustained, 194 n. adjoining owners assessed for cost of grading, &c. upon a turn- pike road within the city limits, 184 n. may be made after the improvement has been completed, 197. from what sources commissioners may obtain information to determine the amount of, 200. proceedings upon the coming in of the reports of commission- ers of, 200, 201. B. BOUNDAEIES, presumptions from adjacent ownership, 313. right of adjacency, 91. soil of highway if it passes at all passes as a parcel, not as appurtenant, 314, 315. , rule of construction, 315, 317. by highways, the effect of, in deeds of conveyance, 314-317. by fresh-water rivers, the effect of, in deeds of conveyance, 318. BRIDGES, defined, 35 - 37, and notes. a footway essential to constitute the structure a bridge, 35. not necessary that should be over a stream, 36. a bridge from highway over track a part of the railroad struc- ture, 37. INDEX. 563 BRIDGES, Continued. abutments included in the terms, 40 n., 270 n. cases where authority of legislature is necessary to erect, 46. an exclusive right to toll-bridge not infringed by a grant for a railroad bridge, 95 n. different kinds of, 38, 39, are highways, 40. right of State to erect, 41, 248-251. right to erect by legislative grant, 41 n., 45. when to be considered as nuisances over navigable rivers, 249-251. right of the State to grant tolls for the passage of, 42. exemptions from toll in passing, 45. are real estate, when, 43. in England generally to be repaired by the county, 257. what are deemed public, ih. confined to those made over water in a channel between banks, ih. by usage and custom, other parties besides county may be lia- ble to repair, ih. repair of, where widened, ih. three hundred feet of road at the end of bridges to be repaired by the county, ih. repair of, in the United States, 270. when private individuals or corporation are liable to repair, 257, 271. extent of liability to repair, 257, 272. dedication of, 164-166. See Dedication. C. CANALS, are one species of highways, 49. general principles concerning the construction and use of, 50-52. of the right to construct, building over, 91. liability to keep in repair, 273. rules regulating the navigation of, 368-367. the right to demand toll for the use of, 368, 369. 564 INDEX. CASE, actions on the, for special injuries resulting from nuisances in highways, 285 - 300. what are deemed to be special injuries, 285. at common law maintainable only against individuals, 286. statutes authorizing the maintenance of, against towns, 286, 287. liability of towns cannot be extended beyond the measure of the statute, 286. does not embrace damage from being unable to use highway, 287. does not extend to expenses incurred, 287. action maintainable only by parties using the highway for legitimate purposes of travel, 287 a. not by parties unlawfully travelling, 287 a, n. statutes authorizing, strictly construed, 287, 288. against towns, what sufficient notice of defects in highways, 289. cannot be maintained by one whose negligence has contributed to the injury, 290. by parties deviating from the travelled path, 291. for injuries sustained in crossing a stream, the bridge over which was carried away, 292. or for an unlawful purpose, ib., 290 n. may be by party having special property in estate injured, 288. negligence and due care is for the jury, 290 - 294. when for the court, 290 n. for injuries sustained by parties having notice of the defects, 293. for injuries sustained in travelling extra viam, 293 a. by a surveyor on a road which it was his duty to repair, 294. against towns for injuries primarily imputable to accident, 295, 296. decisions conflicting, 295. rule in Vermont, 295. in New Hampshire, ih. in Maine and Massachusetts, 296. remote and proximate cause, ih., and note, limited to injuries from such defects as are indictable, 297. only liable for material defects, 297. INDEX. 565 CASE, Continued. and obstructions affecting the condition of the road- way, 297. liability extends only to direct and immediate consequences, 297 a. towns, against which judgments have been recovered, have an action over against the authors of obstructions, 298. against individuals and corporations charged with the repair of highways, 299. who are liable to be proceeded against by, 300. And see Law of the Road. Rules op the Sea. CATTLE, right to pasture upon highways, 303. right of towns to pass ordinances under statutes authorizing the depasturing of highways by, 306-309. injured while straying upon highways, 345. upon railroads, 398. COLLISION, between travellers upon highways, 345. when resulting from mutual negligence, 345 - 352. And see Lavt op the Road. Rules op the Sea. COMPENSATION for land taken for a highway, See Eminent Domain. CUL-DE-SAC, what it is, 27. whether it can be a highway, 28-31, 136 - 138. may be dedicated as highway, 31 n. D. DAMNUM ABSQUE INJURIA, general principles, 202-206. alterations lawfully made give no claim for damages, 207, 208. statute does not protect officer from liability for his own negli- gence or unskilfulness, 207. in case of alterations in highways at common law, 207-210. in the United States, 211 - 214. instances and cases of, 211 - 217. 566 INDEX. DAMNUM ABSQUE INJURIA, Oontinued. alteration must amount to an entire conversion of existing highway, 211 n. conversion of highway into railway not protected, and not to be done without compensation, 211 n. highway may be taken for a plank road without compensation, 213. alterations in navigable rivers, 215. to promote the public health and conven- ience, 216. which result in changes outside the limits of highways, 217. the rule not recognized in Connecticut and Ohio, 218. does not apply to cases of negligence and wanton injury, 219. to deviations from authority given by statute, 220. municipal corporations liable for the acts of their agents in cases of negligence, or wanton injury, 221. who are agents for the purpose, 221 n. DEATH, damages for injuries resulting in, 407-410. DEDICATION, of highways, 132-168. definition of, 132. origin and history of, 133. who may make, 134. to whom must be made, 135. may be of a way not a thoroughfare, 31 n., 136 - 138 n. cannot be subject to power of resumption, 139. may be limited in point of time, 139. as to the mode of enjoyment, 140. not to a portion of the public, 141. what constitutes on the part of the donor, 142. lapse of time not essential to the proof of, 142. clear interest to dedicate must appear, 142. it is a conclusion of fact to be drawn from the circumstances of each particular case, 142. what is sufficient evidence to prove, 143-151. INDEX. 567 DEDICATION, Continued. circumstances which clearly prove, 143. proof of, by user for twenty years, 143. proof of, by user, for less than twenty years, coupled with circumstances indicative of an in- tent to dedicate, 144. proof of intent to dedicate necessary to authorize the presumption of the fact of, 145 - 147. open enjoyment and user by ■pwhlic prima facie evi- dence of assent of owner, 143, 147. may be presumed where the way is in an unfin- ished condition, 148. proof of, by sales of lands bounding on lands desig- nated as roads or streets in the deed of convey- ance, or upon plats and surveys referred .to in such deed, 149. of the Crown lands of England, 1 50. of the government lands of the United States, 150. of wild and uncultivated lands, 151. mere user not sufficient, 151. not to be presumed so readily of agricultural as of urban property. what sufficient evidence to rebut the presumption of, 152 - 154. owner of the soil having made dedication by his acts or omissions, cannot afterwards by any acts make evidence to rebut it, 154. what will be presumed to be the limits of, 155 and note. is not dependent upon an estoppel, 156. acceptance of in England may be presumed from the public use alone, 157, 158. in the United States, how made, 159-162. when may be made, 163. cannot be revoked after acceptance, 167. how may be lost by the public, 167, 168. cannot be revoked, 167. of bridges, 164- 166. 568 INDEX. E. EMINENT DOMAIN, the right of, definition of, 76-78. how distinguished from taxation, 77. how apphed to the appropriation of land for highways in Eng- land, 79, 80. in the United States, 81-83. foreign corporation may be authorized to take lands under, 82 n. the exercise of, a purely discretionary legislative right, 84. legislative power under may be delegated, 85. should not be solely for ornamental purposes, 85. will be exercised when, 85, 86. for what purposes taken for highway, 85. cannot be exercised to transfer the property of one citizen to another for private purposes, 87. cannot be exercised without provision for compensatign, 87. cannot be exercised for the mere purpose of raising a rev- enue, 88. to take more property than is necessary for the public use, 89 - 91. property taken under, cannot be appropriated to a new use, 88, 91. authorizes the taking of a corporate franchise for public use, 92. a portion or the whole may be taken, 92. a corporate franchise may be said to be taken by virtue of, when, 93. what is infringement of exclusive franchise, 93 - 96. exclusive franchise taken when the owner is deprived of the power of using, 93. distinction between the taking of a corporate franchise by virtue of, and the creation of a rival franchise, 94- 96. damages resulting from the exercise of, where a turnpike road is crossed by a highway, 97. distinction between compensation for the exercise of, and consequential damages, 99, 100. compensation for the exercise of, how to be ascertained, 101, 102. INDEX. 569 EMINENT DOMAIN, Continued. a statute authorizing the exercise of, void, if it contains no provision for compensation, 103. commissioners to estimate the damages consequent upon the exercise of, upon what principle selected, 104. the location of roads with reference to the exercise of, 105. the measure of damages for land taken by virtue of, 100 and notes, 106. the estimate of damages for land taken by virtue of, how formed, 107. the rule as to future and contingent damages resulting from the exercise of, 109. consequential damages, 99, 117 n. to parties whose land is not taken, 109. compensation for the exercise of, means what, 110. as to property of the State, 111. may be made after appropri- ation, 112. must be in reasonable time, 112. whether it must be in money, 113-115. benefits taken into account in reduction of, 116-118. in regard to lands taken from Indians, 121. the requisites of statutes authorizing the exercise of, must be strictly followed, 122, 123. to whom and in what proportions damages for the exercise of, are to be awarded, 124-130. landlord and tenant, 124. vendor and vendee, 124. mortgagors and mortgagees, 124. change of ownership pending settlement, 125. whether to heir or administrator, 127. whether owner of easement entitled, 129. to alien resident, 130. 570 INDEX. F. FEE IN HIGHWAYS, The, vests in whom, 301. entitled to all the remedies for the freehold, subject only to the easement, 302. the rights of the owner of, 302 - 311. as to drains and watercourses, 303. as regards pasturage, 303. the right to maintain trespass, eject- ment, or waste, 304, 319, 320. as regards the power of towns to regu- late the pasturage of highways by by-laws passed in pursuance of stat- ules, 306-309. the right of the owner of, to maintain trespass against a person stopping by the wayside, and using abusive language, 305. in turnpike roads, railroads, and canals, 310. the right of the public to appropriate, 311. whether a fee absolute, 311. right must be coextensive with the necessity, 31 1. the extent of the rights resulting from the ownership of, 312. enlarged in modern decisions, 312. as to sewers, drains, &c. 312. right of municipal corporation over turnpike road within its corporate limits, 312 n. presumed to be in the owner of lands adjacent, 313. right of the owner of lands adjacent to light and air, 91. reversion of fee after abandonment, 326. FEEEIES, general principles concerning, 46 - 48. travel upon, 416-424. obstruction of, indictable, 416. ferrymen are common carriers, 417. the duty of ferrymen to carry passengers after nightfall, 418. liability of ferrymen for horses and carriages received on their boats, 419, 420. when rented, the lessee is liable for loss, 421, 422. INDEX. 571 FERRIES, Continued. a custom may be maintained by the inhabitants of a vill to pass toll free, 423. the nature of the franchise, 424. FIRES, occasioned by sparks from locomotive engines, 411. H. HIGHWAYS, the definition of, 2. the different kinds and denominations of, 3, 4. no right over private property, at common law, for sea-bath- ing, 3. term, to all public ways, 4. respective rights of public and owner of fee, 5. way by inclosure, 5, 254. no right in owner of private way to pass over adjoining lands, 6. different kinds of highways, 7. construction of word " footway," 7. abandonment, 321. whether can be presumed from non-user, 321-324. by grant of ad quod damnum, reversion after abandonment, 326. when founderous or impassable, travellers may go on lands adjoining, 5-7, 254. obstruction of, by railroad crossings, 23. presumptions from adjacent ownership, 313. right of adjoining owner to light and aid, 91. I. INDICTMENT, as a remedy for nuisances in highways, 275 - 279. for obstructing passage of street-railway car, 340 n. INJUNCTION, as a remedy for nuisances in highways, 280 - 284. in favor of the public, 280 - 282. in favor of private individuals for special damages resulting from public nuisances, 283, 284. 672 INDEX. LAW OF THE EOAD, the necessity of such a law, 327. in England and the United States, 328. is not inflexible, 329. when a deviation from, is called for, 330. in the United States, does not apply to equestrians, 331. when the road is unoccupied by carriages, 332, 833. the non-observance of, does not exempt other travellers from the exercise of proper care and diligence, 333, 334, 335. non-observance of, excuses others from liability except for wanton and gross negligence, 349. the application of, to carriages crossing highways, 336. to parties meeting on the sudden, 337. the construction of statutes establishing, 338, 339. in the case of carriages proceeding in the same direction, 340. rule as to street railways, 340 n. as applied to foot-passengers, 341. to rate of speed, 342. to stopping by the wayside, 843. to the road-worthiness of carriages and harnesses, 344. degree of case required of plaintiff, 844. And see Collision. N. NAVIGABLE RIVERS, are public highways, 53-56. what are streams subject to public use, 56. ebb and flow of tide not the test, 56. need not be navigable in ordinary sense, 56. sufficient if capable of beneficent use for transportation, 56. public easement in includes right to use banks, 56 n. right of the public to traverse upon the ice, 57. rights of riparian proprietors in, 54, 58-60. legislature cannot change character of stream by declaring that navigable which was not so, 60. provision in the ordinance of 1787 in relation to, 61. INDEX. 573 NAVIGABLE RIVEES, Continued. right of ownership in bed of stream, 62. meaning of, in courts of admiralty, 62-71. what rivers are not highways, 72. towing on the banks of, 73, 75. And see Rules of the Sea. NEGLIGENCE. party in fault liable, 345. unless injured party contributed to injury, 290, 345. negligence and care at railroad crossings, 345. plaintiff, though careless, may recover, if with ordinary care he could not have avoided injury, 345. so where there is an intentional wrong on part of defendant, 345. allowing young children in the street, 346-351. animals straying in highway, 346. NUISANCES, in highways, definition and kinds of, 222. by positive obstructions placed in highways, 223. by destroying, stopping up, or diverting highways, 224. by dangerous erections by the side of highways, 225. occupant liable for, 225. furious driving through streets, 225. noisy assemblages near the highway, 225. constable's sale, 225 n. by partial obstructions, 226. by lading and unlading carriages in streets, 227, 228. by keeping coaches at a stand in the street, 228. such occupation must be reasonable, 228. by obstructions in navigable rivers, 229. temporary use of rivers for booming logs permitted, 229 n. by collecting a crowd in a street, 230. must be intentional, 230. by collecting a throng of carts in a street in the course of trade, 231. by obstructions outside the travelled path, 232. are indictable, when unauthorized, though a public benefit, 233-235. statutory nuisances, 236. when legalized, lose their character as nuisances, 237. 574 INDEX. NUISANCES, Continued. construction of statutes, 238. railroads authorized to be laid across or parallel to highways, 238, 239; statutes authorizing, must be strictly complied with, 240. power to authorize may be delegated to municipal corporations, 241. railroads in streets, whether they are nuisances, per se, unless authorized by statute, 211 n., 242 - 247. bridges over navigable rivers authorized by statute, when nui- sances, and when not, 248- 251. by want of reparation, see Repair of Highways. remedies for, see Abatement, Indictment, Injunction, Case. Obsteuotions, see Nuisances, Case, Indictment. P. PLANK ROADS, the legal characteristics of, 14-16. PRESCRIPTION, highways by, 131. PUBLIC USE, see Eminent Domain. E. RAILROADS, the distinction between the different kinds of, 17. are highways, 18, 370. across common highways, 23. obstructions of, remediable by indictment and mandamus, 19. the right to lay a railroad in a road or street may be granted by implication, 20. not to be acquired without grant from legislature, 33. not bound to fence their road unless required by act, 21. provisions of railroad act of New York, 21. bound to make proper landing-places, &c. 21 n. when the use of the track may be granted to another com- pany, 22. INDEX. 575 EAILEOADS, Continued. the construction of statutes authorizing the laying of railroads across ordinary highways and turnpike roads, 23, 237 - 240. meaning of word "obstruction," 223. when, and under what restrictions, railroad companies are authorized to lay the track of their roads in the streets of cities, 32 - 34, 242 - 247. * the rule for the construction of the charters of railroad com- panies, 370. the power of companies to adopt rules and regulations, 371 - 377. rules for the government of depots and stations, 370. rules with reference to the reception and conduct of passen- gers, 373. rules with reference to the purchase and surrender of tickets, 374-376. penalties for the breach of the rules and regulations of rail- road companies, 377. the duty of railroad companies to receive persons as passen- gers, 378. the duty of railroad companies to furnish the accommodations advertised, 379. the liability of railroad companies for the baggage of passen- gers, 380. what articles are included under the denomination " baggage," 381. the right of passengers to testify to the value of their baggage, 383-385. the liability of railroad companies for the proper repair and equipment of their road, 386, 387. the liability of railroad companies for the acts of their servants or agents, -388 -390. the liability of railroad companies for injuries to passengers, 391. injuries to passengers partly caused by their own negligence, 392-395. the liability of railroad companies for injuries to persons not passengers, 396, 397. the liability of railroad companies for injuries to cattle oh the track, 398. 576 INDEX. RAILROADS, Continued. the liability of railroad companies for injuries to servants, by the negligence of fellow-servants, 399 - 402. the liability of railroad companies for injuries to servants, by the negligence of conductors and superintendents, 403. the liability of railroad companies for injuries to servants, by reason of negligence in the company in selecting their ser- vants, or in providing proper cars and engines, 405, 406. the liability of railroad companies for injuries resulting in death, 407. the rule of damages in case of death by railroad accident, 408-410. the liability of railroad companies for fires communicated by sparks from locomotive engines, 411. the liability of railroad companies for nuisance by letting off steam and ringing bells, 413. the power of municipal corporations to regulate the use of railroads in streets, 414. the power of railroad companies to mortgage or sell their roads, 415. REPAIR OF HIGHWAYS, at common law, parish generally liable, 252. at common law, parish cannot by agreement remove liability to, 252. at common law, parish must show what third party is liable to, ib. at common law, liability to, by enclosure, 254. by prescription, 255. ratione tenures, 256. in the United States, the liability created by statute, 258. measure of liability of towns, 259. in the United States, to what portions of highways the liability extends, 260, 261. in the United States, liability for a dangerous defect without the travelled path, 262. in the United States, liability for defects in sidewalks, 263. in the United States, liability for obstructions by falls and drifts of snow, 264-266. in the United States, liability of towns when third parties are also liable, 267. INDEX. 577 REPAIE OF HIGHWAYS, Continued. in the United States, as affected by non-acceptance or discon- tinuance, 268. in the United States, as affected by the entire destruction of the way, 269. in the United States, liability, when imposed on private indi- viduals or corporations, 271, 272. towns liable only for ordinary care, 268. not liable for obstructions while repairing, if proper barriers are placed, 268. must repair within reasonable time, 268, 270. convenience and safety the test, 259. different rule in country and city, 259. not liable if town has no power to remove, 262. liability for insufflcient railing to protect from dangerous places outside, 262. not for want of fence when there is no dangerous place ad- joining, 262 n. not liable on account of obstructions permanently located within limits by authority, 262 n. liability for projecting awnings if insufiBcient, 263. not for ice and snow overhanging, 263. not for merely slippery condition of sidewalk, if properly con- structed, &c. 266 n. towns not liable for want of repair of bridges over railways when the railroad company bound to keep in repair, 272 n. where proprietors agree with railroad company for new use o f liability for repairs, 272 n. private corporation liable for want of repair of way assumed by them, 273 n. See also Bridges and Canals. REVERSION, of the fee in highways after abandonment, 326. RULES OF THE SEA, the necessity of, to prevent the collision of ships, 425. the rules applicable to sailing-vessels when passing each other, 426, 427. under what circumstances the rules may be disregarded, 428, 429. the rules with regard to vessels being warped out of a harbor, 229, 430. 37 578 INDEX. EULES OF THE SEA, Continued. the rule applicable to steam-vessels when passing sailing ves- sels, 431, 432. the rule applicable to steam-vessels when passing each other, 433. the rule applicable to steam-vessels in regard to keeping a lookout, 434. the rule in regard to exhibiting signal-lights in the night-time, 435-439. the rule in regard to the rate of sailing, 440. liability for collision where a steam-vessel has another vessel in tow, 441, 442. liability for collision where the vessels are under the manage- ment of pilots, 443, 444. the rule in regard to anchorage, and collision with anchored vessels, 445. collision from inevitable accident, and what is inevitable acci- dent, 446. collision from mutual negligence, the rule of damages at com- mon law and in admiralty, 447. the duty of the colliding to the damaged vessel, 448. jurisdiction over causes of collision, 449. STREET RAILWAYS, right to construct and operate acquired only by grant from legislature, 33. law of the road, 340. indictment for obstructing car, 340. definition of franchise, 33. STREETS, are public highways, 24-26. may be used for what purposes other than as highways, 25, 241, 312. sidewalks are part of, and to be kept in repair, 263. SHIPS, COLLISION OF, See Rules op the Sea. INDEX. 579 T. TOWING, on the banks of navigable rivers, 56 n., 73 - 75. TOWNS, liability for defects in highway, See Repairs of Highways. TRAVEL UPON HIGHWAYS, See Law op the Road. TRAVEL EXTRA VIAM, the right of, when highways are founderous or impassable, 5-7,353-355. TURNPIKE ROADS. general characteristics of, 8. may be laid out as common highway, 8. bound to same diligence to insure safety as is required of towns, 8. toll-houses forfeited if turned to other uses, 8. are highways, 9. difference between and common highways, 9. travellers have same right to use on payment of toll as of common highways, 9. of avoiding toll, 10, 358. the right to exact toll for passing upon, 11 - 13, 356 - 358. exemptions from the payment of toll, 11, 359. power to commute or charge less than full toll, 13. what is compliance with statutes as regards toll-boards, 12. liability to keep in repair, 272. right to take tolls shown by prescription, 357. establishment of toll-gates, 360, 362. actions for the recovery of tolls, 363. penalties for evading the payment of tolls, 364. the power of turnpike companies to establish and change the location of toll-gates, 360, 861. the kind of gate which may be maintained, 362. W. WAYS, PRIVATE, defined and distinguished from highways, 1. right of way, 1. how it originates, 1. different kinds of, 1. appurtenant, extinguished by unity of possession, 1.