TREATISE ON THE LAW OF HIGHWAYS. CHAPTER I. MEANING OF HIGHWAYS. DIFFERENT KINDS OF, AND 1. WAY. 2. HIGHWAYS. 3. TURNPIKE ROADS. 4. PLANK ROADS. 5. RAILROADS. 6. STREET AND CUL-DE-SAC. 7. RAILWAYS IN STREETS. 8. Bridges. 9. FERRIES. 10. CANALS. 11. NAVIGABLE RIVERs. 12. Tow PATHS ON NAVIGABLE RIVERS. 1. Way. 1 § 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 between private and public ways clearly understood. By the term right of way," is generally meant a private way, which is an incorporeal hereditament of 66 1 Sax. waeg, weigh. Dut. vig. or wig, M. Goth. See Whart. Law Lex. tit. "Way." that class of easements,1 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 individual may claim a right of way by an express grant, or by long user, (prescription,) also by necessity, originating 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 prescriptive right of going over another individual'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 appurtenent.2 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 possession.3 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 right of way, 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 service 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. 2 See the authorities above referred to, and Pierce v. Selleck, 18 Conn. R. 39; McDonald v. Lindell, 3 Rawle, (Penn.) R. 492. 3 3 Kent, Comm. 420. 2. Highways. § 2. Highways are public roads, which every citizen has a right to use.1 One of the proper and important aims of civil policy has been the establishment of towns, marketplaces, and cities, and a connection with each other by thoroughfares, in order that a mutual intercourse may be promoted and kept up between them.2 In the statute law of the State of New York, the word "road" is used synonymously 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 common; the former belonging only to the particular parties by whom it has been acquired, while the latter is for the free use of every member of the community. 3 § 3. Highways are of various kinds, according to the state of civilization and wealth of the country through which they are constructed, and according to the nature and extent of the traffic to be carried on upon them-from the rude paths of the aboriginal people, carried in direct lines over the natural surface of the country, passable only by passengers or packhorses, to the comparatively perfect modern thoroughfare.* Lord Coke, adopting the Civil Law, states that there are three kinds of highways; 1, a footway, called iter; 2, a footway and horseway, called actus; 3, a cartway, called via.5 A 1 3 Kent, Comm. 32; Sutcliffe v. Greenwood, 8 Price, R. 535; Rex v. Camberworth, 3 B. & Adol. R. 108; and for other English authorities, see Shelford on Highways, and Woolrych on Ways; and see American authorities-Makepeace v. Worden, 1 N. Hamp. R. 10; Peck v. Smith, 1 Conn. R. 103; Robins v. Borman, 1 Pick. (Mass.) R. 122; Jackson v. Hathaway, 15 Johns. (N. Y.) R. 447; Stackpole v. Healy, 16 Mass. R. 33, and many cases therein cited; Cool v. Crommet, 1 Shep. (Me.) R. 250. 2 2 Domat, 280. 3 Fowler v. Lansing, 9 Johns. (N. Y.) R. 349; Griffin v. Martins, 7 Barb. (N. Y.) Co. R. 297. 4 Brande, Dict. of Science, Literature and Art, tit. "Roads." 5 Coke, Litt. 56 a; 1 Brown, Civil Law, 177. carriage-way will comprehend a horseway, and always includes a footway. A drift-way is a road over which cattle are driven; and Lord Mansfield has laid down, that "In general, a public highway is open to cattle, though it may be so unfrequented that no one has seen an instance of their going there; but the presumption would be for cattle, as well as carriages, otherwise cattle could not be driven from one part of the kingdom to another."2 The public have not, at common law, any right of passing over private property for sea-bathing.3 § 4. It is said by an English author, in treating of the qualities of a highway, that footway and bridle-way appear to be used almost in contradistinction; whereas, he adds, the latter term being of itself sufficient to comprehend all public ways whatsoever, ought to have been allowed its full legal force, instead of being used in the more confined and vulgar meaning of a turnpike, or great carriage road. He then shows, from authorities, that the term "highway" is applicable to all public ways for horse and foot passengers. § 5. Another point of law presents itself, which has regard to the respective rights and duties of the public and the owners of land adjacent to a highway. If a common highway is so 1 Per Heath, J., in Ballard v. Dyson, 1 Taunt. R. 285; and see Poole v. Hawkins, 11 M. & Welsb. R. 827. 2 Ballard v. Dyson, ub. sup. 3 Blundell v. Catterall, 5 B. & Ald. R. 268. See Benest v. Pipon, 1 Knapp, (Privy Council) R. p. 67. 4 Wellbeloved on Highways, 3, citing Regina v. Faintiff, 6 Mod. R. 255, and Madox's case, Cro. Eliz. 63; Rex v. Inhabitants of Limehouse, 2 Show. 455, pl. 412. From all the decisions, it may be pretty clearly deduced, that the term "highway," in England, extends to all public ways; and, for which, see Allen v. Ormond, 8 East, R. 4, and Logan v. Burton, 5 B. & Cress. R. 513; and see, also, 13 East, R. 95, in which Lord Ellenborough observes: "There is no doubt that a public footway or bridle-way is a highway; it is a highway for foot passengers, or for horse passengers; and the parish is bound to repair it, till they can throw the onus upon others. So all public bridges are primâ facie repairable by the inhabitants of the county, without distinction of foot, horse, or carriage bridges, unless they can show that others are bound to repair particular bridges.' |