§ 868. Manner of use; further considered. There are many acts or uses of public highways which may not in effect constitute an obstruction technically speaking, of a highway, but which may be regarded as a nuisance unless authorized by some legislative act.882 The purpose for which a highway is created and maintained should not be forgotten; it is established primarily as a means of communication by ordinary methods as a way of passing and repassing 883 and further for the secondary purpose of supplying to abutting owners several private rights, namely, the easements of air, light and access. 884 There are many uses to which an abutter is entitled because of the existence of these private rights that cannot be regarded as obstructions but which are incidental to the legitimate use of the street by him.885 They are not either to be regarded as nuisances unless continued for that length of time or done in such a manner as to conflict with the right of the public as a whole to use the highway as a plaintiff. The latter should have laid its pipes in such manner that ordinary and suitable repairs of the road would not affect them. The defendant has violated no law, nor has it invaded any right of the plaintiff." Elster v. City of Springfield, 49 Ohio St. 82, 30 N. E. 274; Bryn Mawr Water Co. v. Lower Merion Tp., 15 Pa. Co. Ct. R. 527; Roanoke Gas Co. v. City of Roanoke, 88 Va. 810, 14 S. E. 665. See, also, § 900, post. 882 City of Lewiston v. Booth, 3 Idaho, 692, 34 Pac. 809; Scammon v. City of Chicago, 25 Ill. 424; Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 409. The construction of a passageway over a street by an abutting owner is not a public use of the street and cannot be authorized. French v. Camp, 18 Me. 433; Runyon v. Bordine, 14 N. J. Law (2 J. S. Green) 472; Com. v. Christie, 13 Pa. Co. Ct. R. 149. 883 Malone v. State, 51 Ala. 55; Craig v. People, 47 Ill. 487; Com. v. Wilkinson, 33 Mass. (16 Pick.) 175; Langley v. Town of Gallipolis, 2 Ohio St. 107. The easement of a public highway comprehends the right of all individuals in the community whether on foot or horseback or any kind of vehicle to pass and repass together with the right of the public to do all the acts necessary to improve it and keep it in repair. 884 Peck v. Smith, 1 Com. 103; Madison Tp. v. Gallagher, 159 Ill. 105; Bankhead v. Brown, 25 Iowa, 540. 885 Bybee v. State, 94 Ind. 443. The maintenance of an enclosed passageway between two buildings over a public street at a height from thirteen to fourteen feet above it but having no support on the street is held an obstruction of a highway. Callanan v. Gilman, 107 N. Y. 360; Clark v. Fry, 8 Ohio St. 358; Loberg v. Town of Amherst, 87 Wis. 641. means of travel, which is usually regarded as the primary and the superior purpose for which public ways are established.886 Interference with abutter's rights. The principle also obtains that many uses of a highway can be prevented even though authorized by the public authorities because they constitute an interference with some one or more of the abutter's private easements in the street, namely, those of air, light and access.887 § 869. Use by abutters. An abutter is entitled to the use of a highway for various purposes as incidental to either private or public rights in the highway and which cannot, therefore, be regarded as a nuisance except under the conditions noted in the preceding section. The use of the street for structural materials while erecting buildings 888 and for business purposes such as loading or unloading goods 989 are familiar and ordinary illustrations of a legitimate use, while the use of a sidewalk for packages,890 or the display of wares, 891 the 886 Atttorney General v. Brighton & H. Co-op. Supply Ass'n, 69 Law J. Ch. 204; Kerr v. Forgue, 54 Ill. 482; McCloughry v. Finney, 37 La. Ann. 31; Stuart v. Havens, 17 Neb. 211; State v. Buckner, 61 N. C. (Phil.) 558; Davis v. Corry City, 154 Pa. 602; Clark v. Fry, 8 Ohio St. 358. 887 Branahan v. Cincinnati Hotel Co., 39 Ohio St. 333; citing Schulte V. North. Pac. Transp. Co., 50 Cal. 592; Brayton v. City of Fall River, 113 Mass. 218; Pratt v. Lewis, 39 Mich. 7; State v. Lavarack, 34 N. J. Law, 201. Flynn v. Taylor, 127 N. Y. 596; Coburn v. Ames, 52 Cal. 387. 888 Chicago v. City of Robbins, 2 Black (U. S.) 418; City of Cleveland V. King, 132 U. S. 295; Martin v. Chicago, B. & Q. R. Co., 87 Ill. App. 208; Wood v. Mears, 12 Ind. 515; O'Linda v. Lothrop, 38 Mass. (21 Pick.) 292; City of New York v. Heft, 13 Daly (N. Y.) 301; In re Fiegle, 36 Misc. 27, 72 N. Y. Supp. 438; Price v. Betz, 199 Pa. 457, 49 Atl. 217. But see City of Lowell v. Simpson, 92 Mass. (10 Allen) 88. 889 General Elec. R. Co. v. Chicago, I. & L. R. Co. (C. C. A.) 107 E. 771; Attorney General v. Brighton & H. Co-op. Supply Ass'n, 69 Law J. Ch. 204; Haight v. City of Keokuk, 4 Iowa, 214; Gerdes v. Christopher & S. A. I. & F. Co., 124 Mo. 347; Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380; Manley v. Leggett, 62 Hun, 562, 17 N. Y. Supp. 68. 890 Commonwealth V. Lennon (Mass.) 52 N. E. 521. It is no defense for a violation of an ordinance against obstructing a sidewalk that it was done while removing furniture from a house in obedience to a writ of execution. People v. Cunningham, 1 Denio (N. Y.) 524; Davis v. Corry, 154 Pa. 602. But see People v. Van Houten, 13 Misc. 603, 35 N. Y. Supp. 186. 891 State v. Rayantis, 55 Minn. 126; State v. Messolongitis, 74 Minn. construction of scales,892 or areass93 in an abutting street by the adjoining owner, are not ordinarily regarded as a proper use by him. Yet a use which involves the placing of objects of such a character as will naturally frighten horses ordinarily gentle and well broken is not lawful or reasonable and constitutes a nui § 870. Miscellaneous uses of a street regarded as obstructions. One of the proper purposes and the primary one for which a highway can be used is travel, and this idea, therefore, necessarily prohibits the use of a street or any portion of it as a lounging or gathering place either for an individual or a number of them,895 for standing vehicles during long periods of time,s90 placing pla 165, 77 N. W. 29. "We cannot hold that the license of a foot peddler authorizes him to expose for sale his goods on the sidewalk for an unreasonable length of time. Such a license does not authorize him to pre-empt a portion of the sidewalk, and use it as a market place or a fruit stand. He may, under such license, go from house to house, and from place to place, in search of customers; and, if there is no ordinance to the contrary, he may solicit customers on the street; but he cannot stop an unreasonable length of time for that purpose or for the purpose of making a sale." People v. Willis, 9 App. Div. 214, 41 N. Y. Supp. 168; Carlisle v. Baker, 1 Yeates (Pa.) 471; City of Philadelphia v. Sheppard, 158 Pa. 347, 27 Atl. 972. But see State v. Summerfield, 107 N. C. 895, 12 S. E. 114. 892 Incorporated Town of Spencer v. Andrew, 82 Iowa, 14, 47 N. W. 1007, 12 L. R. A. 115; Emerson v. Babcock, 66 Iowa, 258; Davis v. Town of Anita, 73 Iowa, 325. 893 Costello v. State, 108 Ala. 45; City of Denver v. Girard, 21 Colo. 447; Buek v. Collis, 17 App. Div. 465, 45 N. Y. Supp. 291. 894 Webb v. City of Demopolis, 95 Ala. 116, 21 L. R. A. 62; Dimock v. Town of Suffield, 30 Conn. 129; Jewett v. Gage, 55 Me. 538; Lynn v. Hooper, 93 Me. 46, 44 Atl. 127, 47 L. R. A. 752. Hay caps. Kingsbury v. Inhabitants of Dedham, 95 Mass. (13 Allen) 186. It does not necessarily follow, however, that an object which frightens horses is either an obstruction or a nuisance. Bennett v. Lowell, 12 R. I. 167. 895 People v. Cunningham, 1 Denia (N. Y.) 524; Barker v. Com., 19 Pa. 412. White v. Kent, 11 Ohio St. 550. Auction sales in streets prohibited. 896 Sikes v. Town of Manchester, 59 Iowa, 65; Com. v. Fenton, 139 Mass. 195, 29 N. E. 653. A municipal regulation prohibiting the stoppage of teams on streets for more than twenty minutes is a valid police regulation. People v. Keir, 78 Mich. 98, 43 N. W. 1039; Tomlin v. City of Cape May, 63 N. J. Law, 429, 44 Atl. 209; Northrop v. Burrows, 10 Abb. Pr. (N. Y.) 365; Manley v. Leg cards, signs, 897 depositing rubbish or impediments to travel,898 or blockading street crossings with cars or engines. 899 But water, gas or sewer pipes laid under ground are not usually regarded as obstructions." 900 § 871. Miscellaneous uses of a street regarded as a nuisance. Public authorities may prohibit and regulate the use of a street in such a manner as to constitute a nuisance. In addition to acts or uses already named and regarded as cases of this character may be suggested the scattering of hand bills through the streets,901 or the accumulation of refuse or litter,902 and others 903 of a similar gett, 67 Hun (N. Y.) 562; Borough of Norristown v. Moyer, 67 Pa. 355. But see State v. Rayantis, 55 Minn. 126, 56 N. W. 586; State v. Edens, 85 N. C. 522. 897 Com. v. McCafferty, 145 Mass. 364, 14 N. E. 451. An ordinance forbidding the display on sidewalks of shows or parades, placards and signs, held reasonable. But see State v. Higgs, 126 N. C. 1014, 35 S. E. 473, 48 L. R. A. 446. 898 Williams v. Town of Hardin, 46 Ill. App. 67; Wood v. Mears, 12 Ind. 515; O'Linda v. Lothrop, 38 Mass. (21 Pick.) 292; State V. Campbell, 80 Mo. App. 110; Baird v. Clark, 12 Ihio St. 87. Temporary fence. Nagle v. Brown, 37 Ohio St. 7. Tree falling in highway. Com. v. Passmore, 1 Serg. & R. (Pa.) 217; City of Scranton v. Scranton Steel Co., 154 Pa. 171; Hundhauser v. Bond, 36 Wis. 29; Loberg v. Town of Amherst, 87 Wis. 634. 899 State v. Chicago, M. & St. P. R. Co., 77 Iowa, 442, 4 L. R. A. 298; Com. v. New York, N. H. & H. R. Co. 112 Mass. 412; Rauch v. Lloyd, 31 Pa. 358. See, also, §§ 460, 818, and 854, ante. 900 Consumers' Gas Trust Co. v. Huntsinger, 14 Ind. App. 156; Kin caid v. Indianapolis Natural Gas Co., 124 Ind. 577, 8 L. R. A. 602; Borough of Brigantine v. Holland Trust Co., (N. J. Eq.) 37 Atl. 438; Kelsey v. King, 32 Barb. (N. Y.) 410; Sterling's Appeal, 111 Pa. 35. See, also, §§ 896 et seq., post. 901 People v. Armstrong, 73 Mich.. 288, 41 N. W. 275, 2 L. R. A. 721. But the power must be expressly granted. City of Philadelphia v. Brabender, 9 Pa. Dist. R. 697, 17 Pa. Super. Ct. 331. Such an ordinance held valid even where it excludes from its operation the delivery of circulars enclosed in addressed envelopes. 902 State v. City of St. Louis, 161 Mo. 371, 61 S. W. 658. Ordinance relative to construction of litter boxes held valid. Raymond v. Keseberg, 84 Wis. 302, 19 L. R. A. 643. 903 Sierra County v. Butler, 136 Cal. 547, 69 Pac. 418. Running water in a highway. Mills v. Wilmington City R. Co., 1 Marv. (Del.) 269, 40 Atl. 1114. In the absence of proof to the contrary the use of a highway for blasting purposes will be presumed to be lawful. City of Rochester v. Close, 35 Hun (N. Y.) 208; Lewis v. Ballston Terminal R. Co., 45 App. Div. 129, 60 N. Y. Supp.. nature or those involving the use of a highway by some strange vehicle, engine or motor.904 $872. Regulation of traffic. Public authorities may also adopt measures which have for their purpose a regulation of traffic or travel on a street either based upon the idea of its constituting a nuisance and obstruction or upon the further one of preserving or maintaining the street in a proper condition for travel. Ordinances fixing the limit of speed at which horses or vehicles can be driven or ridden,905 or the maximum load carried by trucks or teams,906 prescribing the kind of 1035. Blowing whistles. Mason v. West, 61 App. Div. 40, 70 N. Y. Supp. 478. Use of street by automobiles. 904 Kerney v. Barber Asphalt Pav. Co., 86 Mo. App. 573. Mo. Rev. St. 1899, § 5201, does not apply to the movements of steam carriages on city streets. Nason v. West, 31 Misc. 583, 65 N. Y. Supp. 651. An automobile is not within the application of N. Y. Laws 1890, c. 568; Laws 1891, c. 212 or Laws 1892, c. 686. Iowa Laws 1892, c. 68, p. 92. Miscellaneous uses: Henline vV. People, 81 Ill. 269. Gate. Pettis v. Johnson, 56 Ind. 139. Steps. Comv. Ruggles, 88 Mass. (6 Allen) 588; Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380. Goods in transit. Hand v. Klinker, 54 N. Y. Super. Ct. (22 J. & S.) 433. Wagon on sidewalk. Reimer's Appeal, 100 Pa. 182. Bay window. Temporary booths for trade: Costello v. State, 108 Ala. 45, 35 L. R. A. 303; Ely v. Campbell, 59 How. Pr. (N. Y.) 333; Barling v. West, 29 Wis. 307. 905 Sykes v. Lawlor, 49 Cal. 237; Ford v. Whiteman, 2 Pen. (Del.) 355, 45 Atl. 543; City of Chicago v. Banker, 112 Ill. App. 940. Speed of automobiles. Green v. Eden, 24 Ind. App. 583, 56 N. E. 240; Osborn v. Jenkinson, 100 Iowa, 432, 69 N. W. 548; Com. v. Worcester, Thacher Ct. Cas. (Mass.) 100; Com. v. Roy, 140 Mass. 432; Com. v. Crowninshield, 187 Mass. 221; O'Hara v. Globe Iron & Foundry Co., 66 Mo. App. 53; Hanrahan v. Cochran, 12 App. Div. 91, 42 N. Y. Supp. 1031; Kahn v. Eisler, 22 Misc. 350, 49 N. Y. Supp. 135; Schaffer v. Baker Transfer Co., 29 App. Div. 459, 51 N. Y. Supp. 1092; Farley v. City of New York, 152 N. Y. 222, 46 N. E. 506; Crampton v. Ivie, 124 N. C. 591, 32 S. E. 968; May v. Hahn, 22 Tex. Civ. App. 365, 54 S. W. 416. 906 Nagle v. City Council of Augusta, 5 Ga. 546; Harrison v. City of Elgin, 53 Ill. App. 452; Hamilton v. State, 22 Ind. App. 479, 52 N. E. 419. The belief of the defendant as to whether he had a lawful load is immaterial. State v. Boardman, 93 Me. 73, 44 Atl. 118, 46 L. R. A. 750; Commonwealth V. Mulhall, 162 Mass. 496, 39 N. E. 183; State v. Rayantis, 55 Minn. 126; People v. Wilson, 62 Hun. 618, 16 N. Y. Supp. 583; State v. Messenger, 63 Ohio St. 398, 59 N. E. 105. But see State v. Rohart, 83 Minn. 257, 86 N. W. 93, 333, 54 L. R. A. 947. |