Covington County v. Collins

Mayes, J., delivered the opinion of the court. According to the testimony of Collins himself, it is shown that the traction engine was operating over a public road leading — 336 — to his two mills and that it made one or two trips a day. The time required to make these trips was an average of fifty-five minutes going and coming, and the distance it traveled over the highway was about two and one-half miles. One trip would be made in the morning and one in the afternoon. The lumber hauled by the traction engine was hauled by means of wagons coupled to the engine and to each other, and on these wagons the lumber was loaded, and the amount carried on each wagon would average about one thousand eight hundred to two thousand feet. To this traction engine were coupled from two to four wagons. It is not shown by any testimony that the running of this traction engine in this way damaged the road itself, but actual damage to the road is not the only question in this case to be considered. There is a great deal of other testimony — some of the witnesses testifying that they were inconvenienced by the running of this traction engine; others testifying that the road was made dangerous for travelers by reason of the fact that their teams were frightened, and that they would have to take bypaths to pass around this engine when it was approaching, etc. It was the judgment of the board of supervisors of the county that the running of this traction engine was detrimental to the use of the road by the public, and that it constituted an obstruction to the highway, and was a nuisance, and they ordered it discontinued. This is not a case of occasional use of the highway for the passage of this traction engine for the purpose of transporting it from one place to another; but the record shows that the road is being used for the purpose of running this traction engine between the two mills and hauling lumber. In 15 Am. & Eng. Encyc. of Law (2d ed.), p. 505, it is said that: “The use of the highway for the passage of an object or vehicle of an unusual character, and therefore calculated to frighten horses, is not in itself illegal, and it has accordingly been decided that the propulsion of objects by steam is not necessarily a nuisance. The question seems to be dependent to some extent upon the — 337 — frequency of the use of the highway in such manner, and also upon a particular form of a moving object.” Many states have held that a bicyclist, or a person using an automobile, has as much right to the public road as a person using any other means of transportation; and it is argued by counsel for appellee Collins, that, inasmuch as the courts have so held, a person may use a traction engine, just as he may use an automobile or a bicycle. We are not considering the rights one may have to run an automobile or a bicycle on a highway. We will determine that when the question comes up. The only question we have to consider in this case is whether or not one may make constant use of a public highway for the purpose of running a traction engine with from two to four wagons attached thereto, and whether or not this constitutes a lawful use. Whether or not a particular use of a highway constitutes a nuisance is not, of course, determinable alone by the adjudication of the board of supervisors to that effect; but it is a question of law. But, since the board is vested with full jurisdiction in all matters appertaining to the public roads, its declaration upon this subject is very persuasive, and particularly when we consider it as applied to the case now under consideration. In our search of the authorities we have not found a single case, in the absence of a statute which gave the authority, which holds that the public highway may be continuously used for the purpose of running a traction engine in order to facilitate the business of a private individual. Many states have statutes upon this subject, and the very fact that it has been necessary to legislate along these lines shows that the continued use of a traction engine on the public highway is regarded with disfavor and looked upon as dangerous to the public in the use of the road. In Wisconsin under St. Wis. 1898, § 1347b, as amended by chapter 197, p. 304, Laws 1899, the owner or operator of a steam engine on any public highway in any town, etc., is required to signal and stop it when approached, within fifteen rods in either direction, by a team or person riding or driving any animal, and — 338 — to render all proper assistance to enable such team to pass in safety. In Maryland, by article 27, §§ 399, 400, of the Code of Public General Laws, it is required that every traction engine propelled by steam on any public road shall be accompanied by at least two men, whose duty it shall be to so conduct the engine as to cause as little harm as possible to horses on the road, and to render all reasonable assistance to persons driving, and to keep the engine stationary when a horse is alarmed. Miller v. Addison, 96 Md., 731, 54 Atl., 967; Cudd v. Larson, 117 Wis., 103, 93 N. W., 810. In Indiana, statutes have been enacted making the employment of automobiles on public highways a lawful use of the highway. See Acts Ind., 1905, p. 202, c. 123, and Burns’ Ann. St. Supp. 1905, § 8703h. McIntyre v. Orner, 166 Ind., 57, 76 N. E., 750, 4 L. R. A. (N. S.), 1130, 117 Am. St. Rep., 363. In all the states where this has been the subject of legislation, the legislatures have made various provisions; some of them requiring at least two persons to precede the traction engine, etc. Whatever may be the holding of other states upon this subject where they have passed these statutes, the testimony in this case fully warranted the board of supervisors in declaring the continuous running of this traction engine on the public highways dangerous to travel and a nuisance, and such extraordinary use of the highway as to malee it unlawful. We have no reference to the occasional use for the purpose of changing the location of the traction engine, if proper precautions are taken to avoid damage to others in this use of the highway. It can make no difference how many petitioners living along this road sign the petition to permit the use of this traction engine on it. An unlawful use of the highway cannot be made lawful thereby. The question is: Is the continued running of this traction engine on this highway an unusual, unreasonable, and extraordinary use of the highway, and does it endanger the safety of those who have the right to travel upon it ? If the use is unreasonable, unusual, and dangerous to safe travel, it is perfectly within the power of the board of supervisors to put a — 339 — stop to it as an obstruction and a public nuisance, if there be but one person along this road who objects to it. The right of one individual is as sacred in the eyes of the law as are those of the multitude. One person, or many persons, for reasons of their own, may be willing to submit to the dangers which may be entailed by the running of this traction engine and the impediment which it offers to safe travel along this highway; but this furnishes no reason why it should be imposed upon any individual who- objects to it, if the use of the traction engine over the road is an unlawful use. The highway belongs in common to all the public, and to any one of the public; and any one of the public has the right to object to any but the proper use of that which is the common property of all. Commonwealth v. Allen, 148 Pa., 358, 23 Atl. 1115, 16 L. R. A., 148, 33 Am. St. Rep., 830. The case of Macomber v. Nichols, 34 Mich., 212, 22 Am. Rep., 522, cited by counsel for appellee, is not in point. There was no question in that case as to the right of the public^authority, vested with full jurisdiction over the public highways, to declare a particular extraordinary use of the highway an obstruction and a nuisance and to order its discontinuance. It was a private litigation to recover damage by one party against another. It that case the facts do not show that there was any continued use of a highway for the purpose of hauling over the road by the steam engine in question. On the other hand, the facts show that the engine in question was a threshing machine, moved from place to place only ocassionally, when it became necessary to go to another place. There was no continued use of the road for the purpose of running this engine; no hauling back and forth over the road, day by day, with wagons coupled to it. In short, in the Macomber case, sv/pra, the business engaged in was not in the use of the road to make the threshing machine useful and valuable in the owner’s business; but in using, the machine, it became neeessaiy to occasionally carry it over the public highway, and the court held that this could be — 340 — done. The case, supra, is quite distinct from that which is presented in this record, and an analysis of it shows that it is not an apt authority to sustain the proposition that the appellee here has the right to use the public highways continuously, for the purpose of running this traction engine over it. In this very opinion, it is said that the question always is one of reasonable use. We cannot be unmindful of the fact that at this present day and time the country highways are used almost exclusively by teams drawn by animals. It may be that an automobile, or bicycle, has as much right to the road as these teams; but, as stated, we are not called upon to decide this question. We think the use of a traction engine upon this road at the place and under the circumstances was an unusual, unreasonable, and unlawful use to make of this road, and that the board of supervisors had the right to prevent it. The jurisdiction over the roads being confided to the board of supervisors both by the constitution and the statute, it will be a rare case, and one of manifest abuse of power, whenever this court holds that not to be an obstruction of the highway which the board of supervisors have officially declared to be an obstruction. The injunction is reinstated, and the decree is reversed and cause remanded.