Burr v. Stevens

Wiswell, J. The parties are owners of adjoining lots of land, both upon the highway. For the purpose of passing between his lot and the highway, the defendant constructed a driveway, by making excavations and piling up rocks and refuse, across the plaintiff’s land, within the limits of the highway as located, but outside of the wrought or traveled portion thereof. These acts and the use of the driveway by the defendant are the trespasses complained of. The case comes to the law court upon agreed facts with the stipulation that if the defendant is liable the damages shall be nominal. It is unnecessary to decide whether the defendant has the right to use any portion of the highway as located for the purpose of passing between his lot and the highway, or whether, as he claims, he has gained a right by prescription to use this driveway, under the facts stated, because whatever his rights may be in regard to passing over the land of the plaintiff, he clearly had no right to make excavations or pile up rocks upon the plaintiff’s land, even if this was reasonably necessary in making the driveway used by him, safe and convenient. “The owner of land over which a highway is laid retains his right in the soil for all purposes which are consistent with the fidl enjoyment of the easement acquired by the public. This right of the owner may grow less and less as the public needs increase. But at all times he retains all that is not needed for public uses, subject however, to municipal or police regulations.” Allen v. City of Boston, 159 Mass. 324. The public have no right in a highway, excepting the right to pass and repass thereon. Stinson v. Gardiner, 42 Maine, 248. [504] It necessarily follows that the defendant had no right to build a driveway upon this land of the plaintiff, although within the limits of the highway, for his private use and convenience. In the use of this driveway he was not a traveler upon the public highway, but it was built and used by him for his private convenience because of the difficulty of passing directly from his land to the • highway. Whenever the public necessity or convenience requires that the whole, or any greater portion than previously traveled, of a highway, should be built as a road for public travel, the duty and exclusive authority of doing such work as may be necessary is given by our statutes to the road commissioners or highway surveyors. The law is thus stated in Hollenbeck v. Rowley, 8 Allen, 473. “ But entering upon land without the traveled road, and by excavations or embankments widening the road, to the prejudice of the adjacent owner, or in disturbance of his soil, is an unauthorized act. Gen. Sts. c. 44, vest in the surveyors of highways the authority for making all necessary repairs on public highways; and individuals, unauthorized by such surveyors or other lawful authority, cannot lawfully enter upon the land of the adjacent owner situated without the limits of the worked road, and take and remove earth; nor can they interfere with- the same by placing rocks, stones and rubbish upon his land without the limits of the worked and traveled way.” The entry will therefore be, Judgment for plaintiff. Damages assessed at one dollar.