The Road and the Roadside
by Burton Willis Potter
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These Pages are Respectfully Inscribed,


Transcriber's Note: The asterisks in footnotes 89 and 92 have do not have corresponding references in the text.


The chapters of this book relating to the laws of public and private ways were written and read as a lecture at the Country Meeting of the Massachusetts Board of Agriculture, in December, 1885, at Framingham, and have since been published in the "Report on the Agriculture of Massachusetts for the Year 1885."

The laws as herein stated are, as I believe, the present laws of Massachusetts relative to public and private ways, and therefore they may not all be applicable to the ways in other States; but inasmuch as the common law is the basis of the road law in all the States, it will be found that the general principles herein laid down are as applicable in one State as in another.

Believing that good roads and the love of rural life are essential to the true happiness and lasting prosperity of any people, these pages have been written with the sincere desire to do something to improve our roads and to encourage country life; and they are now given to the public with the hope that they will exert some little influence in promoting these objects.

B. W. P.

WORCESTER, MASS., May, 1886.





Roads the symbols of progress and civilization. Macaulay and Bushnell on the value of public highways. The first sponsors of art, science, and government were the builders of roads. The ancient highway between Babylon and Memphis. The Carthaginians as road-makers. Roman roads: their construction, extent, and durability; their instrumentality in giving Rome her pre-eminence in the ancient world; their mode of construction described. Ponderous roads in China. Magnificent highways in the ancient empires of Mexico and Peru. Prescott's description of the great roads in Peru. Bad condition of the English roads in the sixteenth century. With the revival of modern civilization the improvement of the public highways has engaged the thought of public and scientific men. Advantages of good roads generally and especially as the means of a proper distribution of population. 1-11



Best possible location desirable. Permanent nature of roads. Many of the ancient roads are still travelled by the people of to-day. The law of the survival of the fittest applicable to the location of roads. The makers of a good road often build better than they know. Roads may be located in three different ways. The old Romans and the modern Latin nations locate in straight lines. The English-speaking people usually locate their roads in curved lines. Curved roads have many advantages over straight ones, as good grades are more desirable than straight roads. 12-16



Importance of drainage. Good roads impossible without proper drainage. Proper width of roads for travel. They should be wide enough to admit of foot-paths at their sides. Every road should be crowned sufficiently to run off the surface water, but not enough to make the road-bed too unlevel. The golden mean is to be sought. A macadamized road the cheapest and best for our climate and soil. Proper foundation and depth of stone covering for such a road. The Telford road sometimes the best for clayey soil. Its construction. They will be the future roads of our country. Earth-roads now generally prevail. How to make them, and how to keep them up. 17-21



Economy and public convenience require roads to be kept up the year round. Advantages of a road always in good condition. Evils of the present system of annual or semi-annual repairs. The present system described. Advantages of the continual-repair system illustrated by the great turnpike from Virginia City to Sacramento, by Baden, Germany, France, Switzerland, Great Britain, and towns in the vicinity of our great cities. This system alone will prevail when the principles of road-making become better known. 22-27



For what purposes ways may be laid out, and how they may be established. May be laid out by town or county authorities. Distinction between town ways and public highways. When the public officials refuse to lay out ways, parties interested may appeal. How damages are avoided and costs paid. 28-31



How and by whom ways are to be kept in repair. The duties and rights of the public authorities in making repairs. The boundaries of highways. The rights of travellers as to the removal of obstructions in the road. Unauthorized persons have no right to repair ways. Highways to be protected by proper railings. How wide roads should be. 32-35



Guide-posts to be erected and maintained at suitable places. Penalties attached to neglect or refusal to erect and maintain them. Town officers may establish and maintain drinking-troughs, wells, and fountains. Their duty in this respect. 36-38



Towns and cities have authority to beautify the roadsides and public squares. May plant trees and encourage their planting by adjoining owners and improvement societies. The rights of improvement societies and the penalties for interfering with their work. Shade trees and other ornamental fixtures not to be injured or destroyed. 39-41



How roads are to be used by the public and adjoining owners. Due care to be used by travellers. Masters responsible for their servants' acts. No responsibility for inevitable accidents. What is a proper rate of speed. 42-44



Rules for the meeting, passing, and conduct of teams on the road. These rules not inflexible. When they may be deviated from. Each traveller has a right to a fair share of the road. The rights of light and heavily loaded vehicles. When a traveller with team may use track of street railway. 45-49



Equestrians must give way for vehicles. "The law of the road" does not apply to them by the terms of the statutes, but they should observe it as far as practicable. Pedestrians have a right to walk on carriage-way. In cities they should walk on the sidewalks. They must use due care. Their rights on cross-walks. They are not subject to "the law of the road." They may walk out on Sunday for their health. 50-53



Carriers of passengers for hire are bound to use due diligence in providing suitable coaches, harnesses, horses, and coachmen. They must not leave their horses unhitched. If they receive passengers when their coaches are already full, they must use increased care. Passengers must pay fare in advance, if demanded. 54-56



Public ways are mainly for the use of travellers, but they may be used for other public purposes, gas, water-pipes, sewers, street railways, telephone and telegraph lines, etc. Every one may use the highway to his own advantage, but with regard to the like rights of others. What animals and vehicles are allowed upon the road. Towns and cities may regulate by by-laws the use and management of the public ways. 57-61



They own the fee in the land, and are entitled to all the profits of the freehold, the grass, the trees, fruit, etc. If the land in the way is subjected to any new servitude, like an elevated railroad or telegraph or telephone lines, they are entitled to damages. They can load and unload vehicles in connection with their business on their premises, but it must be done in such a manner as not to incommode the travelling public. They must not fill up the roadside with logs, wood, or rubbish of any kind. 62-69



Private ways may be established and discontinued in the same manner as public ways. The owner of such way must keep it in repair. The owner of the soil may use it for agricultural purposes, and keep up bars and gates. "The law of the road" applies to private ways. 70-72



Don't drink intoxicating liquors when travelling. Don't forget to look out for the engine while the bell rings. Don't take animals affected by contagious diseases on the public way. Don't go upon the road if you are afflicted with a contagious or infectious disease. Don't go out sleigh-riding without bells attached to your harness. Don't try to drive a horse on the road unless you know how to manage him. Don't ride with a careless driver. Don't use a vicious horse, or let him to be used on the road. Don't let your horses get beyond your control. Don't encroach upon or abuse the highway. Don't ride on the outside platform of a passenger coach. Don't jump off a coach when it is in motion. Don't wilfully break down, injure, remove, or destroy a milestone, mile-board, or guide-post. Don't go out of the road-way upon adjoining land. Don't suppose that everything that frightens your horse or causes an accident is a defect in the highway. Don't fail to give notice in writing if you meet with an accident on the road. Don't convey land encumbered with a right of way. Don't keep a barking dog. 73-83



Necessity of air, sunlight, and exercise. The progenitors of every vigorous race have found in forest and wilderness the sources of their strength. The Israelites, Greeks, Romans, Dutch, Anglo-Saxons. The teachings of Nature essential to the development of the human mind. Job, David, Plato, Aristotle, Christ, Wordsworth. Foot-paths tend to bring people into the open air and into communion with Nature. The by-ways of old England. Towns and cities should lay out foot-paths. 84-88



Every dweller under obligation to maintain neatness and order within and without his roadside. Unselfish exertion in this behalf pays. He who beautifies the roadside benefits mankind and himself alike. A dirty and shabby dwelling gives a traveller a mean idea of its inmates. A cosey and clean house always speaks well for its inmates. Every homestead should be adorned with trees. The beauty and utility of trees. They are inseparable from well-tilled land and beautiful scenery. Wayside shrubbery: its use and abuse; it should be allowed where green grass will not grow. 89-94



A traveller should have a hopeful and sunshiny disposition. He should be in harmony with Nature; he should have an observing eye to enjoy the latent enjoyments of the way. How the observing faculties may be cultivated. The pleasures incident to knowing how to appreciate the beautiful in Nature. The different degrees of enjoyment in the same situation. The love of Nature the sign of goodness of heart. Ruskin, Wordsworth, Christ. What an observing traveller can see to admire and enjoy on the road, grass, flowers, trees, as reminders of human beings, domestic and pastoral scenery, mountains, animal and vegetable life, sun and sunlight, latent enjoyments in himself. 95-104






The development of the means of communication between different communities, peoples, and races has ever been coexistent with the progress of civilization. Lord Macaulay declares that of all inventions, the alphabet and printing-press alone excepted, those inventions which abridge distance have done most for the civilization of our species. Every improvement of the means of locomotion benefits mankind morally and intellectually as well as materially.

"The road," Bushnell says, "is that physical sign or symbol by which you will best understand any age or people. If they have no roads, they are savages; for the road is the creation of man and a type of civilized society. If you wish to know whether society is stagnant, learning scholastic, religion a dead formality, you may learn something by going into universities and libraries, something also by the work that is doing on cathedrals and churches or in them, but quite as much by looking at the roads; for if there is any motion in society, the road, which is the symbol of motion, will indicate the fact."

As roads are the symbols of progress, so, according to the philosophy of Carlyle, they should only be used by working and progressive people, as he asserts that the public highways ought not to be occupied by people demonstrating that motion is impossible. Hence, when we trace back the history of the race to the dawn of civilization, we find that the first sponsors of art and science, commerce and manufacture, education and government, were the builders and supporters of public highways.

The two most ancient civilizations situated in the valleys of the Nile and the Euphrates were connected by a commercial and military highway leading from Babylon to Memphis, along which passed the war chariots and the armies of the great chieftains and military kings of ancient days, and over which were carried the gems, the gold, the spices, the ivories, the textile fabrics, and all the curious and unrivalled productions of the luxurious Orient. On the line of this roadway arose Nineveh, Palmyra, Damascus, Tyre, Antioch, and other great commercial cities.

On the southern shores of the Mediterranean the Carthaginians built up and consolidated an empire so prominent in military and naval achievements and in the arts and industries of civilized life, that for four hundred years it was able to hold its own against the preponderance of Greece and Rome; and as might have been expected, they were systematic and scientific road-makers from whom the Romans learned the art of road-building.

The Romans were apt scholars, and possessed a wonderful capacity not only to utilize prior inventions but also to develop them. They were beyond question the most successful and masterful road-builders in the ancient world; and the perfection of their highways was one of the most potent causes of their superiority in progress and civilization. When they conquered a province they not only annexed it politically, by imposing on its people their laws and system of government, but they annexed it socially and commercially, by the construction of good roads from its chief places to one or more of the great roadways which brought them in easy and direct communication with the metropolis of the Roman world. And when their territory reached from the remote east to the farthest west, and a hundred millions of people acknowledged their military and political supremacy, their capital city was in the centre of such a network of highways that it was then a common saying, "All roads lead to Rome." From the forum of Rome a broad and magnificent highway ran out towards every province of the empire. It was terraced up with sand, gravel, and cement, and covered with stones and granite, and followed in a direct line without regard to the configuration of the country, passing over or under mountains and across streams and lakes, on arches of solid masonry. The military roads were under the pretors, and were called pretorian roads; and the public roads for travel and commercial traffic were under the consuls, and were called consular roads. These roads were kept entirely distinct; the pretorian roads were used for the marching of armies and the transportation of military supplies, and the consular roads were used for traffic and general travel. They were frequently laid out alongside of each other from place to place, very much as railroads and highways are now found side by side. The consular roads were generally twelve feet wide in the travelled pathway, with a raised footway on the side; but sometimes the footway was in the middle of the road, with a carriage-way on each side of it. The military roads were generally sixty feet wide, with an elevated centre, twenty feet wide, and slopes upon either side, also twenty feet wide. Stirrups were not then invented, and mounting stones or blocks were necessary accommodations; and hence the lines of the roads were studded with mounting-blocks and also with milestones. Some of these roads could be travelled to the north and eastward two thousand miles; and they were kept in such good repair that a traveller thereon, by using relays of horses, which were kept on the road, could easily make a hundred miles a day. Far as the eye could see stretched those symbols of her all-conquering and all-attaining influence, which made the most distant provinces a part of her dominions, and connected them with her imperial capital by imperial highways.

The Romans not only had great public highways, but they possessed a complete and systematic network of cross-roads, which connected villages, and brought into communication therewith cultivated farms and prosperous homesteads. In Italy alone it is estimated that they had about fourteen thousand miles of good roads. Their laws relating to the construction and maintenance of highways were founded in reason and a just conception of the uses and objects of public ways; and they are the basis of modern highway legislation. By their law the roads were for the public use and convenience, and their emperors, consuls, and other public officials were their conservators. They were built at the public expense, under the supervision of professional engineers and surveyors, and kept in repair by the districts and provinces through which they passed.

But during the dark ages, when arts were lost, when popular learning disappeared or found shelter only in cloisters and convents, when commercial intercourse between nations vanished, and when civilization itself lay fallen and inert, these magnificent Roman roads were unused and left to the destructive agencies of time and the elements of Nature. Rains and floods washed away and inundated their embankments; forests and rank vegetation overgrew and concealed them; winds covered them with dust and heaps of sand; and little by little in the process of ages their hard surfaces and massive foundations were somewhat broken and caused to partially decay. That their remains still exist in every part of the world which ever bore up the Roman legions is conclusive evidence that they were built by master workmen who realized that they were responsible to posterity and to the eternal powers.

"In the elder days of Art Builders wrought with greatest care Each minute and unseen part; For the gods see everywhere."

In China, at one time, labor was so abundant that it was kept employed in constructing great walls and ponderous roads. The road-bed was raised several feet above the level of the ground by an accumulation of great stones, and then covered with huge granite blocks. It was found that in time the wheels of vehicles wore deep ruts in the stones, while the travelled part of the road became so smooth that it was almost impossible for animals to stand thereon.

In the ancient empires of Mexico and Peru, where there were no beasts fit for draught or for riding, magnificent roads were constructed for the treble purpose of facilitating the march of armies, accommodating the public traffic, and ministering to the convenience and luxury of the lordly rulers. In Peru two of these roads were from fifteen hundred to two thousand miles long, extending from Quito to Chili,—one by the borders of the ocean, and the other over the grand plateau by the mountains. Prescott says: "The road over the plateau was conducted over pathless sierras buried in snow; galleries were cut for leagues through the living rock; rivers were crossed by means of bridges that swung suspended in the air; precipices were scaled by stairways hewn out of the native bed; ravines of hideous depth were filled up with solid masonry; in short, all the difficulties that beset a wild and mountainous region, and which might appall the most courageous engineer of modern times, were encountered and successfully overcome. Stone pillars in the manner of European milestones were erected at stated intervals of somewhat more than a league all along the route. Its breadth scarcely exceeded twenty feet. It was built of heavy flags of freestone, and in some parts, at least, covered with a bituminous cement, which time has made harder than the stone itself. In some places where the ravines had been filled up with masonry, the mountain torrents, wearing on it for ages, have gradually eaten a way through the base, and left the superincumbent mass—such is the cohesion of the materials—still spanning the valley like an arch.

"Another great road of the Incas lay through the level country between the Andes and the ocean. It was constructed in a different manner, as demanded by the nature of the ground, which was for the most part low, and much of it sandy. The causeway was raised on a high embankment of earth, and defended on either side by a parapet or wall of clay; and trees and odoriferous shrubs were planted along the margin, regaling the sense of the traveller with their perfume, and refreshing him by their shades, so grateful under the burning sky of the tropics.

"The care of the great roads was committed to the districts through which they passed, and a large number of hands was constantly employed to keep them in repair. This was the more easily done in a country where the mode of travelling was altogether on foot; though the roads are said to have been so nicely constructed that a carriage might have rolled over them as securely as on any of the great roads of Europe. Still, in a region where the elements of fire and water are both actively at work in the business of destruction, they must without constant supervision have gradually gone to decay. Such has been their fate under the Spanish conquerors, who took no care to enforce the admirable system for their preservation adopted by the Incas. Yet the broken portions that still survive here and there, like the fragments of the great Roman roads scattered over Europe, bear evidence of their primitive grandeur, and have drawn forth eulogium from the discriminating traveller; for Humboldt, usually not profuse in his panegyrics, says, 'The roads of the Incas were among the most useful and stupendous works ever executed by man.'"

With the revival of human thought and civilization after the Middle Ages, the improvement of the roads engaged the attention of public and scientific men, and became once more an object of government; but for a long time the rulers who concerned themselves about roads thought more about repressing the crimes of violence and extortion thereon than they did about improving their condition for travel. The first act of the English Parliament relative to the improvement of roads in the kingdom was in 1523; yet in 1685 most of the roads in England were in a deplorable condition.

Macaulay says that on the best highways at that time the ruts were deep, the descents precipitous, and the way often such that it was hardly possible to distinguish it in the dark from the unenclosed heath and fen which lay on both sides. It was only in fine weather that the whole breadth of the road was available for wheeled vehicles; often the mud lay deep on the right and on the left, and only a narrow track of firm ground rose above the quagmire. It happened almost every day that coaches stuck fast until a team of cattle could be procured from some neighboring farm to tug them out of the slough. But to the honor of England, this condition of her roads was not allowed to continue very long. Although her progress in trade and prosperity has been marvellously rapid, yet such progress can be measured by the improvement of her roads, which are now unsurpassed anywhere in the world.

Beyond question, internal communications are of vital importance to every nation, and good roads are a prime necessity to every town or city. A good road is always a source of comfort and pleasure to every traveller. It is also a source of great saving each year in the wear and tear of horse-flesh, vehicles, and harnesses. Good roads to market and neighbors increase the price of farm produce, and bring people into business relations and good fellowship, and thereby enhance in value every homestead situated in their neighborhood. They cause a proper distribution of population between town and country. For many years in this country there has been a movement of population from the rural districts into the cities and manufacturing villages. Many ancestral homesteads have been deserted for promising "fresh woods and pastures new" in the commercial world. This centralization of population is evidently a violation of economic laws, and when carried too far results in business depression, in the multiplication of tramps, and in the origination and development of industrial and social troubles. The remedy for this state of affairs is found in the readjustment and proper distribution of population between town and country. When men, sick of waiting on waning business prospects, turn to the soil as their only refuge from non-employment and surplus productions of factories, and reoccupy and rehabilitate deserted or run-down farms, then business revives, and the wheels of industry and enterprise revolve steadily and with increased velocity at each revolution. Bad roads have a tendency to make the country disagreeable as a dwelling-place, and a town which is noted for its bad roads is shunned by people in search of rural homes. On the other hand, good roads have a tendency to make the country a desirable dwelling-place, and a town which is noted for its good roads becomes the abode of people of taste, wealth, and intelligence. Hence it behooves every town to make itself a desirable place of residence; for many people are always puzzling themselves over the problem of where and how to live, and those towns which have their floors swept and garnished and their lamps trimmed and burning ready to receive the bride and bridegroom, will be most likely to attract within their borders the seekers of farm life and rural homes. We now live in the city and go to the country; but we should live in the country and go to the city. This is "a consummation devoutly to be wished;" but it can never be brought about until good roads connect the cities and villages with the green fields and beautiful scenery of the country. All money and labor expended upon them result immediately in a convenience and benefit to the whole community. Every one should deem it an honor to be able to do anything to improve and beautify the highways of his town. The Lacedemonian kings were ex officio highway surveyors, and among the Thebans the most illustrious citizens were proud to hold that office; and a few years ago Horatio Seymour, of New York, said that his only remaining ambition for public life was to be regarded as the best path-master in Oneida County.



When a new road is laid out it is important that it should be located in the best attainable place, considering the natural formation of the surrounding country; for when a highway is once established it is impossible to say how long the tide of humanity and commercial traffic will seek passage over it. While the ordinary processes of Nature—rain, thaw, and frost—are ever at work lowering the hills and mountains and filling up the valleys and lowlands, the public highways of a country remain in the same relative positions from age to age.

The great commercial and military highway which in the early dawn of Roman history led from the banks of the placid Euphrates to the banks of the many-mouthed Nile—over which Abraham once wended his weary steps on his way to Canaan, over which the hosts of Xerxes and the brave phalanxes of Alexander the Great once passed in all the pride and glory of war, over which the wise men of the East probably journeyed in search of him who was born King of the Jews, over which Mary fled with Christ in her flight into Egypt, and along which the early Christians travelled as they went forth to preach the fatherhood of God and the brotherhood of men—is to-day the highway over which is carried on the overland intercourse between the Mediterranean and the Persian Gulf.

Many of the present roads in Italy and the neighboring countries are identical with the roads over which Caesar, Cicero, and other Romans travelled in the olden days; and the modern British roads are the same, in many cases, as those used by the ancient Britons before the Anglo-Saxon conquest.

The law of the survival of the fittest is applicable to the location of roads, and any well-located road is liable to be used as a public way during the occupancy of the earth by the human race; and if it is not made famous by the passage of illustrious persons or sanctified by the footsteps of saints, yet it is liable to be travelled through coming ages by "mute inglorious Miltons" and by "care-encumbered men." It sometimes happens that men and women, in doing faithfully and well the nearest duty, perform work which turns out better than they expect.

"The hand that rounded Peter's dome, And groined the aisles of Christian Rome, Wrought in a sad sincerity;

* * * *

He builded better than he knew."

The originators of many great reforms in law and religion, in working to establish principles applicable and needful to local issues, have thereby, unconsciously to themselves, established principles which have proved beneficial and applicable to the whole human race. In the stress of trying times we have discovered in the constitution of our country latent powers which its framers never dreamed were there. Thus it is with the humble occupation of road-building. A road constructed for the convenience of some primitive community or to gratify the caprice of some rich man or lordly ruler becomes often in after years an Appian Way for public travel and commercial intercourse.

A road may be located in one of three ways. It may be laid out in a straight line by crossing lowlands in the mud and going over hills at steep grades. The ancient Britons, like the early settlers in this country, established their homesteads and villages on commanding situations, and ran their roads and bridle-paths in direct courses by their habitations. The Romans, possessors of great wealth and abundant slave-labor, built their military and public roads in direct lines from place to place, regardless of expense. In this way they shortened distances somewhat, but their roads must have been constructed at enormous expense in money and labor. Their roads were marvels of engineering skill and workmanship, which even now, after the lapse of eighteen centuries, impress every thoughtful observer with the idea that he is in the presence of the work of the immortals. They threw arched bridges of solid masonry over rivers and across ravines; they cut tunnels through mountains, and sometimes carried their roads underground for the sole purpose of shelter from the sun; they levelled heights and made deep cuts through hills; and when they came to a marsh they built a causeway high enough and strong enough to make it safe and dry at all seasons of the year. This mode of location is still followed in the Latin countries of Italy, France, and Spain, where many of the roads are identical with the old Roman roads.

The other mode of locating a highway is to seek the best attainable grade the country will permit of by winding through valleys and around and across hills. There is obviously one advantage to a perfectly straight road between two places: it is the nearest route. But this is about the only advantage a straight road has over a curved one. In a hilly country a straight road is frequently no shorter than a curved one, because the distance around a hill is generally no greater than over it, as the length of a pail-handle is the same whether it is vertical or in a horizontal position. In an uneven country a straight road with anything like the same grade as the curved road can only be constructed at enormous and unnecessary expense and labor. Even in a level country a road curved sufficiently to give variety of view and to conform to Hogarth's "line of beauty" is preferable to a perfectly straight road, which is always tedious to the traveller.

"The road the human being travels, That on which blessing comes and goes, doth follow The river's course, the valley's playful windings, Curves round the corn-field and the hill of vines."

Moreover, we are told by competent engineers that the difference in length between a straight and a slightly curved road is very small. Thus, if a road between two places ten miles apart was made to curve so that the eye could nowhere see farther than a quarter of a mile of it at once, its length would exceed that of a perfectly straight road between the same points by only about one hundred and fifty yards.

But, in any event, in road-making mere straightness should always yield to a level grade, even if thereby the distance is greatly increased; for on a good grade a horse can draw rapidly and easily a load which it would be impossible for him to draw on a steep grade. It is an accepted maxim by road-engineers that the horizontal length of a road may be advantageously increased, to avoid an ascent, by at least twenty times the perpendicular height which is to be thus saved; that is, to escape a hill a hundred feet high, it would be proper for the road to make such a circuit as would increase its length to two thousand feet.

Hence it is apparent that the ordinary road in a hilly and uneven country should follow the streams as far as possible, as Nature has located them in the places best adapted for highways; and when hills are found on the line of a road they should be surmounted by passing around and across them at the easiest grades possible rather than over them at steep grades.



Suitable drainage is the first requisite of a good road, as with our climate and soil it is impossible to have a road in a satisfactory condition at all seasons of the year unless the same is well drained. In building a new road provisions should be made to get rid of all surface water, and in wet land of the water in the soil, by ditches and drains sufficient to dispose of it in a thorough manner; and in repairing an old road it frequently happens that its condition can be greatly improved and sometimes perfected by simply providing proper drainage for it. It is not sufficient to have ditches on each side of the road; for if the water stands in them it is liable to make the road muddy and to weaken its substratum. The ditches themselves should be thoroughly drained, and all the water which accumulates in them should be carried into the natural watercourses of the country, or at any rate beyond the limits of the highway.

Every carriage-road ought to be wide enough at nearly all points to allow two vehicles to pass each other in safety. Whether it should be wider than that depends upon its location and its importance as a public thoroughfare. Any unnecessary width should be avoided, except on pleasure and showy boulevards, because thereby land is wasted, and labor and cost in construction and repair are increased. All important highways should be wide enough to admit of footpaths five or six feet wide on each side, and of a macadamized or travelled way commensurate to the public traffic thereon.

If a road is to be made wider than two vehicles require, it should be made wide enough to accommodate one or more vehicles; for any intermediate width causes unequal and excessive wear, and therefore is false economy.

The road-bed should generally be raised above the level of the surrounding land, in order that it may be as free as possible from water; and it should "crown" sufficiently to allow all the surface water, to find its way quickly into the side ditches. If it is not crowned enough, it soon becomes hollow, and therefore either muddy or dusty, and in times of heavy rains or thaws the water stands or flows in the middle of the road. If it is crowned too much, the drivers of vehicles will seek the middle of the road in order to keep their vehicles in level positions, and consequently the excessive travel in one part of the road soon wears it into ruts in which water accumulates, and carriages in meeting are forced to travel on a side hill, which causes unnecessary wear to the road by sliding down towards the ditches. This sliding tendency greatly augments the labor of the horses and the wear and tear of the carriages. Evidently, then, the wise course to pursue in the matter of crowning the road is to hit the golden mean. Much of success in life depends upon striking the golden mean, for human experience teaches that those who follow in this pathway are apt to find themselves among the happy and the successful. The advice which the wise old Horace made a sage seaman give two thousand years ago is good for road-makers of to-day,—

"Licinius, trust a seaman's lore: Steer not too boldly to the deep; Nor dreading storms by treacherous shore Too closely creep."

It ought therefore to be an accepted maxim in road-making that the road-bed should be so constructed as to induce vehicles to travel it equally in every part.

For our climate and soil, no doubt, a macadamized road is the cheapest and best for general travel. This is made by covering the bottom of the road-bed with stones broken into angular pieces to a depth of from four to twelve inches. The bottom of the road-bed should be solid earth, and crowned sufficiently to carry off all water that may reach it. The depth of the stone coating may properly vary from four to twelve inches, as required by the nature of the soil, the climate, and the travel on it; and the size of the broken stones may also be varied to meet the requirements of the road. If there is to be heavy travel on the road, the stone coating should be thicker than on a road over which only lightly loaded teams are expected to pass; and in the former case the broken stones should be larger than in the latter case. In any event, the top of the stone coating should be composed of stones broken into small fragments. A coating, from four to six inches in depth, of broken stones from one to two inches in diameter is ordinarily sufficient to make a hard, dry, and beautiful country-road, if kept up at all seasons of the year. Flat or round stones should never be used, because they will not unite and consolidate into a mass, as small angular stones will do. When travel is first admitted upon the stone coating, the ruts should be filled up as soon as formed; or what is better, a heavy roller should be used until the stones have become well consolidated.

Sometimes in wet or clayey soil it is well to put at the bottom of the stone coating a layer of large stones, set on their broadest edges and lengthwise across the road in the form of a pavement. This is called a Telford road, and has advantages over the McAdam road in a soil retentive of moisture, as the layer of large stones operates as an under drain to the stone coating above it.

It is undoubtedly true that the McAdam or Telford road is the best road for all practical purposes in this country, and will be the country road of the future; yet it is also true that the most of our highways are mere earth-roads, and will probably remain such for many years, and it is therefore desirable that they should be constructed as well as they can be made. It is an admitted canon of the road-making art, that a road ought to be so hard and smooth that wheels will roll easily over it and not sink into it, so dry and compact that rain will not affect it beyond making it dirty, and its component parts so firmly moulded together that the sun cannot convert them into deep dust. Therefore the travelled part of an earth-road should not be composed of loam fertile enough for a corn-field, nor of sand deep enough for a beach. If the road runs through sandy land, it can be greatly and cheaply improved by covering it with a few inches of clayish soil; and if it runs through clayey land, a similar application of sand will be beneficial. A gravelly soil is usually the best material for an earth-road, and when practicable every such road should be covered with a coating of it. The larger gravel, however, should never be placed at the bottom and the smaller at the top, as the frost and the vehicles will cause the large gravel to rise and the small to descend, like the materials in a shaken sieve, and the road will never become smooth and hard.



After a road is located and constructed, economy as well as public convenience demands that it be kept in good condition the year round. If a road is allowed to go for several months at a time without repairs, ruts and holes are likely to form on its surface, and frequently the middle becomes lower than the sides. Then, in order to put it in good condition again, a great deal of work and expense are necessary, whereas if every break is repaired immediately, much less labor and expense are required to keep up the road for the same length of time, besides the increased advantage and convenience of a good road from day to day.

No doubt our roads could be kept in better condition than at present without any additional expense, by the application of good sense and business principles in their management. The present system in nearly all our country towns consists in dividing up the roads into districts, and appointing a highway surveyor for each district, with a stated allowance of money to expend on repairs; and sometimes the tax-payer residing in the district has a right to work out his road tax. This surveyor is usually a farmer, who is very busy during planting-time in the spring, and during the haying and harvesting seasons; and consequently he works upon the roads between the planting and the haying seasons, or in the autumn after he has finished the fall work upon his farm. It sometimes happens that he works out all the money allowed him in early summer, and then nothing more is done for a year.

If a road is only to be repaired once a year, the work ought to be done in the spring, when the soil is moist and will pack together hard, and not in the summer, when it is dry and turns easily to dust, nor in the late autumn, when the fall rains make it muddy. The surveyor generally makes the repairs by ploughing up the road-bed and smoothing it off a little, or else by ploughing up the dust, turf, and stones alongside the road-bed, and scraping the same upon it. After this is done he goes about his farm work.

The stones in the road soon begin to work up to the surface, and remain there like so many footballs for every horse to kick as he passes over them. A horse-path naturally forms in the centre of the road, and wheel-ruts upon either side, which make excellent channels for the water to run in during every rain-storm. At first the water finds its way over the water-bars in small quantities; but the channels increase in depth with every shower, and soon during every hard rain there are from one to three streams of water running over the road-bed from the top to the bottom of nearly every hill, and as a consequence the road is washed all to pieces. The road then generally remains in this condition until the next fall, and sometimes until the next spring. When a road is repaired in this way, it follows as a matter of course that it is in a bad condition all the year round. Just after repairs the road is wretched, for it is then in better condition to be planted than to be travelled over; when trodden down a little, the wash of the rains and the loose stones make it bad again; it then grows worse and worse until another general repair makes it wretched again, and so on ad infinitum. The only way to remedy this state of affairs is to change the system.

There should be only one highway surveyor for the whole town, with authority to supply such men and teams as may be necessary to keep the roads in a good state of repair. Let them not only work in the early summer and fall, but at all times when there is anything which needs to be done to the roads. A few shovels of dirt and a little labor in the nick of time will do more towards keeping a road in good condition than whole days of ploughing and scraping once or twice a year only. Every good housewife knows that there is a world of truth in the old maxim, "A stitch in time saves nine." The managers of all our well-conducted railroads understand this. They have a gang of men pass often over each section of the roads.

What would be said of a mill-owner who should let his milldam wash away once or twice each year, and then rebuild it instead of keeping it in constant repair? The proprietors of the great turnpike road from Sacramento to Virginia City in California, which runs mainly over mountains a distance of one hundred and fifty miles, and has an annual traffic of seven or eight thousand heavy teams, have found by careful experiment that the cheapest way to keep that great road in good condition is to have every portion of it looked after every day, and during dry weather every rod of it is sprinkled with water. This continual-repair system was adopted in Baden, Germany, 1845. It was soon found that it was less expensive and more satisfactory than the old system of annual repairs. Other European countries soon found it to their advantage to follow Baden's example in this respect; and now the new system is in universal use in all the civilized nations of Europe. As a consequence the roads in those countries as a general thing are in splendid condition throughout the year. They are on an even grade, and as smooth as a racing-track in this country. The poorest roads in France, Germany, Switzerland, or Great Britain are as good as the best of our own. They are nearly all macadamized, and are kept in continuous repair by laborers and competent engineers and surveyors, who give their sole labor and attention to the roads as a business throughout the year.

But it is not necessary to go to Europe to prove the superiority of the new system over the old. Many towns in this country, especially those situated in the vicinity of the large cities, have adopted the new system, and find by experiment that it is better than the old. An intelligent citizen and town official of Chelmsford, Mass., Mr. Henry S. Perham, thus describes the operation of the old and the new system in that town: "Until 1877 the old highway district system, common in the New England country towns, was in vogue here. Eleven highway surveyors were chosen annually in town-meeting, who had charge of the roads in their respective districts; and although the town appropriated money liberally for highway repairs, the roads seemed to be continually growing worse, owing to the superficial manner in which the repairs were made. In 1877 the town adopted an entirely different plan for doing the work. The plan was to choose one surveyor for the whole town, who was to have charge of all the roads, and the town to purchase suitable teams and implements to be kept at the town farm. This is now the ninth year in which this system has been in practice, and the result of the change has been most satisfactory. The advantages are that the surveyor is chosen for his especial fitness for the work. The men under him are mostly employed by the month and boarded at the town farm, where the teams are also kept. A force now costing the town ten dollars per day will accomplish more and better work in one week than would be ordinarily accomplished by a surveyor under the old system in a season. And the reason is obvious. The men and teams are accustomed to the work; the best implements and machinery are employed, road-scrapers doing the work where the nature of the soil will permit; and what is still more important, the work is directed by the surveyor to the best advantage. In the winter season the teams break out the roads after heavy snows, and in fair weather cart gravel on to the roads as in summer. And although we have an extraordinary length of road to support,—namely, two hundred and seventy-five miles, being more by twenty-five miles than any other town in the State,—there has been a marked and continual improvement in their condition.

"When this plan was first presented to the attention of the town, it met with sharp opposition, and passed by only a small majority; but the favor with which it is now regarded may be judged by the fact that since its adoption it has met with almost universal approval, and we should now as soon think of going back to the school-district system or to support the churches by taxation as of returning to the old method of repairing our roads."

This method is undoubtedly better than the old district system; but the system of the future will not include a road-scraper except for the building of new roads. Any system is radically defective which scrapes the dust and worn-out soil of the gutters or the turf and loam of the roadside upon the road-bed. Perhaps this kind of repairing is better than none in many localities; but as civilization advances and the true principles of road-making become better known, after the foundation of a road-bed has been properly established, nothing but good road material will ever be put upon it, and this will be put there from time to time as needed to keep up a continual good condition of the road.



New roads are not often required now to reach and develop new tracts of land, except in large towns and cities; but they are frequently needed to shorten distances and to improve grades. Consequently the laws relative to the laying out, maintenance, and use of highways are of personal interest to every citizen, and many are also interested in the laws relating to private ways.

The public have a right to lay out ways for purposes of business, amusement, or recreation, as to markets, to public parks or commons, to places of historic interest or beautiful natural scenery.[1] And such ways may be established by prescription, by dedication, or by the acts of the proper public authorities. Twenty years' uninterrupted use by the public will make a prescriptive highway. Many of the old roads in our towns and cities have become public thoroughfares by prescriptive use, which began in colonial days, and perhaps then followed Indian trails, or were first used as bridle-paths.

[1] 11 Allen, 530.

When the owner in fee of land gives to the public a right of passage and repassage over it, and his gift is accepted by the public, the land thus travelled over becomes a way by dedication. The dedication may be made by the writing, the declaration, or by the acts of the owner. It must, however, clearly appear that he intended and has made the dedication; and when it has been accepted by the public it is irrevocable. Formerly it could be accepted by the public by use, or by some act or circumstance showing the town's assent and acquiescence in such dedication; but now no city or town is chargeable for such dedicated way until it has been laid out and established in the manner provided by the statutes.[2] It was formerly thought that this act applied to prescriptive ways as well as to dedicated ways; but it is now settled that it applies only to ways by dedication, and ways by prescription are not affected by it.[3]

[2] Pub. St. c. 49, Sec. 94.

[3] 128 Mass. 63.

The proper town or city authorities have jurisdiction to lay out or alter ways within the limits of their respective cities or towns, and to order specific repairs thereon. The county commissioners have also jurisdiction to lay out public ways, the termini of which are exclusively within the same town; and they are also clothed with authority to lay them out from town to town. Hence roads may be either town ways or public highways. When the proceedings for their location originate with the town or city officials, they are town ways; and when the proceedings originate with the county commissioners, they are public highways.[4] Suppose a new road is wanted, or an alteration in an old one is desired, within the limits of a town, a petition therefor may be presented either to the town authorities or to the county commissioners. If the proposed road is not situated entirely within the limits of one town or city, then the commissioners alone have jurisdiction in the premises. When the selectmen or road commissioners of a town decide to lay out a new road, or to alter an old one, their doings must be reported and allowed at some public meeting of the inhabitants regularly warned and notified therefor; but while the inhabitants are vested with the right of approval, they have no right to vote that the selectmen or road commissioners shall lay out a particular way, as it is the intention of the statute that these officials shall exercise their own discretion upon the subject.[5] If the town authorities unreasonably refuse or neglect to lay out a way, or if the town unreasonably refuses or delays to approve and allow such way as laid out or altered by its officials, then the parties aggrieved thereby may, at any time within one year, apply to the county commissioners, who have authority to cause such way to be laid out or altered. But when a petition for a public way is presented in the first instance to the county commissioners, or when the matter is brought before them by way of appeal, their decision on the question of the public necessity and convenience of such way is final, and from it there is no appeal. If damage is sustained by any person in his property by the laying out, alteration, or discontinuance of a public way, he is entitled to receive just and adequate damages therefor, to be assessed, in the first place, by the town or city authorities or by the county commissioners, and, finally, by a jury, in case one is demanded by him. He is entitled to a reasonable time to take off any timber, wood or trees, which may be upon the land to be taken; but if he does not remove the same within the time allowed, he is deemed to have relinquished his right thereto. In estimating the damage to the land-owner caused by the laying out or the alteration of a public way over his land, neither the city nor town authorities nor a jury are confined to the value of the land taken. He is also entitled to the amount of the damage done to his remaining land by such laying out or alteration.[6] But in such estimation of damages any direct or peculiar benefit or increase of value accruing to his adjoining land is to be allowed as a betterment, by way of set-off; but not any general benefit or increase of value received by him in common with other land in the neighborhood.[7]

[4] 7 Cush. 394.

[5] 5 Pick. 492.

[6] 14 Gray, 214.

[7] 4 Cush. 291.

The cost of making and altering ways, including damages caused thereby, is to be paid by the city or town wherein the same are located, provided the proceedings originate with the town or city authorities; but when the proceedings originate with the county commissioners, they divide the cost between the towns and the county in such manner as they think to be just and reasonable.[8]

[8] 6 Met. 329.



After highways, town-ways, streets, causeways, and bridges have been established, they are to be kept in such repair as to be reasonably safe and convenient for travellers at all seasons of the year at the expense of the town or city in which they are situated.

It is the duty of each town to grant and vote such sums of money as are necessary for repairing the public ways within its borders; and if it fails to do so, the highway surveyors, in their respective districts, may employ persons, as directed in the statutes, to repair the roads, and the persons so employed may collect pay for their labor of the town. In order to make such repairs, city and town authorities may select and lay out land within their respective limits as gravel and clay pits from which may be taken earth and gravel necessary for the construction and repairs of streets and ways.[9] And they may turn the surface drainage of the roads upon the land of the adjoining owners without liability.[10] But no highway surveyor has a right, without the written approbation of the selectmen, to cause a watercourse, occasioned by the wash of the road, to be so conveyed by the roadside as to incommode a house, a store, shop, or other building, or to obstruct a person in the prosecution of his business.[11] Properly authorized city or town officers may trim or lop off trees and bushes standing in the public ways, or cut down and remove such trees; and may cause to be dug up and removed whatever obstructs such ways, or endangers, hinders, or incommodes persons travelling therein.[12] Even the boundaries of public ways are so well guarded that when they are ascertainable no length of time less than forty years justifies the continuance of a fence or building within their limits; but the same may, upon the presentment of a grand jury, be removed as a nuisance.[13]

[9] Pub. St. c. 49, Sec. 99.

[10] 13 Gray, 601.

[11] Pub. St. c. 52, Sec. 12.

[12] St. 1885, c. 123.

[13] Pub. St. c. 54.

It is so important that the public ways be kept free for travel, that any person may take down and remove gates, rails, bars, or fences upon or across highways, unless the same have been there placed for the purpose of preventing the spreading of a disease dangerous to the public health, or have been erected or continued by the license of the selectmen or county commissioners.[14] A highway surveyor acting within the scope of his authority may dig up and remove the soil within the limits of the public ways for the purpose of repairing the same, and may carry it from one part of the town to another;[15] and he has a right to deposit the soil thus removed on his own land, if that is the best way of clearing the road of useless material.[16]

[14] Pub. St. c. 54.

[15] 125 Mass. 216.

[16] 128 Mass. 546.

Though the law is imperative that the roads must be kept in good condition, and to this end gives municipal corporations great powers, yet let no one who is not a highway surveyor or in his employ imagine that he can repair a road not on his own land with impunity; for it has been decided that if an unauthorized person digs up the soil on the roadside by another person's land for the purpose of repairing the road, he is a trespasser and liable for damages, although he does only what a highway surveyor might properly do.[17] It is also the duty of cities and towns to guard with sufficient and suitable railings every road which passes over a bank, bridge, or along a precipice, excavation, or deep water; and it makes no difference whether these dangerous places are within or without the limits of the road, if they are so imminent to the line of public travel as to expose travellers to unusual hazard.[18] But towns are not obliged to put up railings merely to prevent travellers from straying out of the highway, where there is no unsafe place immediately contiguous to the way.[19]

[17] 8 Allen, 473.

[18] 13 Allen, 429.

[19] 122 Mass. 389.

The roads are for the use of travellers, and a city or town is not bound to keep up railings strong enough for idlers to lounge against or children to play upon.[20]

[20] 3 Allen, 374; 8 Allen, 237.

The travelled parts of all roads ought to be wide enough to allow of the ordinary shyings and frights of horses with safety, for shying is one of the natural habits of the animal;[21] although it seems that switching his tail over the reins is not a natural habit of the animal, as it has been decided that if a horse throws his tail over the reins and thereby a defect in the road is run against, no damages can be recovered.[22]

[21] 100 Mass. 49.

[22] 98 Mass. 578.



The statutes undertake to provide for the erection and maintenance of guide-posts at suitable places on the public ways; but a person has to travel but little in many of the towns of the State to come to the conclusion that the law is either deficient in construction or a dead letter in execution. The law makes it incumbent upon the selectmen or road commissioners of each town to submit to the inhabitants, at every annual meeting, a report of all the places in which guide-posts are erected and maintained within the town, and of all places at which, in their opinion, they ought to be erected and maintained. For each neglect or refusal to make such report they shall severally forfeit ten dollars. After the report is made the town shall determine the several places at which guide-posts shall be erected and maintained, which shall be recorded in the town records. A town which neglects or refuses to determine such places, and to cause a record thereof to be made, shall forfeit five dollars for every month during which it neglects or refuses to do so.

At each of the places determined by the town there shall be erected, unless the town at the annual meeting agrees upon some suitable substitute therefor, a substantial post of not less than eight feet in height, near the upper end of which shall be placed a board or boards, with plain inscription thereon, directing travellers to the next town or towns and informing them of the distance thereto.

Every town which neglects or refuses to erect and maintain such guide-posts, or some suitable substitutes therefor, shall forfeit annually five dollars for every guide-post which it neglects or refuses to maintain.[23] These forfeitures can be recovered either by indictment or by an action of tort for the benefit of the county wherein the acts of negligence or refusal occur; and any interested or public-spirited person can make complaint of such negligence or refusal to the superior court, or to any trial justice, police, district or municipal court, having jurisdiction of the matter.[24]

[23] Pub. St. c. 53, Secs. 1-5.

[24] Pub. St. c. 217; 108 Mass. 140.

The selectmen may establish and maintain such drinking-troughs, wells, and fountains within the public highways, squares, and commons of their respective towns, as in their judgment the public necessity and convenience may require, and the towns may vote money to defray the expenses thereof.[25] But the vote of a town instructing the selectmen to establish a watering-trough at a particular place would be irregular and void, because towns in their corporate capacity have not been given the right by statute to construct drinking-troughs in the public highways. And towns would not be liable for the acts of the selectmen performed in pursuance of this statute, because the law makes the selectmen a board of public officers, representing the general public, and not the agents of their respective towns. However, if the inhabitants of a town should construct a drinking trough or fountain of such hideous shape, and paint it with such brilliant color, that it would frighten an ordinarily gentle and well-broken horse, by reason of which a traveller should be brought in contact with a defect in the way or on the side of the way, and thus injured, the town might be held liable to pay damages.[26]

[25] Pub. St. c. 27, Sec. 50.

[26] 125 Mass. 526.

It is my purpose to state what the law is, and not what it ought to be; but I will venture the suggestion that it would not be an unreasonable hardship on towns to require them to establish and maintain suitable watering-troughs at suitable places, and it would be a merciful kindness to many horses which now frequently have to travel long distances over dusty roads in summer heat without a chance to get a swallow of water from a public drinking-trough.



The law of the Commonwealth not only requires the public ways to be kept safe and convenient, but of late years statutes have been passed allowing owners of land, improvement societies, cities and towns, to do something to beautify the roadsides and public squares of any city or town. A city or town may grant or vote a sum not exceeding fifty cents for each of its ratable polls in the preceding year, to be expended in planting, or encouraging the planting by the owners of adjoining real estate, of shade trees upon the public squares or highways.[27] Such trees may be planted wherever it will not interfere with the public travel or with private rights, and they shall be deemed and taken to be the private property of the person so planting them or upon whose premises they stand.[28]

[27] St. 1885, c. 123.

[28] Pub. St. c. 54, Sec. 6.

Improvement societies, properly organized for the purpose of improving and ornamenting the streets and public squares of any city or town by planting and cultivating ornamental trees therein, may be authorized by any town to use, take care of, and control the public grounds or open spaces in any of its public ways, not needed for public travel. They may grade, drain, curb, set out shade or ornamental trees, lay out flower plots, and otherwise improve the same; and may protect their work by suitable fences or railings, subject to such directions as may be given by the selectmen or road commissioners. And any person who wantonly, maliciously, or mischievously drives cattle, horses, or other animals, or drives teams, carriages, or other vehicles, on or across such grounds or open spaces, or removes or destroys any fence or railing on the same, or plays ball or other games thereon, or otherwise interferes with or damages the work of such corporation, is subject to a fine not exceeding twenty dollars for each offence, for the benefit of the society.[29]

[29] St. 1885, c. 157.

It is also a legal offence for any one wantonly to injure or deface a shade tree, shrub, rose, or other plant or fixture of ornament or utility in a street, road, square, court, park, or public garden, or carelessly to suffer a horse or other beast driven by or for him, or a beast belonging to him and lawfully on the highway, to break down or injure a tree, not his own, standing for use or ornament on said highway.[30] And no one, even if he be the owner of the land, has the right to cut down or remove an ornamental or shade tree standing in a public way, without first giving notice of his intention to the municipal authorities, who are entitled to ten days to decide whether the tree can be removed or not. And whoever cuts down or removes or injures such tree in violation of the law shall forfeit not less than five nor more than one hundred dollars for the benefit of the city or town wherein the same stands.[31]

[30] Pub. St. c. 54, Secs. 7, 8.

[31] Pub. St. c. 54, Secs. 10, 11.



After the roads are ready for use and beautified by shade trees and green parks at convenient places, we are confronted with the question, How are they to be used by the public and the owners of adjoining estates? We, as a people, are not only continental and terrestrial travellers, but we are continually passing hither and thither over the public ways of this State, and consequently it is important for us to know how to travel the common roads in a legal and proper manner.

In the first place, every one who travels upon a public thoroughfare is bound to drive with due care and discretion, and to have an ordinarily gentle and well trained horse, with harness and vehicle in good roadworthy condition, as he is liable for whatever damages may be occasioned by any insufficiency in this respect.[32]

[32] 4 Gray, 178.

Another duty which every traveller is bound to observe is to drive at a moderate rate of speed. To drive a carriage or other vehicle on a public way at such a rate or in such a manner as to endanger the safety of other travellers, or the inhabitants along the road, is an indictable offence at common law, and amounts to a breach of the peace; and in case any one is injured or damaged thereby, he may look to the fast driver for his recompense. But it does not follow that a man may not drive a well-bred and high-spirited horse at a rapid gait, if he does not thereby violate any ordinance or by-law of a town or city; for it has been held that it cannot be said, as matter of law, that a man is negligent who drives a high-spirited and lively-stepping horse at the rate of ten miles an hour in a dark night.[33]

[33] 8 Allen, 522.

It then behooves every one to drive with care and caution, whether he is going fast or slow; and it also behooves him to see that his servants drive with equal care and caution, for he is responsible to third persons for the negligence of his servants, in the scope of their employment, to the same extent as if the act were his own, although the servants disobey his express orders. If you send your servant upon the road with a team, with instructions to drive carefully and to avoid coming in contact with any carriage, but instead of driving carefully he drives carelessly against a carriage, you are liable for all damages resulting from the collision; and if the servant acts wantonly or mischievously, causing thereby additional bodily or mental injury, such wantonness or mischief will enhance the damage against you.[34]

[34] 3 Cush. 300; 114 Mass. 518.

You may think this a hard law; but it is not so hard as it would be if it allowed you to hire ignorant, wilful, and incompetent servants to go upon the road and injure the lives and property of innocent people without redress save against the servants, who perchance might be financially irresponsible. It should however be stated in this connection that if your team should get away from you or your servant, without any fault on your or his part, and should run away and do great damage, by colliding with other teams, or by running over people on foot, you would not be held responsible, as in law it would be regarded as an inevitable accident. Thus, if your horse should get scared by some sudden noise or frightful object by the wayside, or through his natural viciousness of which you were ignorant, or by some means should get unhitched after you had left him securely tied, and in consequence thereof should plunge the shaft of your wagon into some other man's horse, or should knock down and injure a dozen people, you would not be liable, because the injury resulted from circumstances over which you had no control.[35]

[35] 1 Addison on Torts, 466.



There are certain rules applicable to travellers upon public ways, which are so important that everybody ought to know and observe them. The law relative thereto is known as "the law of the road." These rules relate to the meeting, passing, and conduct of teams on the road; and it is more important that there should be some well established and understood rules on the subject than what the rules are. In England the rules are somewhat different, and some of them are the reverse of what they are in this country. But the rules and the law relating thereto in this country are about the same in every State of the Union. Our statutes provide that when persons meet each other on a bridge or road, travelling with carriages or other vehicles, each person shall seasonably drive his carriage or other vehicle to the right of the middle of the travelled part of such bridge or road, so that their respective carriages or other vehicles may pass each other without interference; that one party passing another going in the same direction must do so on the left-hand side of the middle of the road, and if there is room enough, the foremost driver must not wilfully obstruct the road.[36]

[36] Pub. St. c. 93.

Although these are statutory rules, yet they are not inflexible in every instance, as on proper occasions they may be waived or reversed. They are intended for the use of an intelligent and civilized people; and in the crowded streets of villages and cities, situations or circumstances may frequently arise when a deviation will not only be justifiable but absolutely necessary. One may always pass on the left side of a road, or across it, for the purpose of stopping on that side, if he can do so without interrupting or obstructing a person lawfully passing on the other side.[37] And if the driver of a carriage on the proper side of the road sees a horse coming furiously on the wrong side of the road, it is his duty to give way and go upon the wrong side of the road, if by so doing he can avoid an accident.[38] But in deviating from the "law of the road," one must be able to show that it was the proper and reasonable thing to do under the circumstances, or else he will be answerable for all damages; for the law presumes that a party who is violating an established rule of travelling is a wrongdoer.[39] Of course a person on the right side of the road has no right to run purposely or recklessly into a trespasser, simply because he has wrongfully given him the opportunity to receive an injury, and then turn round and sue for damages arising from his own foolhardiness and devil-may-care conduct.[40]

[37] Angell on Highways, Sec. 336.

[38] Shear. & Red. on Negligence, Sec. 309.

[39] 121 Mass. 216.

[40] 12 Met. 415.

Every one seeking redress at law on account of an accident must be able to show that he himself was at the time in the exercise of ordinary care and precaution, and it is not enough for him to show that somebody else was violating a rule of law. When the road is unoccupied a traveller is at liberty to take whichever side of the road best suits his convenience, as he is only required "seasonably to drive to the right" when he meets another traveller; but if parties meet on the sudden, and an injury results, the party on the wrong side of the road is responsible, unless it clearly appears that the party on the proper side has ample means and opportunity to prevent it.[41]

[41] 10 Cush. 495; 3 Carr. & Payne, 554; Angell on Carriers, Sec. 555.

Where there is occasion for one driver to pass another going in the same direction, the foremost driver may keep the even tenor of his way in the middle or on either side of the road, provided there is sufficient room for the rear driver to pass by; but if there is not sufficient room, it is the duty of the foremost driver to afford it, by yielding an equal share of the road, if that be practicable; but if not, then the object must be deferred till the parties arrive at ground more favorable to its accomplishment. If the leading traveller then wilfully refuses to comply, he makes himself liable, criminally, to the penalty imposed by the statute, and answerable at law in case the rear traveller suffers damage in consequence of the delay. There being no statute regulations as to the manner in which persons should drive when they meet at the junction of two streets, the rule of the common law applies, and each person is bound to use due and reasonable care, adapted to the circumstances and place.[42]

[42] 12 Allen, 84.

By the "travelled part" of the road is intended that part which is usually wrought for travelling, and not any track which may happen to be made in the road by the passing of vehicles; but when the wrought part of the road is hidden by the snow, and a path is beaten and travelled on the side of the wrought part, persons meeting on such beaten and travelled path are required to drive their vehicles to the right of the middle of such path.[43] Many drivers of heavily loaded vehicles seem to think that all lightly loaded ones should turn out and give them all the travelled part of the road. No doubt a lightly loaded vehicle can often turn out with less inconvenience than a heavily loaded one, and generally every thoughtful and considerate driver of a light vehicle is willing to, and does, give the heavy vehicle more than half the road on every proper occasion; but the driver of the heavy vehicle ought to understand that it is done out of courtesy to himself and consideration for his horses, and not because it is required by any rule of law. The statute law of the road in this State makes no distinction between the lightly and the heavily loaded vehicle. Both alike are required to pass to the right of the travelled part of the road. In case of accident the court would undoubtedly take into consideration the size and load of each vehicle, as bearing upon the question of the conduct of the drivers under the circumstances, and their responsibility would be settled in accordance with "the law of the road," modified and possibly reversed by the situation of the parties and the circumstances surrounding them at the time.[44]

[43] 4 Pick. 125; 8 Met. 213.

[44] 111 Mass. 360.

A traveller in a common carriage may use the track of a street railway when the same is not in use by the company; but the company is entitled to the unrestricted use of their rails upon all proper occasions, and then such traveller must keep off their track, or else he renders himself liable to indictment under the statutes of the State.[45]

[45] Pub. St. c. 113, Sec. 37; 7 Allen, 573.



In England "the law of the road" applies as well to equestrians as to travellers by carriage, and I can see no good reason why it should not do so here. The statutes are silent on the subject, and I cannot find that our Supreme Court has ever had occasion to pass upon the question; but it has been decided in some of the States that when a traveller on horseback meets another equestrian or a carriage, he may exercise his own notions of prudence, and turn either to the right or to the left at his option.[46] By common consent and immemorial usage an equestrian is expected to yield the road, or a good share of it, to a wagon or other vehicle. It has been decided in Pennsylvania that if he has a chance to turn out and refuses to do so, and his steed or himself is injured by a collision, he is remediless.[47]

[46] 24 Wend. 465.

[47] 23 Penn. St. 196.

It is clear that the statute law of the road in this State is not applicable to people on horseback, as it is expressly limited to carriages or other vehicles, and therefore equestrians are amenable only to the common law of the land. By this law they are required to ride on the public ways with due care and precaution, and to exercise reasonably good judgment on every occasion, under all the attendant circumstances. When they meet wagons, whether heavily loaded or not, they ought to yield as much of the road as they can conveniently,—certainly more than half, as they do not need that much of the road to pass conveniently,—but when they meet a vehicle in the form of a bicycle there seems to be no good reason why they should yield more than half the road. For the convenience of themselves and the public at large, on meeting vehicles or each other, they ought to pass to the right, as by adopting the statute law of the road in this respect order is promoted and confusion avoided.

A public thoroughfare is a way for foot-passengers as well as carriages, and a person has a right to walk on the carriage-way if he pleases; but, as Chief Justice Denman once remarked, "he had better not, especially at night, when carriages are passing along."[48] However, all persons have an undoubted right to walk on the beaten track of a road, if it has no sidewalk, even if infirm with age or disease, and are entitled to the exercise of reasonable care on the part of persons driving vehicles along it. If there is a sidewalk which is in bad condition, or obstructed by merchandise or otherwise, then the foot-passenger has a right to walk on the road if he pleases. But it should be borne in mind that what is proper on a country road might not be in the crowded streets of a city. In law every one is bound to regulate his conduct to meet the situations in which he is placed, and the circumstances around him at the time. A person infirm with age or disease or afflicted with poor eyesight should always take extraordinary precaution in walking upon the road.[49] Thus, a man who traverses a crowded thoroughfare with edged tools or bars of iron must take especial care that he does not cut or bruise others with the things he carries. Such a person would be bound to keep a better lookout than the man who merely carried an umbrella; and the man who carried an umbrella would be bound to take more care when walking with it than a person who had nothing.[50]

[48] 5 Carr. & Payne, 407.

[49] 1 Allen, 180.

[50] 1 Addison on Torts, Sec. 480.

Footmen have a right to cross a highway on every proper occasion, but when convenient they should pass upon cross-walks, and in so doing should look out for teams; for it is as much their duty, on crossing a road, to look out for teams, as it is the duty of the drivers of teams to be vigilant in not running over them. "The law of the road" as to the meeting of vehicles does not apply to them. They may walk upon whichever side they please, and turn, upon meeting teams, either to the right or to the left, at their option, but it is their duty to yield the road to such an extent as is necessary and reasonable; and if they walk in the beaten track or cross it when teams are passing along, they must use extraordinary care and caution or they will be remediless in case of injury to themselves. They may travel on the Lord's day for all purposes of necessity or charity; and they may also take short walks in the public highway on Sundays, simply for exercise and to take the air, and even to call to see friends on such walks, without liability to punishment therefor under the statutes for the observance of the Lord's day, and they can recover damages for injuries wrongfully sustained while so walking.[51]

[51] 14 Allen, 475; Barker v. Worcester, 139 Mass. 74.



Nearly every one has occasion, more or less often, to travel over the public ways in the coaches of passenger carriers. Whoever undertakes to carry passengers and their baggage for hire from place to place is bound to use the utmost care and diligence in providing safe and suitable coaches, harnesses, horses, and coachmen, in order to prevent such injuries as human care and foresight can guard against.

If an accident happens from a defect in the coach or harness which might have been discovered and remedied upon careful and thorough examination, such accident must be ascribed to negligence, for which the owner is liable in case of injury to a passenger happening by reason of such accident.

On the other hand, where the accident arises from a hidden and internal defect, which careful and thorough examination would not disclose, and which could not be guarded against by the exercise of sound judgment and the most vigilant oversight, then the proprietor is not liable for the injury, but the misfortune must be borne by the sufferer as one of that class of injuries for which the law can afford no redress in the form of a pecuniary recompense.

If a passenger, in peril arising from an accident for which the proprietors are responsible, is in so dangerous a situation as to render his leaping from the coach an act of reasonable precaution, and he leaps therefrom and breaks a limb, the proprietors are answerable to him in damages, though he might safely have retained his seat.[52]

[52] 9 Met. 1.

When the proprietors of stages or street-car coaches, which are already full and overloaded, stop their coaches, whether at the signal or not of would-be passengers, and open the doors for their entrance, they must be considered as inviting them to ride, and thereby assuring them that their passage will be a safe one, at least so far as dependent upon the exercise of reasonable and ordinary care, diligence, and skill, on their part, in driving and managing their horses and coaches; and, in fact, they are rather to be held responsible for such increased watchfulness and solicitous care, skill, and attention, as the crowded condition of the vehicle requires. If, under such circumstances, a passenger is thrown out of or off the coach by its violent jerk at starting or stopping, or in any other way through the negligence of the proprietors or their agents, he may hold them liable for his injuries.[53] A passenger must pay his fare in advance, if demanded, otherwise he may have to pay a fine for evading fare; and if he is riding free, the proprietors are not responsible, except for gross negligence; and he must also properly and securely pack his baggage, if he expects to recover damages in case of loss. A mail-coach is protected by act of Congress from obstructions, but is subject in all other respects to "the law of the road."[54]

[53] 103 Mass. 391.

[54] 1 Watts, Pa. 360.

If the proprietors of coaches used for the common carriage of persons are guilty of gross carelessness or neglect in the conduct and management of the same while in such use, they are liable to a fine not exceeding five thousand dollars, or to imprisonment not exceeding three years.[55] And if a driver of a stage-coach or other vehicle for the conveyance of passengers for hire, when a passenger is within or upon such coach or vehicle, leaves the horses thereof without some suitable person to take the charge and guidance of them, or without fastening them in a safe and prudent manner, he may be imprisoned two months or fined fifty dollars.[56]

[55] Pub. St. c. 202, Sec. 34.

[56] Pub. St. c. 202, Sec. 35.



As before intimated, the public ways are mainly for the use of travellers; but in the progress of civilization it has become convenient and necessary to use them for other purposes of a public nature. It is the great merit of the common law, that while its fundamental principles remain fixed from generation to generation, yet they are generally so comprehensive and so well adapted to new institutions and conditions of society, new modes of commerce, new usages and practices, that they are capable of application to every phase of society and business life. Time and necessity, as well as locality, are important elements in determining the character of any particular use of a public way. Many public ways are now used for gas, water-pipes, and sewers, because the public health and convenience are subserved by such use.[57] They are also used for the transmission of intelligence by electricity, and the post-boy and the mail-coach are disappearing.

[57] 35 N.H. 257.

The horse-railroad was deemed a new invention; but it was held that a portion of the road might well be set aside for it, although the rights of other travellers to some extent were limited by the privileges necessary for its use.[58]

[58] 136 Mass. 75.

And now motor cars and elevated railroads are making their appearance in the centres of civilized life, and the bicycle and tricycle are familiar objects on all the great thoroughfares. Should human ingenuity discover any new modes of conveying persons and property over the public ways, or of transmitting intelligence along the same, which should prove convenient to the everyday life of humanity, no doubt the highway law will be found applicable to all the needs of advancing civilization. The underlying principle of the law is that every person may use the highway to his own best advantage, but with a just regard to the like rights of others. The law does not specify what kind of animals or vehicles are to be allowed upon the road, but leaves every case to be decided as it shall arise, in view of the customs and necessities of the people from time to time. All persons may lawfully travel upon the public ways with any animal or vehicle which is suitable for a way prepared and intended to afford the usual and reasonable accommodations needful to the requirements of a people in their present state of civilization; but if any person undertakes to use or travel upon the highway in an unusual or extraordinary manner, or with animals, vehicles, or freight not suitable or adapted to a way opened and prepared for the public use, in the common intercourse of society, and in the transaction of usual and ordinary business, he then takes every possible risk of loss and damage upon himself.[59]

[59] 14 Gray, 242.

If a party leads a bull or other animal through a public way without properly guarding and restraining the same, and for want of such care and restraint people rightfully on the way and using due care are injured, the owner of the animal is responsible, because under such circumstances he is bound to use the utmost care and diligence, especially in villages and cities, to avoid injuries to people on the road.[60] So, if a man goes upon the highway with a vehicle of such peculiar and unusual construction, or which is operated in such a manner, as to frighten horses and to create noise and confusion on the road, he is guilty of an indictable offence and answerable in damages besides. An ycleped velocipede in the road has been held in Canada to be a nuisance, and its owner was indicted and found guilty of a criminal offence.[61] In England a man who had taken a traction steam-engine upon the road was held liable to a party who had suffered damages by reason of his horses being frightened by it.[62] It has been held to be a nuisance at common law to carry an unreasonable weight on a highway with an unusual number of horses.[63] And so it is a nuisance for a large number of persons to assemble on or near a highway for the purpose of shouting and making a noise and disturbance; and likewise it is a nuisance for one to make a large collection of tubs in the road, or to blockade the way by a large number of logs, cattle, or wagons; for, as Lord Ellenborough once said, the king's highway is not to be used as a stable or lumber yard.

[60] 106 Mass. 281; 126 Mass. 506.

[61] 30 Q.B. Ont. 41.

[62] 2 F. & F. 229.

[63] 3 Salk. 183.

Towns and cities have authority to make such by-laws regulating the use and management of the public ways within their respective limits, not repugnant to law, as they shall judge to be most conducive to their welfare.[64] They may make such by-laws to secure, among other things, the removal of snow and ice from sidewalks by the owners of adjoining estates; to prevent the pasturing of cattle or other animals in the highways; to regulate the driving of sheep, swine, and neat cattle over the public ways; to regulate the transportation of the offal of slaughtered cattle, sheep, hogs, and other animals along the roads; to prohibit fast driving or riding on the highways; to regulate travel over bridges; to regulate the passage of carriages or other vehicles, and sleds used for coasting, over the public ways; to regulate and control itinerant musicians who frequent the streets and public places; and to regulate the moving of buildings in the highways. Many people are inclined to make the highway the receptacle for the surplus stones and rubbish around their premises, and to use the wayside for a lumber and wood yard; and some farmers are in the habit of supplying their hog-pens and barn cellars with loam and soil dug out of the highway.

[64] Pub. St. c. 27, Sec. 15, and c. 53; 97 Mass. 221.

Again, some highway surveyors have very little taste for rural beauty, and show very poor judgment, and perhaps now and then a little spite, in ploughing up the green grass by the roadside and sometimes in front of houses. These evils can be remedied by every town which will pass suitable by-laws upon the subject and see that they are enforced. Such by-laws might provide that no one should be allowed to deposit within the limits of the highway any stones, brush, wood, rubbish, or other substance inconvenient to public travel; that no one should be permitted to dig up and carry away any loam or soil within the limits of the highway; and that no highway surveyor should be allowed to dig or plough up the greensward in front of any dwelling-house, or other building used in connection therewith, without the written direction or consent of the selectmen.



The owner of land adjoining a highway ordinarily owns to the middle of the road; and while he has the same rights as the public therein, he also has, in addition thereto, certain other rights incident to the ownership of the land over which the road passes. When land is taken for a highway, it is taken for all the present and prospective purposes for which a public thoroughfare may properly be used, and the damages to the owner of the land are estimated with reference to such use; but the land can be used for no other purpose, and when the servitude ceases the land reverts to him free from encumbrance. During the continuance of the servitude he is entitled to use the land, subject to the easement, for any and all purposes not incompatible with the public enjoyment. If the legislature authorizes the addition of any new servitude, essentially distinct from the ordinary use of a highway, like an elevated railroad, then the land-owner is entitled to additional compensation; for it cannot be deemed, in law, to have been within the contemplation of the parties, at the time of the laying out of the road, that it might be used for such new and additional purposes. It has been held in New York, Illinois, and some of the United States circuit courts, that the use of a highway for a telegraph line will entitle such owner to additional compensation; but in the recent case of Pierce v. Drew[65] the majority of our Supreme Court decided that the erection of a telegraph line is not a new servitude for which the land-owner is entitled to additional compensation.

[65] 136 Mass. 75.

A minority of the court, in an able argument, maintained that the erection of telegraph and telephone posts and wires along the roads, fitted with cross-beams adapted for layer after layer of almost countless wires, which necessitate to some extent the destruction of trees along the highways or streets, the occupation of the ground, the filling of the air, the interference with access to or escape from buildings, the increased difficulty of putting out fires, the obstruction of the view, the presentation of unsightly objects to the eye, and the creation of unpleasant noises in the wind, is an actual injury to abutting land along the line, and constitutes a new and increased servitude, for which the land-owner is entitled to a distinct compensation. After the rendering of the majority decision, the legislature very promptly passed a law allowing an owner of land abutting upon a highway along which telegraph or telephone, electric light or electric power, lines shall be constructed, to recover damages to the full extent of the injuries to his property, provided he applies, within three months after such construction, to the mayor and aldermen or selectmen to assess and appraise his damage.[66]

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