CHAPTER III.

COMMON RIGHTS IN HIGHWAYS

9. Kinds of public highways.

10. Bridge as a highway.

11. Cul-de-sac as a highway.

12. Ferries as highways.

13. Public square as a highway.

14.

15.

Railroads and street railways as highways.

Toll roads as highways.

16. Rivers and towpaths as highways.

17. Tidal not test of navigable water.

18. Inland lakes as highways.

19. Canals at common law.

20.

Easement of public in a highway.

9. Kinds of Public Highways.-The term "highways" is one of comprehensiveness somewhat like the term "land," as to which Blackstone said: "By the name land, which is nomen generalissimum, everything terrestrial will pass."" At all events it is a general term. Thus Lord Holt said in 1705 that: "Highway is the genus of all publick ways, as well cart, horse and footway." This case concerned an indictment for nonrepair of a bridge and it was held faulty for not alleging that the bridge was in the highway, thereby implying that if it were it would be a part of a highway.

10. Bridge as a Highway. In 1707 it was held sufficient in an indictment to allege that a bridge was a common bridge and "it is needless to say it is in the

12 Black. Com. 19.

2 Reg. v. Saintiff, 6 Mod. 255, 4 Vin. Abr. 502.

highway." This was implied. In 1810 it was said that a bridge is "as public as the highway itself is in which it is situate and of which for the purpose of passage it must be understood to form a part."" Our Federal Supreme Court has said: "At common law a bridge was a common highway and the county was bound to repair it," and: "It is therefore clear that at the common law a county might be required to maintain a bridge or causeway across its boundary line and extending into the territory of an adjoining county. The same rule prevails in this country."

A number of state cases might be noticed to sustain this view of a bridge as being part of a highway and in itself a highway, but it will be thought sufficient merely to cite some of them."

11. Cul-de-sac as a Highway.-A cul-de-sac, or a street open at one end only, if dedicated formally or used sufficiently long for presumption of dedication to arise, has been held to be a highway at common law,' and this ruling has been approved in common law states.s

§ 12. Ferries as Highways.-A ferry has been called a highway. Thus Lord Abinger said:" "A public

3 Reg. v. Sainthill, 2 Ld. Raym. 1174.

4 King v. Inhabitants of Bucks, 12 East. Rep. 191, 202.

5 Washer v. Bullitt County, 110 U. S. 558, 28 L. Ed. 249.

6 Chicago v. McGinn, 51 Ill. 266, 2 Am. Rep. 295; Com. v. Central Bridge Corp., 12 Cush. (Mass.) 243; Union Pac. R. Co. v. Colfax County, 4 Neb. 202; State v. Wood County, 72 Wis. 637.

7 Woodyer v. Hadden, 5 Taun. 125; Rugby Charity v. Merryweather, 11 East. 376, note.

8 Bartlett v. Bangor, 67 Me. 460, 467; People v. Kingman, 24 N. Y. 559; Pennick v. Morgan County, 131 Ga. 385, 392, 62 S. E. 300. 9 Huzzey v. Field, 2 Cromp. M. & R. 432, 437.

ferry is a public highway, of a special description, and its termini must be in places where the public have rights, as towns or villages, or highways leading to towns or vills, the right of carrying from town to town, in the other of carrying from one point to another, all who are going to use the highway to the nearest town or vill to which the highway leads on the other side." The statement that a ferry is "a public highway of a special description" refers rather to the rights of the grantee of a ferry franchise than to the nature of the ferry itself, that is to say, as Lord Abinger further observes, "It does not follow from this doctrine, that, if there be a river passing by several towns or places, the existence of a franchise or a ferry over it from a certain point on one side to a point on the other, precludes the King's subjects from the use of the river as a public highway from all the towns on its banks, and obliges them, upon all occasions, to their own inconveniences, to pass from one terminus of the ferry to the other.""10 These two cases show that a licensed ferry is merely a public highway across another public highway between termini in public highways on land or at landings where the public have rights. But rights in a ferry are not confined strictly to its landing places," that is to say, not to the very points of termini on land and to a direct course between them.

It has been said that: "Where a stream crosses a public highway the continuity of the highway is not broken. But as a physical obstruction intervenes it is necessary that some convenient means of

10 Tripp v. Frank, 4 T. R. 666.

11 Charles River Bridge v. Warren Bridge, 36 U. S. (11 Pet.) 420, 556, 9 L. Ed. 773.

transportation shall be furnished and the simplest and most economical in many cases is a ferry.""12 The case here cited shows a statute giving preference in establishing a public ferry to the owners of the soil where it is to be established.13

"A ferry franchise, whether granted to the owner of the land or another, is incidental to the title of so much of the land."" "A highway comes to the water on one side and crosses a ferry to the other side. ''15

A ferry also has been defined to be "A public highway or thoroughfare across a stream of water or river by boat instead of by a bridge; ""1 "a moving public highway upon water," and "merely the continuance of a road across a river. ''18

§ 13. Public Square as a Highway.-A public square may be a highway, where lying around a court because it is used by carriages, wagons, carts, horses, etc., though, generally speaking, it is a "public com

§ 14. Railroads and Street Railways as Highways. -Railroads and street railways have come into being since common law times and need not be further referred to here, except to say that the principle applied to toll roads of those times, mutatis mutandis, would seem to include them.

12 Sullivan v. Supervisors, 58 Miss. 790, 799.

13 People v. Mayo, 69 Hun. 559, 561, 23 N. Y. Supp. 938.

14 Richmond, etc., Tunrnpike Co. v. Rogers, 1 Duv. (Ky.) 135, 140.

15 New York v. Stamm, 106 N. Y. 1, 17, 12 N. E. 631.

16 Chilvers v. People, 11 Mich. 43, 51.

17 Patterson v. Wollman, 5 N. D. 608, 612, 67 N. W. 1040, 33 L. R. A. 536.

18 United States v. Fanning, Morr. (Iowa) 348, 351.

19 State v. Eastman, 109 N. C. 785, 13 S. E. 1019.

§ 15. Toll Roads as Highways.-"A turnpike road means a road having toll gates or bars on it, which were originally called 'turns' and were first constructed (in England) about the middle of the last (18th) century. Certain individuals, with a view to the repair of particular roads, subscribed among themselves for that purpose and erected gates upon the roads, taking tolls from those who passed through them. These were violently opposed at first and petitions were presented to Parliament against them, and acts were accordingly passed for their regulation. This was the origin of turnpike roads. The distinctive mark of a turnpike road is the right of turning back any one who refuses to pay toll."20 This case considered a railway act which spoke of turnpike roads being raised. or lowered at the expense of the railway company, and acts of Parliament were construed as defining what roads were turnpike roads.

It appears, from discussion in the case, that a statute, 13 Geo. 3 gave this definition. This statute becoming a law in 1773 would seem therefore to constitute a part of our common law. This law was a "General Turnpike Act," and seems to have been the first on this subject, other acts being passed later than 1776, a date when such acts ceased to be a part of our common law.

"Turnpike road is nomen generalissimum. It includes, as well, gravel and plank road and companies which have the right to collect tolls from persons passing over their roads, and enforcing the collection by erecting turnpikes or gates, or both, to obstruct the

20 Northam Bridge Co. v. London, etc., Ry. Co., 4 Jur. 892, 9 L. J. Exch. 165, 6 M. & W. 428, 437.