Appleton v. Inhabitants of Nantucket

Ames, J. It is provided by the Gen. Sts. c. 45, § 6, that a person, owning or occupying lands adjoining a highway or road in a town, may construct a sidewalk within such highway or road, and along the line of such land, indicating the width of such sidewalk, by trees, posts or curb-stones. The privilege allowed by this statute is attended with certain limitations and conditions, and is manifestly not intended to supersede or qualify the general obligation of towns to keep their highways and streets safe and convenient for travellers. By the express terms of the section giving the privilege, the sidewalk so constructed, with its posts and curb-stones, is still subject to the authority of the highway surveyors, - and is liable to be removed by them; and even if they do not interfere, the landowner, by maintaining it in front of his land, may nevertheless become responsible for unreasonably obstructing the way. In other words, the right to [164] construct and maintain such a sidewalk, and to define its limita by posts or otherwise, is subject to the condition that it must not unreasonably obstruct the way. In Macomber v. Taunton, 100 Mass. 255, cited by the defendant, the carriage way was of ample width, and was level, smooth and straight, and there was no trouble in passing except for the darkness. The post by the edge of the sidewalk in that case was held not to be a defect in the way for which the town was responsible. Whether, in a narrower road and under other circumstances, such a post might not be an unreasonable obstruction to the way, is a question not disposed of by that decision. It must generally be a pure question of fact, depending in every instance upon the special circumstances of the case. The defendant also refers to Young v. Yarmouth, 9 Gray, 386, in which it was held that a telegraph pole, at the edge of the sidewalk in a highway, was not a defect or obstruction for which the town was responsible. But that case appears to have turned upon the consideration that, by an express statute, (St. 1849, c. 93, § 3,) the location of the telegraph posts was by the selectmen, as public officers, and not as mere agents of the town, and was conclusive upon all parties. The judgment by Mr. Justice Dewey, in behalf of the court, is to the effect that, but for the above cited clause of the statute, such a post might have been found to be a defect that would render a town liable to any one injured thereby. The question for the jury therefore was whether the post, against which the plaintiff’s wagon struck, did unreasonably obstruct the way. This question might have been submitted to them in the exact words of the statute, but we are not prepared to say that the court was bound to use that precise form of expression. As a defect in a highway, rendering it unsafe to a careful traveller, is necessarily an obstruction to the way, the instruction given presented the question with sufficient precision. Exceptions overruled.