The Road and the Roadside Part 5

[78] 25 Me. 538.

As an offset to his advantages as adjoining owner there are a few disadvantages. Highways are set apart, among other things, that cattle and sheep may be driven thereon; and as, from the nature of such animals, it is impossible even with care to keep them upon the highways unless the adjoining land is properly fenced, it follows that when they are driven along the road with due care, and then escape upon adjoining land and do damage their owner is not liable therefor, if he makes reasonable efforts to remove them as speedily as possible.[79] Likewise, if a traveller bent upon some errand of mercy or business finds the highway impa.s.sable by reason of some wash-out, snowdrift, or other defect, he may go round upon adjoining land, without liability, so far as necessary to bring him to the road again, beyond the defect.[80] If a watercourse on adjoining land is allowed by the land-owner to become so obstructed by ice and snow, or other cause, that the water is set back, and overflows or obstructs the road, the highway surveyor may, without liability, enter upon adjoining land and remove the nuisance, if he acts with due regard to the safety and protection of the land from needless injury.[81]

[79] 114 Ma.s.s. 466.

[80] 7 Cush. 408.

[81] 134 Ma.s.s. 522.

A town or city has a right, in repairing a highway, to so raise the grade or so construct the water-bars within its limits, as to cause surface water to flow in large quant.i.ties upon adjoining land, to the injury of the owner thereof; but, on the other hand, the land-owner has a right to cause, if he can, the surface water on his land to flow off upon the highway, and he may lawfully do anything he can, on his own land, to prevent surface water from coming thereon from the highway, and may even stop up the mouth of a culvert built by a town across the way for the purpose of conducting such surface water upon his land, providing he can do it without exceeding the limits of his own land.[82]

[82] 13 Allen, 211, 291; 136 Ma.s.s. 119.

When the owner of land is constructing or repairing a building adjoining the highway, it is his duty to provide sufficient safeguards to warn and protect pa.s.sing travellers against any danger arising therefrom; and if he neglects to do so, and a traveller is injured by a falling brick, stick of timber, or otherwise, he is responsible.[83]

[83] 123 Ma.s.s. 26.

If the adjoining owner of a building suffers snow and ice to acc.u.mulate on the roof, and allows it to remain there for an unusual and unreasonable time, he is liable, if it slides off and injures a pa.s.sing traveller.[84] And, generally, the adjoining owner is bound to use ordinary care in maintaining his own premises in such a condition that persons lawfully using the highway may do so with safety.

[84] 101 Ma.s.s. 251; 106 Ma.s.s. 194.

The general doctrine as to the use of property is here, as elsewhere, _Sic utere tuo ut alienum non laedas_,--"So use your own property as not to injure the rights of another." If you make an excavation on your land so near to a highway that travellers are liable accidentally to fall therein, you had better surround it with a fence or other safeguard sufficient to protect reasonably the safety of travellers. If you have any pa.s.sage-ways, vaults, coal-holes, flap-doors, or traps of any kind on your premises, which are dangerous for children or unwary adults, you had better abolish them, or at any rate take reasonable precaution to cover or guard them in such manner as ordinary prudence dictates, and especially if they are near the highway; for if you do not you may, some time when not convenient for you, be called upon to pay a large claim for damages or to defend yourself against an indictment. But if you have so covered and guarded them, and by the act of a trespa.s.ser, or in some other way without fault on your part, the cover, fence, or guard is removed, you are not liable until you have had actual or constructive notice of the fact, and have had reasonable opportunity to put it right.[85]

[85] 4 Carr. & Payne, 262, 337; 51 N.Y. 229; 19 Conn. 507.

CHAPTER XV.

PRIVATE WAYS.

A private way is the right of pa.s.sage over another man's land. It may be established and discontinued in the same manner as a public way, and it may also arise from necessity. A way of necessity is where a person sells land to another which is wholly surrounded by his own land, or which cannot be reached from the public highways or from the land of the purchaser. In such case the purchaser is unable to reach his land at all unless he can go over some of the surrounding estates; and inasmuch as he cannot go over the premises of those who are strangers to him, in law, and inasmuch as public policy and simple justice call for a pa.s.sage-way to his land, for his use in the care and cultivation of it, the law gives him a way of necessity over his grantor's land, which runs with his land, as appurtenant thereto, so long as the necessity exists, even if nothing is said in the deed about a right of way, because it is presumed that when the grantor sells the land he intends to convey with it a right of way, without which it could not be used and enjoyed; but when the necessity ceases, the right ceases also.[86] In the absence of contract, it belongs to the owner of a private way to keep it in repair,[87] and for this purpose he may enter upon the way and do whatever is necessary to make it safe and convenient; but if in so doing he removes soil and stones which are not needed on the way, such surplus material belongs to the owner of the land over which the way pa.s.ses.[88] If a defined and designated way becomes impa.s.sable for want of repair or by natural causes, the owner of the way has not the right of a traveller on a public road to go outside the limits of the way in order to pa.s.s from one point to another.[89]

But if the owner of the land obstructs the way, a person ent.i.tled to use it may, without liability, enter upon and go over adjoining land of the same owner, provided he does no unnecessary damage.[90] The reason for this distinction in the law between a public and a private way is that in the case of a private way the owner of the way, who alone has the right to its use, is bound to keep it in repair, whereas in the case of a public way the traveller is under no obligation to keep it in pa.s.sable condition. A private way once established cannot be re-located except with the consent of both the owner of the land and of the way; but if both are agreed, the old way may be discontinued and re-located in another place.[91] The owner of the soil of a private way may, the same as the owner of the fee in a highway, make any and all uses thereof to which the land can be applied.[92] In the absence of agreement to the contrary, he may lawfully and without liability cover such way with a building or other structure, if he leaves a s.p.a.ce so wide, high, and light that the way is substantially as convenient as before for the purpose for which it was established.[93] And so, in the absence of agreement, he may maintain such fences across the way as are necessary to enable him to use his land for agricultural purposes, but he must provide suitable bars or gates for the use and convenience of the owner of the way. He is not required to leave it as an open way, nor to provide swing gates, if a reasonably convenient mode of pa.s.sage is furnished; and if the owner of the way or his agents leave the bars or gates open, and in consequence thereof damage is done by animals, he is liable to respond in damages.[94] "The law of the road" applies as well to private as to public ways, as the object of the law is to prescribe a rule of conduct for the convenience and safety of those who may have occasion to travel, and actually do travel, with carriages on a place adapted to and fitted and actually used for that purpose.[95] The description of a way as a "bridle-road" does not confine the right of way to a particular cla.s.s of animals or special mode of use, but it may be used for any of the ordinary purposes of a private road.[96]

[86] 14 Ma.s.s. 49; 2 Met. 457; 14 Gray, 126.

[87] 12 Ma.s.s. 65.

[88] 10 Gray, 65.

[89] Wash, on Ease. *196.

[90] 2 Allen, 543.

[91] 5 Gray, 409; 14 Gray, 473.

[92] Wash, on Ease. *196.

[93] 2 Met. 457.

[94] 31 N. Y 366; 44 N.H. 539; 4 M. & W. 245.

[95] 23 Pick. 201.

[96] 16 Gray, 175.

CHAPTER XVI.

DON'T.

In school, church, and society many things are taught by the prohibitory don't; and thus many rules of law relating to public and private ways may be taught and ill.u.s.trated in the same way. For instance:--

Don't ever drink intoxicating liquor as a beverage, at least in large quant.i.ties. If you ever have occasion to use it at all, use it very sparingly, especially if you are travelling or are about to travel with a team; for if you should collide with another team, or meet with an accident on account of a defect in the way, in a state of intoxication, your boozy condition would be some evidence that you were negligent. The law, however, is merciful and just, and if you could satisfy the court or jury that notwithstanding your unmanly condition you were using due care, and that the calamity happened through no fault of yours, you would still be ent.i.tled to a decision in your favor; but when you consider how apt a sober human mind is to think that an intoxicated mind is incapable of clear thought and intelligent action, I think you will agree with the decisions of the courts, which mean, when expressed in plain language, "You had better not be drunk when you get into trouble on the highway."[97]

[97] 3 Allen, 402; 115 Ma.s.s. 239.

Don't ever approach a railway crossing without looking out for the engine while the bell rings, and listening to see if the train is coming; for there is good sense as well as good law in the suggestion of Chief Baron Pollock, that a railway track _per se_ is a warning of danger to those about to go upon it, and cautions them to see if a train is coming. And our court has decided that when one approaches a railway crossing he is bound to keep his eyes open, and to look up and down the rails before going upon them, without waiting for the engineer to ring the bell or to blow the whistle.[98] It is a duty dictated by common sense and prudence, for one approaching a railway crossing to do so carefully and cautiously both for his own sake and the sake of those travelling by rail. If one blindly and wilfully goes upon a railway track when danger is imminent and obvious, and sustains damage, he must bear the consequences of his own rashness and folly.

[98] 12 Met. 415.

Don't drive horses or other animals affected by contagious diseases on the public way, or allow them to drink at public watering-places, or keep them at home, for that matter. The common law allows a man to keep on his own premises horses afflicted with glanders, or sheep afflicted with foot-rot, or other domestic animals afflicted with any kind of diseases, provided he guards them with diligence and does not permit them to escape on to his neighbor's land or the public way. But under the statute law of this State, a man having knowledge of the existence of a contagious disease among any species of domestic animals is liable to a fine of five hundred dollars, or imprisonment for one year, if he does not forthwith inform the public authorities of such disease.[99] Aside from the penalty of the statute law, it is clearly an indictable offence for any one to take domestic animals affected with contagious diseases, knowing or having reason to know them to be so affected, upon the public ways, where they are likely to give such diseases to sound animals; and he would be answerable in damages, besides.[100]

[99] St. 1885, c. 148.

[100] 2 Rob. N.Y. 326; 16 Conn. 200.

If you are afflicted with a contagious or infectious disease, don't expose yourself on a highway or in a public place; and don't expose another person afflicted with such disease, as thereby you may jeopardize the health of other people, and your property also, in case you should be sued by some one suffering on account of your negligence.[101]

[101] 4 M. & S. 73; Wood on Nuisances, 70.

When there is snow on the ground, and the movement of your sleigh is comparatively noiseless, don't drive on a public way without having at least three bells attached to some part of your harness, as that is the statute as well as the common law. By the statute law you would be liable to pay a fine of fifty dollars for each offence. And by the statute and common law, in case of a collision with another team, you would probably be held guilty of culpable negligence and made to pay heavy damages. Of course you would be allowed to show that the absence of bells on your team did not cause the accident or justify the negligence of the driver of the other team, but it would be a circ.u.mstance which would tell against you at every stage of the case.[102]

[102] 12 Met. 415; 11 Gray, 392; 8 Allen, 436.

If you have no acquaintance with the nature and habits of horses, and no experience in driving or riding them, don't try to ride or drive any of them on a public way at first, but confine your exercise in horsemans.h.i.+p to your own land until you have acquired ordinary skill in their management; for the law requires every driver or rider on a highway to be reasonably proficient in the care and management of any animal he a.s.sumes to conduct through a public thoroughfare.[103]

[103] 2 Lev. 173.

Don't ride with a careless driver, if you can help it, because every traveller in a conveyance is so far identified with the one who drives or directs it, that if any injury is sustained by him by collision with another vehicle or railway train through the negligence or contributory negligence of the driver, he cannot recover damages for his injuries. The pa.s.senger, in law, is considered as being in the same position as the driver of the conveyance, and is a partaker with him in his negligence, if not in his sins.[104]

[104] Addison on Torts, -- 479.

If you have a vicious and runaway horse, and you know it, you had better sell him, or keep him at work on the farm. Don't, at any rate, use him on the road yourself, or let him to other people to use thereon; for if in your hands he should commit injuries to person or property, you would have to foot the bills; and if he should injure the person to whom you had let him, unless you had previously informed him of the character and habits of the horse, you would be liable to pay all the damages caused by the viciousness of the horse. If you should meet with an accident by reason of a defect in the highway, you could not recover anything, however severely you might be injured or damaged, provided the vicious habits of the horse contributed to the accident.[105]