Johnson v. Inhabitants of Whitefield

The opinion of the Court was drawn up by Shepley J. It is contended, that the owner of land adjoining a public highway may lawfully use that part of it, which is not prepared for the public travel. His ownership and right of use so far as may be consistent with the rights of the public need not be questioned. But it is a mistake to suppose the public rights of travel are restricted to the prepared and usually traveled path. While the town has done its duty, when it has prepared a pathway [288] of suitable width in such a manner, that it can be conveniently and safely traveled with teams and carriages as required by the statute ; the citizens are not thereby deprived of the right to travel over the whole width of the way as laid out. And they have the right to do so without being subjected to other or greater dangers, than may be presented by natural obstacles, or those occasioned by making and repairing the traveled path. In many parts of the highways these obstacles are small, and in others very great. To allow the sides of the prepared path to be incumbered by logs or other things unnecessarily placed there, would deprive the citizens of the use of the whole width of the way or subject them to unnecessary dangers not contemplated by the laws. It may become necessary to place obstructions upon the sides of it for the purpose of preparing or improving the traveled path by the removal of trees or stones and the like. Beyond this all such obstructions are nuisances, and as unlawfully there, as they would be in the traveled path. If the accident had,happened through the neglect or fault of the plaintiff, or by reason of any obstacle naturally existing or necessarily placed in the highway out of the traveled path, he could not have recovered ; but this is negatived by the finding of the jury. The driver may be subjected to injury with the most prudent management by a vicious or irritated horse, without any just ground, for complaint against the town; but in such cases he cannot justly be subjected to the increased danger occasioned by obstacles, which exist only through the illegal act of another person. Judgment on the verdict.