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created, under such circumstances, sufficient to justify or excuse a trareller, it is difficult to imagine a case which would come within the admitted rule of law. To hold a party guilty of a wrongful invasion of another's rights, for passing over land adjacent to the highway, under the pressure of such a necessity, would be pushing individual rights of property to an unreasonable extent, and giving them a protection beyond that which finds a sanction in the rules of law. Such a temporary and unavoidable use of private property must be regarded as one of those incidental burdens to which all property in a civilized community is subject. In fact, the rule is sometimes justified upon the ground of public convenience and necessity. Highways being established for public service, and for the use and benefit of the whole community, a due regard for the welfare of all requires that when temporarily obstructed, the right of travel should not be interrupted. In the words of Lord Mansfield, - it is for the general good that people should be entitled to pass in another line." It is a maxim of the common law, that where public convenience and necessity come in conflict with private right, the latter must vield to the former. A person travelling on a highway, is in the exercise of a public, and not a private right. If he is compelled, by impassable obstructions, to leave the way, and go upon adjoining lands, he is still in the exercise of the same right. The rule does not, therefore, violate the principle that individual convenience must always be held subordinate to private rights, but clearly falls within that maxim, which makes public convenience and necessity paramount.
It was urged in argument that the effect of establishing this rule of law would be to appropriate private property to public use without providing any means of compensation to the owner. If such an accidental, occasional, and temporary use of land can be regarded as an appropriation of private property to a public use, entitling the owner to compensation, which may well be doubted, still the decisive answer to this objection is quite obvious. The right to go extra viam, in case of temporary and impassable obstructions, being one of the legal incidents or consequences which attaches to a highway through private property, it must be assumed that the right to the use of land adjoining the road was taken into consideration and proper allowance made therefor, when the land was originally appropriated for the highway, and that the damages were then estimated and fixed, for the private injury which might thereby be occasioned.
It was also suggested that the Statutes of the commonwealth, imposing the duty on towns to keep public ways in repair, and rendering them liable for damages occasioned by defects therein, furnish ample remedies in cases of obstructions, and do away with the necessity of establishing the role of the common law in this Commonwealth, gives the right in such cases to pass over adjacent lands. But this is not so.
Towns are not liable for damages in those cases to which this rule of the common law would most frequently be applicable. — of
obstructions, occasioned by sudden and recent causes, which have not existed for the space of twenty-four hours, and of which the towns have had no notice. Besides, the Statute liability of towns does not extend to damages such as would ordinarily arise from the total obstruction of a highway, being expressly confined to cases of bodily injuries and damages to property. St. 1850, c. 5; Canning v. Williamstown, 1 Cush. 451 ; Harwood v. Lowell, 4 Cush. 310; Brailey v. Southborough, 6 Cush. 141.
From what has already been said, the limitations and restrictions of the right to go upon adjacent lands in case of obstructions in the highway can be readily inferred. Having its origin in necessity, it must be limited by that necessity; cessante ratione, cessat ipsa lex. Such a right is not to be exercised from convenience merely, nor, when, by the exercise of due care, after notice of obstructions, other ways may be selected and the obstructions avoided. But it is to be confined to those cases of inevitable necessity or unavoidable accident, arising from sudden and recent causes which have occasioned temporary and impassable obstructions in the highway. What shall constitute such inevitable necessity or unavoidable accident, must depend upon the various circumstances attending each particular case. The nature of the obstruction in the road, the length of time during which it has existed, the vicinity or distance of other public ways, the exigencies of the traveller, are some of the many considerations which would enter into the inquiry, and which it is the exclusive province of the jury to pass, in order to determine whether any necessity really existed, which would justify or excuse the traveller. In the case at bar, this question was wholly withdrawn from the consideration of the jury, by the ruling of the court
. It will therefore be necessary to send the case to a new trial in the Court of Common Pleas.
CODMAN v. EVANS.
(Reported 5 Allen, 308.]
At the trial in the Superior Court, before Rockwell, J., it appeared that the injury complained of was a continuance of the same injury for which a former action had been brought, between the same parties. I Allen, 443. The plaintiff's put in evidence the former judgment, and proved their title to the close described in the declaration ; and the defendant proved his title to the adjoining close, and offered evidence to show that the portion of the plaintiffs' land over which the bay-windows
extended was part of a passage extending from Tremont to Avery and Mason Streets, open at both ends, and had been used as a common thoroughfare since 1811, and that the bay-windows did not interfere with its use as a highway. He also offered evidence to prove that it was and for nineteen years had been usual and customary in Boston to build bay-windows projecting over highways in a similar manner and to a like extent as that erected by him; and for more than sixty years to build balconies and other similar projections over highways, projecting as far as the bay-windows in question. But the judge rejected the evidence, and a verdict was returned for the plaintiffs. The defendant alleged exceptions.
G. 0. Shattuck (G. Putnam, Jr., with him), for the defendant. C. A. Welch and W. S. Dexter, for the plaintiffs.
CHAPMAN, J. The parties are owners of adjoining lands, and the defendant's house stands on or near the line. The construction of his deed was settled in the former case between the same parties. 1 Allen, 443. He has erected a bay-window which extends beyond the line, over the plaintiffs' land, and maintains it there. The justification which he sets up in this action is, that there is a highway over the plaintiffs' land, extending to the line, and that his structure does not interfere with the use of the way. But this furnishes no legal defence. Nothing is better settled than that a highway leaves the title of the owner unaffected as to everything except the right of the public to make and repair it and use it as a way, and for some other public purposes, such as drainage and the laying of aqueducts; and that an adjoining proprietor has no more right to erect and maintain a permanent structure over the land than if no highway was there. A mere easement has passed to the public, leaving the fee in the owner. An adjoining proprietor may have occasion to use the way in connection with his land, in a different manner from other people. In O’Linda v. Lothrop, 21 Pick 292, it was held that he might swing his gate or door over the war, suffer bis horses or carriages to stand upon it, lay building materials upon it designed to be used on his land, and throw earth upon it as he removed the earth from his cellar. But these are all temporary acts, and are connected with the use of the way. He may spread earth upon it to make it more level and his access to it from his premises more convenient; but this is merely fitting it more perfectly to be used as a way. In Underwood v. Carney, 1 Cush. 285, the uses of the way which were held to be legal were of the same character as those in O’Linda v. Lothrop. They did not constitute permanent occupation; nor do those cases justify any occupation except for a reasonable time, and as connected with its use as a way. Here the occupation has been permanent, and having no connection with the use of the way.
The evidence of the alleged custom was rightly rejected. If there be a custom in Boston to erect bay-windows, balconies, and other structures over the streets, provided they do not interfere with the rights of the public, by proprietors who own the soil of the street, such a custom has no application to the case. If it be a custom to erect them over the land of other people, such a custom is illegal; and the defendant cannot justify himself in occupying his neighbor's property as a part of his dwelling-house on the ground that such trespasses are customary in Boston. Homer v. Dorr, 10 Mass. 26 ; Waters v. Lilley, 4 Pick. 145. In some of our ancient highways the fee has always been in the town. Probably this is the case as to many of the streets of Boston. It does not follow from the decision of this case that the public could maintain an action like the present. There are also many cases where lands adjoining the highway have been so conveyed that, by our established construction of deeds, the fee of the land from the side line to the centre of the highway remains in the grantor, though both parties actually supposed it was conveyed. It is now too late to discuss the question whether it would not have been better to hold that all deeds bounding on the highway conveyed all the rights of the grantor as far as the middle of the way, as deeds bounding on streams extend to the thread. But in such cases, where there are no covenants such as are contained in the deed of Amory to Apthorp respecting the way, and defining the rights of the parties (see 1 Allen, 444), and where the grantor has no other land adjoining the highway to be affected by building a structure
way, and can have no possible use of his fee so long as the highway exists, it does not follow from the decision in this case that he can maintain an action for the erection of such a structure. For in the present case the plaintiff not only has a right to have the whole space occupied by the street open, from the soil upwards, for the free admission of light and air, and the prospect unobstructed from every point, but it is a right of appreciable value in reference to himself and his grantees, who are proprietors of the other land adjoining the way. If the defendant may obstruct the light and air and prospect by means of a bay-window, he may by a much larger structure, and thereby greatly injure the property bounding on the street.
These views make it unnecessary to decide the questions argued as to the actual existence of the highway; because, if it does exist, that fact does not constitute a defence to the action.
MILLS v. LEARN.
SUPREME COURT OF OREGON. 1867.
(Reported 2 Oreg. 215.] The complaint alleges that a properly established highway runs through plaintiff's premises, and that the Umpqua River crosses said highway on those premises ; that defendant properly obtained a license to keep a ferry across that river, and the injuries complained of are that defendant used the banks of the Umpqua River, within the lines of
the public road, as places for landing from his ferry-boats, and for tying up the same, without first obtaining permission; and wrongfully and unlawfully continued and threatened to continue so to use the said banks; that plaintiff never had received any compensation for such use. Plaintiff prayed for a decree enjoining defendant from committing such trespasses. Defendant demurred to the complaint for insufficiency, and after argument the court below sustained the demurrer and dismissed the complaint. Plaintiff appealed, and the cause stands on demurrer to complaint, and the error alleged in sustaining the same.
Kelsay and Watson, counsel for appellant. W. R. Willis, counsel for respondent. Wilson, J. At the December Term, 1853, in the case of Grant v. Drew, 1 Oregon R. 35, the Supreme Court of Oregon Territory decided several questions which arise in this case. Under the law then, the proprietor of the land adjoining or embracing any watercourse, over which a ferry might be established, had the preference, if he made application, over others, to keep the ferry. The present law, Code 869, $ 42, declares not only a similar preference, but that no license shall issue to another unless, after notice of such application in writing, given to the riparian owner at least ten days prior to the term of court, such owner fail to appear and claim such license. That court declared that Grant, the riparian owner, had not the exclusive right to the ferry, and that he had failed to designate his preference to claim his right at the proper time, and it had been rightly conferred on another. After a full examination of the authorities, we here re-affirm the conclusions then made, that when a public highway crosses a stream of water it is not interrupted, but the water, and the soil beneath it, within the limits of the road, are a continuous part of the road ; that when necessary for the proper use and enjoyment of the highway by the public, the ferries and bridges are also parts and parcels of the road. The present law provides for no terminations of a road, except the places of commencement and ending; the survey is continuous; if streams of water intervene, they are not deemed interruptions, for the survey continues over them as though they did not exist, and the distance is no greater or less by reason of their happening. Within the continuous limits, the public are entitled to have the way made safest for travel; to have hills lessened, forests removed, embankments made, and naturally impassable places made passable by bridge or ferry. From the varied adjudications hitherto on this subject, the general drift tends to the doctrine which we enunciate as the law in Oregon. Our Statute recognizes fully the rule in our Constitution, art. 1, $ 18, and makes ample provision to compensate persons for those privileges, in respect to roads, which the public require. Public interests demand a safe and free right of travel through and over the whole length of a highway. The owner of lands, through which it may pass, has been notified that the public requires its location. He is well aware of the place of entrance upon, and exit from his premises, and the general course thereon ; of the