8882

ITS CONTROL AND USE.

they have been legally acquired, laid out and established,-the
method is immaterial,-and if this is not shown, the proceedings
must fail, 985

985 Jones v. Doherty, 17 App. Div. (N. Y.) 628; Alexander v. State, 117 Ala. 220; Howard v. State, 47 Ark. 431, 2 S. W. 331. Failure to give personal notice of time and place of various meetings affords no defense for one indicted for obstructing a road.

Cockrum v. Williamson, 53 Ark.
131, 13 S. W. 592; Halliday v.
Smith, 67 Ark. 310, 54 S. W. 970;
Smith v. Talbot, 77 Cal. 16, 18 Pac.
795; Smithers v. Fitch, 82 Cal. 153,
22 Pac. 935; Peck v. Los Angeles
County Sup'rs, 90 Cal. 384, 27 Pac.
301; Freshour v. Hihn, 99 Cal. 443,
34 Pac. 87; Shepherd v. Turner, 129
Cal. 530, 62 Pac. 106; Bowden v.
Adams, 22 Fla. 208; Clements v.
Logan, 44 Ga. 30; Bryans v. Al-
mand, 87 Ga. 564, 13 S. E. 554;
Glaze v. Bogle, 97 Ga. 340.

Willey v. People, 36 Ill. App. 609.
To constitute a highway by dedica-
tion, acceptance must be shown.
Galbraith v. Littiech, 73 Ill. 209;
McIntyre v. Storey, 80 Ill. 127; Sal-
ter v. People, 92 Ill. App. 481; State
v. Birmingham, 74 Iowa, 407, 38 N.
W. 121. Hearsay evidence not ad-
missible.

State v. Dubuque & S. C. R. Co.,
88 Iowa, 508, 55 N. W. 727; State v.
Teeters, 97 Iowa, 458, 66 N. W.
754; Commonwealth v. Abney, 20
Ky. (4 T. B. Mon.) 477; State v.
Lochte, 45 La. Ann. 1405, 14 So.
215; Weed v. Sibley, 40 Me. 356;
Bradford v. Hume, 90 Me. 233, 38
Atl. 143; Village of Benson v. St.
Paul, M. & M. R. Co., 62 Minn, 198;
State v. Parsons, 53 Mo. App. 135;
Peterson v. Beha, 161 Mo. 513, 62
Abb. Corp. Vol. III — 7.

S. W. 462; Pavonia Land Ass'n v.
Temfer (N. J. Eq.) 7 Atl. 423; New
York & L. B. R. Co. v. Borough of
South Amboy, 57 N. J. Law, 252, 30
Atl. 628; Wiggins v. Tallmadge, 11
Barb. (N. Y.) 457; Town of West
Union v. Richey, 64 App. Div. 156,
71 N. Y. Supp. 871; State v. Myers,
20 Or. 442, 26 Pac. 307; Pittsburgh
& A. Bridge Co. v. Com. (Pa.) 8
Atl. 217; State v. Kendall, 54 S. C.
192, 32 S. E. 300. The manner in
which the highway is established is
immaterial so long as it is a legal

one.

Hill v. Hoffman (Tenn. Ch. App.)
58 S. W. 929; Laroe v. State, 30
Tex. Civ. App. 374, 17 S. W. 934;
Baker v. State, 21 Tex. App. 264, 17
S. W. 144; Ewing v. State (Tex. Cr.
App.) 38 S. W. 618. On trial for
obstructing a highway it need not
be shown that notice of its laying
out was given to the landowners.
McWhorter v. State, 43 Tex. 666.
Character of evidence necessary.

in

Hat

Lensing v. State (Tex. Cr. App.) 45 S. W. 572. The manner which the road may be established is immaterial. Cornelison v. State, 40 Tex. Cr. R. 159, 49 S. W. 384. The material question is whether a road is in fact a public one. field v. State (Tex. Cr. App.) 67 S. be W. 110; Bailey v. Com., 78 Va. 19. A road merely ordered to opened but not actually opened is not a "road" within the meaning of Herthe criminal laws relative to obState roads. structing lacher, 16 Wash. 325, 47 Pac. 748. But see Campau v. Button, 33 Mich. 525, which holds that the question

V.

If public authorities proceed without jurisdiction in the above respect in the removal of supposed obstructions or abatement of alleged nuisances, they may render the corporation liable for their acts.988

§ 883. Prescriptive rights.

It has been suggested above that the power of public corporations to preserve and protect property acquired by them for the use and benefit of the public either directly or as a trustee is a governmental and continuing one; it cannot be lost by a failure to exercise it or an attempt to contract or bargain it away. This principle holds especially in respect to public highways and grounds, unless special statutory provisions limit or define the power. Prescriptive rights, therefore, cannot be acquired by private individuals through a continued obstruction or encroachment upon public property, ,987 neither can the prescriptive right to commit a nuisance be acquired.98 This question has been considered in a previous section where many cases are cited.99

884. Legalized obstructions.

There are many uses of a highway and acts done by private individuals in respect to them which are not to be regarded as

of legal existence of a highway cannot be tried in proceedings under Michigan Statutes to remove obstructions to highways. See, also, cases cited in preceding note.

986 Barnes v. District of Columbia, 91 U. S. 540; Jones v. City of New Haven, 34 Conn. 14; Weed v. Greenwich Borough, 45 Conn. 170; Hildreth v. City of Lowell, 77 Mass. (11 Gray) 349; Hawks v. Inhabitants of Charlemont, 107 Mass. 414; Attorney General v. Heishon, 18 N. J. Eq. (3 C. E. Green) 410; Conrad v. Village of Ithica, 16 N. Y. 158; Lee v. Village of Sandy Hill, 40 N. Y. 442.

987 Webb v. City of Demopolis, 95 Ala. 116, 13 So. 289, 21 L. R. A. 62. "A city or town has no alienable

interest in the public streets thereof, but holds them in trust for its citizens and the public generally; and neither its acquiescence in an obstruction or private use of a street by a citizen, or laches in resorting to legal remedies to remove it, nor the statute of limitations, nor the doctrine of equitable estoppel, nor prescription, can defeat the right of the city to maintain a suit in equity to remove the obstruction." Jones v. Williams, 70 Ga. 704; Sims v. City of Chattanooga, 70 Tenn. (2 Lea) 694; State v. Wertzel, 62 Wis. 184. But see City of Big Rapids v. Comstock, 65 Mich. 78.

988 State v. Holman, 29 Ark. 58. 989 See § 824.

nuisances or obstructions where legislative authority has been obtained for the doing of the act or the particular use of property.990 Familiar illustrations of this rule are to be found in the occupation of highways by railroads, both steam and street, telegraph and telephone lines, the law in respect to which has been considered in previous sections.901 A legalized obstruction cannot be regarded as a nuisance provided the use or the act is one which can be lawfully authorized having in view the character of the public property, the purpose for which it is acquired and the superior rights of the public in it.992 It has already been suggested 993 in connection with this question that the use of public property or acts done in and upon it is to be considered both from the standpoint of its being an obstruction or a nuisance and of whether an abutting owner is not entitled to additional compensation for that use of public property. The question of a legal right to use and that of compensation on the part of the abutting owner are separate and distinct.

§ 885. Abutter's rights.

An abutter, it has been seen, is entitled to the easements of air, light and access to his property in addition to the rights which he may possess as a member of the community or as a revisionary proprietor.99 An act or a use of a public highway or of public property may be considered as an obstruction or a nuisance from the standpoint of the abutter alone; he will, therefore, be entitled. to damages, removal or abatement without a consideration of the rights of the public authorities or other individuals.995

990 City of Denver v. Girard, 21 Colo. 447; People v. City of New York, 20 Misc. 189, 45 N. Y. Supp. 900; People v. Baltimore & O. R. Co., 117 N. Y. 150; Hoey v. Gilroy, 129 N. Y. 132; Jorgensen v. Squires, 144 N. Y. 280; Wormser v. Brown, 149 N. Y. 163; Sullivan v. Webster, 16 R. I. 33, 11 Atl. 771; Echols v. State, 12 Tex. App. 615.

991 City of Concord v. City of Burleigh, 67 N. H. 196; Delaware & A. Tel. Co. v. Committee of Pensauken Tp., 67 N. J. Law, 91, 50 Atl. 452;

East Tennessee Tel. Co. v. City of Russellville, 106 Ky. 667, 51 S. W. 308; Spokane St. R. Co. v. City of Spokane Falls, 6 Wash. 521, 35 Pac. 1072. See §§ 833 et seq., ante.

992 Town of Salt Creek v. Highway Com'rs, 25 Ill. App. 187; State v. Edens, 85 N. C. 526.

993 See §§ 820 et seq.

994 Loberg v. Town of Amherst, 87 Wis. 641. See §§ 820 et seq., ante, and 885, 888, post.

995 Arkansas River Packet Co. v. Sorrels, 50 Ark. 466, 8 S. W. 683;

§ 886. Use of public highways by agencies distributing water, power or light and furnishing telephone and telegraph or transportation services.

Public highways and commons are acquired for public uses and primarily as a means of communication by ordinary methods or agencies. They belong to the public from side to side and from end to end, as declared by one authority,99 and any private use granted to them is illegal. Even the legislature is incapable of appropriating any portion to private persons or to devote them

to a public use which is so exclusive as to deprive the public generally of their rights.998 The ordinary use to which public highways are put is travel or transportation of persons and property in movable vehicles. The growth of modern cities and the making of new inventions imposes naturally. new burdens upon the public ways within their limits. The occupation of them for constructing sewers, laying pipes for the conveyance of water, gas and the like, and stringing wires for the transmission of light and power or as a means of communication, is not in accord with their origi nal and true character as public ways but uses thrust upon them through the necessities of urban conditions 999 which while it must be said are independent and secondary ones, yet, they are within the general purposes for which highways are designated.1000 The necessities of an urban population require many conveniences which are either of a public or of a quasi public character and to

13 L. R. A. 454; East Tennessee Tel. Co. v. Knoxville St. R. Co. (Tenn.) 3 Am. Electrical Cas. 406. But see People v. City of Rock Island, 215 Ill. 488, 74 N. E. 437.

998 Kansas City, N. & D. R. Co. v. Cuykendall, 42 Kan. 234, 21 Pac. 1051; Detroit City R. Co. v. Mills, 85 Mich. 634, 48 N. W. 1007; People V. Ft. Wayne & E. R. Co., 92 Mich. 522, 52 N. W. 1010, 16 L. R. A. 752; Lockwood v. Wabash R. Co., 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516. "The learned counsel urges with great force and plausibility that this railroad is a public use of the street, but it seems to us he ignores the fact that while the railroad is a public carrier, it has no right to the exclusive use of a public street, and such for all practicable purposes is the effect of this ordinance and its use of this street. No case in this state is authority for such exclusive use of a highway, and if it was we should not follow it. The company is a common carrier, and entitled as such

to collect tolls, but not the exclusive right to monoplize a public street and shut out the public and other carriers."

999 Montgomery V. Santa Ana Westminster R. Co., 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 651. "In the case of streets in a city there are other and further uses, such as the construction of sewers and drains, laying of gas and water pipes, erection of telegraph and telephone wires, and a variety of other improvements, beneath, upon, and above the surface, to which in modern times urban streets have been subjected. These urban servitudes are essential to the enjoyment of streets in cities and to the comfort of citizens in their more densely populated limits." Detroit City R. Co. v. Mills, 85 Mich. 634, 48 N. W. 1007. Dissenting opinion. Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310.

1000 State v. Cincinnati Gaslight & Coke Co., 18 Ohio St. 262.