Sweet v. Perkins

Nash, J.: The law with respect to public highways and to fresh water rivers is the same and the analogy perfect as concerns the right of ■ soil. The presumption is that the Owners of the land on each side go to the center of the road, and they have the exclusive right to the soil, subject to the right of passage in the public. Being owners of the soil, they have the right to all ordinary remedies for the freehold. They may maintain an action for ejectment for encroachments upon the road, or an assize if disseised of it, or trespass against any person who digs up the soil of it, or cuts down any trees growing on the side of the road and left there for shade or ornament. The freehold and all profits belong to the owners of the adjoining lands. (3 Kent Comm. [14th ed.] *432.) A man shall be deemed in actual possession of a highway passing through his lands, and may maintain trespass against another for any use of the road except for the purposes of traveling, as for cutting timber, digging in the soil, piling boards, or any other exclusive appropriation of the soil. By laying out a road the public acquire a mere right of traveling, and every other right belongs to the owner as exclusively, and he has the same remedy for enforcing it, as if the highway had.never existed. (1 Cow. Tr. [2d ed.] 371.) For an appropriation of the soil of a road, trespass lies by the owner of the land through which the road passes. (Gidney v. Earl, 12 Wend. 98.) By the court, Nelson, J.: “The public [786] highways in this State were generally laid out and opened according .to the provisions of some statute law existing at the time. Prescription, or use for twenty years or more of a road, gives to the public a right to. the enjoyment of it for that purpose in some cases. The right of way, public or private, is but an incorporeal heredita-' ment, an. easement which, per se, does not divest the owner of the fee of the land; and for every other purpose, except ■ the use or servitude as a pubíie highway, the soil belongs to him, and he is entitled to' the same remedies for an injury to this residuary interest that lie would be entitled to if it was entire and absolute. When,therefore, a road runs through a man’s close, prima facie the fee of the land over which the road passes belongs to him as much as it does in any other part of the lot or tract. The law will not presume a grant of a greater interest or estate than is essential to the enjoyment of the public easement; the rest is parcel of the close. The fact that the- highway is fenced on each side is for the convenience of the owner, and has no necessary connection with the road. It follows, from the above view,-that the person in possession of the "farm or lot through which the. highway passes is, in contemplation of law,- in possession of the highway, subject to the public easement; for, being in possession of the lot, lie is prima facie, in possession of every parcel of it.” A highway, though common to all people, is said to be nothing but an easement on the lands over which it passes. The public have no other fight in it than the right of passage, with the powers and privileges incident 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 malting and repairing the road and its bridges. The owner of the soil still retains his exclusive right in all The mines, quarries, springs of water, timber and earth, for every purpose not incompatible with the public right' of way. While this rule as to the extent of interest which the public acquires in highways is strictly true as to highways in the country, it must be taken with some limitation as to the streets of a city or large village. There are certain uses, such as the construction 'of sewers and the laying of- gas and water pipes, to which the latter are generally applied. These — called urban servitudes — are the necessary incidents of streets in large cities, and are paramount to [787] the rights of the owner of the fee. (Thomp. Highw. [4th ed.] 26, 27.) The ownership of the fee and right of possession necessarily carries with it the full use and enjoyment of the soil for every purpose not incompatible with the public use. The abutting owner may, therefore, use the portion of the highway not required for public travel, cultivate the soil, store upon it crops, and as was done by the defendants, store compost or manure for use upon the adjoining land. This is the view taken of the rights of the public in highways in Massachusetts. In Howard v. Inhabitants of North Bridgewater (16 Pick. 189) the plaintiffs were driving on the highway when by accident the bolt by which the whiffletree was fastened to the crosspiece came out, and the whiffletree fell suddenly upon the horse’s legs, whereupon lie was frightened and broke from the harness, and ran with great violence upon large loose stones which lay in the road and broke his leg. The stones were seven feet eight inches from the cart rut. Per curiam: “From the facts in the case it appears that no negligence is imputable to the plaintiffs; that the injury to their horse was occasioned by the stones in the highway as alleged in the declaration, and that the defendants had notice of the obstruction, and the only question is, whether these stones constituted such an obstruction as renders the defendants liable for the injury sustained by the plaintiffs. If it was such an obstruction as they were bound to remove, they are answerable. It is necessary that we should consider what is required of towns.. The St. 1786, c. 81, § 1, provides that highways shall be kept in repair and amended from time to time; that the same may be safe and convenient for travelers with their horses, etc. Of course travelers are to use due diligence to avoid accidents and .towns are to keep the highways in such condition that travelers using such care may go safe. "We think it clear that this provision does not mean that the whole of the road from one boundary to the other shall be made smooth. * * * But there may be such obstructions out of the travelled path as will render the road unsafe, such for instance as would frighten horses. * * * We think that the obstruction complained of was not a defect for which the defendants are liable.” In Hoffart v. Town of West Turin (90 App. Div. 348) the [788] right of the pile of. wood to be or be placed upon the side of the highway was hot questioned. The judgment should be reversed and a new trial granted upon questions of law only. McLennan, P.J., concurred; Williams, J., voted for reversal on the ground that the verdict is excessive; Spring, J., dissented in an opinion in which Kruse, J., concurred. . _