II. Establishment; width. a. Establishment. b. Mere travel by the public over ways dedicated to public use is not sufficient acceptance to make them public highways. Smith v. Smythe, 35 L.R.A. (N.S.) 524, 197 N. Y. 457, 90 N. E. 1121. h. Working and improvement are neces-Clarksburg, 52 L.R.A. (N.S.) 773, 74 W. Va. sary to vest title to a public road in the 48, 81 S. E. 562. public, under a statute providing that all public roads that have been used for a certain period are declared to be lawful roads, where the same have been worked and kept up at the expense of the public. State v. Seattle, 27 L.R.A. (N.S.) 1188, 57 Wash. 602, 107 Pac. 827. i. A prescriptive right to a highway may be secured by the use of a trail by foot and horsemen and horses trailing poles loaded with goods. Hamp v. Pend Oreille County, L.R.A.1918E, 400, 102 Wash. 184, 172 Pac. (Annotated) -as affected by nonacceptance. Acceptance, see post, §§ 6, 7. 869. § 4. a. A private way does not become a public one by user, under a statute providing that roads that have been used as such for ten years or more shall be deemed public highways, where it was built for private gain, from a public highway to a private wharf and ferry landing, and has always been maintained by private enterprise, the township having in no way indicated an intention to accept it, while the ferry license was granted on the express condition that the licensee should maintain the way, although no objection has ever been made to its use by anyone. Stickley v. Sodus, 59 L.R.A. 287, 131 Mich. 510, 91 N. W. 745. b. While the public may, as against the owner of the soil, acquire by prescription a right of way, there must be an acceptance by the public authorities before the way be-. comes a public road that they are obliged to maintain. State use of James v. Kent County, 33 L.R.A. 291, 83 Md. 377, 35 Atl. 62. c. The establishment of the public highway in some manner provided by statute is necessary to constitute an acceptance of the congressional grant of a right of way across public land and perfect the grant; and, therefore, a mere user short of the time necessary to establish title by adverse possession is not sufficient. Vogler v. Anderson, 9 L.R.A. (N.S.) 1223, 46 Wash. 202, 89 Pac. 551. § 5. Restriction in deed. c. For the purposes of an action against a city for an injury alleged to have resulted from a defect in a sidewalk constructed along the side of a building and bordering on a public street, but on land belonging to the owner of the building, the sidewalk is sufficiently recognized as a public walk by the grant, by the city council, of a permit to the owners of the building to construct, maintain, and operate in such sidewalk an elevator in connection with their use of the building. Post v. Clarks- N. E. 78. land conveyed to a town for highway pure. No formal acceptance of a strip of poses is necessary to make it a highway under R. I. Pub. Stat. chap. 64, § 25, which deed the land "shall be thenceforward a pubdeclares that from the recording of such lic highway to all intents and purposes and shall not be liable for repairs until so orbe liable to be opened," but that the town dered by the town council. Greene v. O'Connor, 19 L.R.A. 262, 18 R. I. 56, 25 Atl. 692. to a strip of land used by the public as a f. Leaving an opening from a city street street, but not accepted by the city, and placing a light at the same point, do not constitute an adoption of the alleged street as a public highway which the city is bound 51 L.R.A. 170, 156 Mo. 60, 56 S. W..902. to keep in repair. Downend v. Kansas City, § 7. -over public lands. (Annotated) a. An acceptance of a congressional grant of a right of way for a public highway across public lands at a place other than section lines is not shown by the mere fact that the county surveyor made a proposed survey of such highway, and that subsequently the county commissioners appointed viewers and reviewers and accepted their reports, where the owners of land crossed by it repeatedly obstructed the same, which resulted in widey diversified routes of travel, without any objection on the part of the public authorities, who never exercised or sought to exercise any control over it or made any improvements thereof, and the greater part thereof has long been abandoned. Koloen v. Pilot Mound Twp. L.R.A.1917A, 350, 33 N. D. 529, 157 N. W. 672. (Annotated) a. A restriction of the use of land as a highway to the time from December to May inclusive in each year, requiring it to be kept closed by gates for the remainder of the year, except that the road may be worked at any time, does not make a deed to a town for highway purposes invalid under a statute authorizing it to take conveyances of land "for the use of the inhabit-ants." Hughes v. Bingham, 17 L.R.A. 454, 135 N. Y. 347, 32 N. E. 78. § 6. Acceptance. By adoption or approval of plat showing a. Very slight corporate recognition of a way suffices, where it has been laid out and used by the public, and such recognition may be implied as well as express. Post v. b. Public use of a strip of land as a highway for a period of seven years before the rights of a homestead entry attach to it is sufficient acceptance of the benefit of II. Establishment; width. a. Establishment. U. S. Rev. Stat. § 2477, U. S. Comp. Stat. 1901, p. 1567, providing that "the right of way for the construction of highways over public lands, not reserved for public use, is hereby granted;" and it is not necessary that there shall have been a formal acceptance of it, or a user for the prescriptive period. Okanogan County v. Cheetham, 70 L.R.A. 1027, 37 Wash. 682, 80 Pac. 262. c. In order to constitute an acceptance of a congressional grant of a right of way for a public highway over public lands, there must either be user by the public for such a period of time and under such conditions as to establish a highway under the laws of the state, or there must be some positive act or acts on the part of the proper public authorities clearly manifesting an intent to accept such grant with respect to such highway. Koloen v. Pilot Mound Twp. L.R.A. 1917A, 350, 33 N. D. 529, 157 N. Ŵ. 672. § 8. Over tidelands, navigable waters. Right to compensation on extending street across, see EMINENT DOMAIN, § 151 k. Extending across accretion to water's edge, see WATERS, § 65 b, c. Measure of damages for widening streets, see DAMAGES, § 306. Right to compensation on vacating part of width, see EMINENT DOMAIN, § 233. Estoppel to change street line, see ESTOPPEL, § 7 b. Evidence of purpose in widening street, see EVIDENCE, § 1193 a. Validity of contract made by city in acquiring property for purpose of widening street, see MUNICIPAL CORPORATIONS, § 127 f. Special legislation as to, see STATUTES, § 187 b. See also post, § 42 j. a. The width required for a street is governed by the necessities of travel in each particular case. Penley v. Auburn, 21 L.R.A. 657, 85 Me. 278, 27 Atl. 158. b. That a road is not shown to have any to determine whether or not it is a highway. specified width is immaterial in an action People ex rel. Hart v. Marin County, 26 L.R.A. 659, 103 Cal. 223, 37 Pac. 203. c. After twenty years' user by the public of land dedicated for a highway, with a. The laying out of a street over tide nothing to show its width, the width used lands is authorized only for the extension by the public at the end of that time will of existing streets, under Wash. act March be regarded as established. Western R. Co. 24, 1890, giving a city the right "to project or extend" streets over such lands. Seattle V. Alabama G. T. R. Co. 17 L.R.A. 474, 96 & M. R. Co. v. State, 22 L.R.A. 217, 7 Wash. Ala. 272, 11 So. 483. 150, 34 Pac. 551. b. Express authority is necessary to authorize the laying out of a highway into a navigable body of water for the purpose of a wharf or landing place. Highway Comrs. v. Ludwick, 15 L.R.A. (N.S.) 1170, 151 Mich. 498, 115 N. W. 419. (Annotated) c. Authority to lay out highways does not include a power to lay one out over navigable waters. Highway Comrs. v. Ludwick, 15 L.R.A. (N.S.) 1170, 151 Mich. 498, 115 N. W. 419. § 9. Notice of proceeding to lay out. Necessity of notice of proceedings to condemn land for, see CONSTITUTIONAL LAW, § 647. a. Lack of notice to the owner of premises, of proceedings to lay out a highway over them, is not fatal to jurisdiction if a tenant or other occupant was made a party and duly notified. Ryder v. Horsting, 16 L.R.A. 186, 130 Ind. 104, 29 N. E. 567. (Annotated) b. Width. § 10. Generally. Widening for railway switch, see post, § 23, d. Location of fence by abutting owner as enlarging public rights, see BOUNDARIES, § 10 c. Width of highway dedicated by plat or map, see DEDICATION, § 24 a-c. Acceptance of dedication for entire width, see DEDICATION, § 39 c. Who liable for assessments for widening, see PUBLIC IMPROVEMENTS, § 46 d. d. Where a way was originally laid out 3 rods wide, the public is entitled to a way of that width, notwithstanding the wrought part and the part actually used by travellers may have been less than that. The traveled path may also from time to time be widened or otherwise improved, as the. growing wants of the public may require, provided such improvements are kept within the limits of the way as originally laid out. Pillsbury v. Brown, 9 L.R.A. 94, 82 Me. 450, 19 Atl. 858. (Annotated) e. The use of ways, commenced under an actual and recorded location which clearly and distinctly defines their width, though the proceeding may not have been in all particulars strictly conformable to law, is presumed to be coextensive with the location. Pillsbury v. Brown, 9 L.R.A. 94, 82 Me. 450, 19 Atl. 858. f. A homesteader across whose claim a highway is claimed by public user is entitled to a hearing as to its width, when the county assumes control of it, where the legislature has established merely a minimum and maximum width, leaving the actual width of each road to the discretion of the local authorities. Okanogan County v. Cheetham, 70 L.R.A. 1027, 37 Wash. 682, 80 Pac. 262. g. The highway acquired by prescriptive use of a trail is not limited to the actual width used, but includes such width as is reasonably necessary for the public easement of travel. Hamp v. Pend Oreille County, L.R.A.1918E, 400, 102 Wash. 184, 172 Pac. 869. III. Highway officers. § 11. Generally. Necessity of permit from highway commissioners to make use of boulevard, see ante, § 34 h. Right to recover for injuries, see post, § 205. Notice to, of defects in street, see post, § 237. Relation of judiciary to, see COURTS, § 61. surface water, see WATERS, § 155 1. a. Although under the code of Public General Laws of Maryland, county commissioners have charge of, and control over county roads and bridges, have power to open or close public roads in their respective counties, and are required to keep them in repair, the legislature can so change their powers and duties as to such roads as to place them under the control of another board. Bonsal v. Yellott, 69 L.R.A. 914, 100 Md. 481, 60 Atl. 593. b. Limiting the class of voters for road commissioners to resident freeholders, or ex Requiring abutting owner to keep sidewalks free from snow and ice, see CONSTITUTIONAL LAW, §§ 302 a, 340, 485; EMINENT DOMAIN, § 211; PUBLIC IMPROVE. MENTS, $ 18. Equal protection and privileges as to, see CONSTITUTIONAL LAW, § 340. Requiring landowner to keep highway_free from weeds, see CONSTITUTIONAL LAW, §§ 486, 643, 711; MUNICIPAL CORPORATIONS, § 115. Criminal liability for failure to build and maintain sidewalk, see CONSTITUTIONAL LAW, § 675 j. Requiring abutting owner under police pow er, to repair sidewalk, see CONSTITUTIONAL LAW, § 698 h. Implied agreement of county to pay for repairs, see CONTRACTS, § 21 i. Use of county funds for, see COUNTIES, § 36. Making repairs as acceptance of dedication, Diversion of water by improvement, see Right to compensation on condemnation for street, see EMINENT DOMAIN, §§ 209211, 218. tending it to include women and nonresi-Necessity of making compensation generally, dents, is not permitted where the Constitution limits the class of voters for elective officers to male citizens. State ex rel. Alli son v. Blake, 25 L.R.A. 480, 57 N. J. L. 6, -29 Atl. 417. c. Acts in the nature of repairs to or improvements of an existing way are within the terms "making and repairing," in a statute conferring power on road commissioners so that in performing them they will act as public officers, although the work is ordered by the county commissioners, is unusual and extensive in character, and provided for by a special appropriation by the town, and a statute requires towns to complete roads according to the lay-out or order of the county commissioners. McManus v. Weston, 31 L.R.A. 174, 164 Mass. 263, 41 N. E. 301. IV. Improvements; repairs. § 12. Generally. Liability for damages from negligence in making, see post, §§ 98 g, 112. Liability of municipalities for injuries be cause of lack of repair, see post, § 149. Maintenance of, as public and governmental duty, see BRIDGES, § 8 a. Compelling town to contribute towards maintenance of highway outside territorial bounds, see BRIDGES, § 9 a. Violation of right of local self-government as to, see CONSTITUTIONAL LAW, § 52 z. Delegation to city of power as to, see CONSTITUTIONAL LAW, § 86. see EMINENT DOMAIN, §§ 220-265. Establishment of grade as a taking of prop erty, see EMINENT DOMAIN, §§ 226, 227. Estoppel by permitting, see ESTOPPEL, § 97. Evidence in action for injuries resulting from negligence of street contractor, see EVIDENCE, § 631 m. Evidence on question of damages by street improvement, see EVIDENCE, § 1258 a. Proof of breach by municipality of contract for street sprinkling, see EVIDENCE, § 1564 e. Evidence admissible under general issue, see EVIDENCE, § 1679 i. Injunction against performance of contract for street paving, see INJUNCTION, § 134 d, e. Mandatory injunction to compel, see INJUNCTION, § 245. Duty of life tenant to pay expense of paving sidewalk, see LIFE TENANTS, § 22 c. Delegation of power as to, see MUNICIPAL CORPORATIONS, § 51. Irrevocability of municipal act as to, see MUNICIPAL CORPORATIONS, § 140 v. Contract by municipal officers for street sprinkling beyond term of office, see MUNICIPAL CORPORATIONS, § 140 y. Liability of municipality for injury by street improvement, see MUNICIPAL CORPORA TIONS, §§ 232, 233. Obstructing or diverting surface waters in grading street, see MUNICIPAL CORPORA TIONS, § 247. IV. Improvements; repairs. Municipal liability for injuries in making and collect taxes to be expended in the perrepairs, see MUNICIPAL CORPORATIONS, formance of the duty thrust upon them. First Nat. Bank v. Malheur County, 35 L.R.A. 141, 30 Or. 420, 45 Pac. 781. § 281. Municipal tax for street improvements, see MUNICIPAL CORPORATIONS, § 326. f. If public necessity or convenience reSetting aside verdict against city for in-quires the improvement of a highway, it jury caused by, see NEW TRIAL, § 14 c. Notice to remainderman to lay sidewalk, see NOTICE, § 18 g. is immaterial at whose expense it is made. Hitchcock v. Zink, 13 L.R.A. (N.S.) 1110, 80 Neb. 29, 113 N. W. 795. g. A railroad company which has appropriated a public highway and properly constructed a substitute highway is under no duty or obligation to maintain or keep the new or substitute road in repair, in the absence of a statute so requiring. County Ct. v. Baltimore & O. R. Co. L.R.A.1917Č, 967, 77 W. Va. 538, 87 S. E. 884. (Annotated) Building and repairing of pavement, sidewalk, street sprinkling and sweeping, and other public improvements generally, see PUBLIC IMPROVEMENTS. Injuries from improving or repairing highway, see PUBLIC IMPROVEMENTS, § 101. Duty of railroad permitted to locate tracks in street, to restore to former usefulness, see RAILROADS, § 29. Duty of railroad with respect to highway constructed as substitute for one appropriated, see RAILROADS, § 30. Liability of railroad for maintenance of surface crossing viaduct, or overhead bridge, see RAILROADS, § 57. Right to require railroad elevating tracks i. In Nebraska, the owner of the fee canover street crossing to maintain pave-not complain that a sidewalk is being conment in repair, see RAILROADS, § 58. structed along a public road by private parAbolition of grade crossings, see RAILROADS, ties, where permission to build the walk has S$ 61-63. been granted by the board of county commissioners. Hitchcock v. Zink, 13 L.R.A. (N.S.) 1110, 80 Neb. 29, 113 N. W. 795. Title of statute as to, see STATUTES, § 96. Power of road district to raise money by Charging town with expense of maintain- a. A public highway belongs to the public which is responsible for its repair. Mauldin v. Greenville, 43 L.R.A. 101, 31 S. E. 252, 53 S. C. 285. b. The work of repairing roads and bridges by public officers is ministerial in its nature. Strong v. Day, L.R.A.1917B, 369, Okla. 160 Pac. 722. c. As between the public and the owner of land upon which a common highway is established, the public has a right to improve and use the public highway in the manner and for the purposes contemplated at the time it was established. Dailey v. State, 24 L.R.A. 724, 51 Ohio St. 348, 37 N. E. 710. d. The construction of a road by private individuals and by private subscription imposes no obligation to maintain it and keep it in repair upon the individuals who constructed it, or upon the county or township in which it is situated. Manning v. Devils Lake, 65 L.R.A. 187, 13 N. D. 47, 99 N. W. 51. h. A public road is for use by the traveling public, and may be improved to accommodate footmen, as well as those using it for teams, wagons, or other vehicles. Hitchcock v. Zink, 13 L.R.A. (N.S.) 1110, 80 Neb. 29, 113 N. W. 795. (Annotated) j. The absence of a formal transfer of a street by the imprisonment district to the city does not deprive the city of the power to compromise a suit brought in the joint names of itself and the commissioners of the district to compel repair of the streets, where the street has in fact been under control of the city sufficiently long to become badly worn. McClendon v. Hot Springs, L.R.A.1917F, 535, 129 Ark. 286, 195 S. W. 686. k. Property in a city can be taxed by a county board of turnpike directors, to repair, maintain, and pay for material for free gravel roads for turnpikes within the county although situated wholly without the limits of the corporation, where the statutes make the taxing district consist of the whole county. Byram v. Marion County, 33 L.R.A. 476, 145 Ind. 240, 44 N. E. 357. 1. The exemption of city property from taxes for roads or bridges under Ind. act 1867, § 61, as amended by Ind. act 1891, extends only to the ordinary road taxes, and not to taxation for free gravel roads. Byram v. Marion County, 33 L.R.A. 476, 145 Ind. 240, 44 N. E. 357. m. The right of municipalities to improve and change streets for public purposes is fundamental and does not depend upon the use of any particular word or words in expressing it. Scranton Gas & W. Pa. 586, 64 Atl. 84. Co. v. Scranton, 6 L.R.A. (N.S.) 1033, 214 e. The duty of maintaining highways devolves upon the state in its sovereign capacity, but is delegated in part to the sev-§ 13. Road work. eral counties therein, which are authorized Due process in taking gravel for repair, see by law, as trustees for the public, to levy CONSTITUTIONAL LAW, § 647 g. IV. Improvements; repairs. Requisitioning property for as a taking, see, who shall, upon notice, wilfully fail or re EMINENT DOMAIN, § 155 r, s. Partial invalidity of statute as to, see STAT- Title of statute as to road tax, see STAT- fuse to perform work upon the public roads. as required by statute, within ten days of such failure, which statute is directory merely, does not inure to the benefit of one accused by a complaint filed after the expiration of such period, so as to render him free from liability or punishment. State v. Rayburn, 22 L.R.A. (N.S.) 1067, 2 Okla. Crim. Rep. 413, 101 Pac. 1029. g. A statute making a person guilty of a · misdemeanor who shall, upon notice, wilRepeal of statute as to, see STATUTES, § 328 fully fail or refuse to comply with a stat Road tax as a tax and not a local ment, see TAXES, § 2 i. Labor on highways as personal tax, see Validity of method of distributing road ute requiring all male persons between twenassess-ty-one and fifty years of age to perform certain labor upon the public highways, or furnish a substitute, or pay a stipulated sum in lieu thereof, and making it the duty of the road overseer to file a complaint with the justice against such person within ten days after such failure or refusal, and providing that an overseer who shall fail to file such complaint shall be guilty of a misdemeanor, is directory merely, and does not limit the time within which a complaint may be filed to such ten days, the purpose of such limitation being to compel vigilance on the part of the overseer, and render him liable for failure to perform such duty. State v. Rayburn, 22 L.R.A. (N.S.) 1067, 2 Okla. Crim. Rep 413, 101 Pac. 1029. a. Requiring labor for the working of highways is not taxation. State v. Wheeler, 5 L.R.A. (N.S.) 1139, 141 N. C. 773, 53 S. E. 358. (Annotated) b. Even if requiring labor for the working of highways is taxation, it is not double taxation upon those required to do the work, but merely a higher rate for the maintenance of the roads. State v. Wheeler, 5 L.R.A. (N.S.) 1139, 141 N. C. 773, 53 S E. 358. c. A state, unless restrained by some constitutional limitation, has inherent power to require every able-bodied man within its jurisdiction to labor for a reasonable time on public roads near his residence without direct compensation. Galoway v. State, L.R.A.1918D, 970, 139 Tenn. 484, 202 S. W. 76. h. Nonresidence does not relieve one owning property and teams in a county from complying with a statute requiring the furnishing of teams and wagons for work on the highway of such county. Galoway v. State, L.R.A.1918D, 970, 139 Tenn. 484, 202 S. W. 76. § 13. Change of grade. a taking of property, see EMINENT Do- Estoppel to claim damages from, see ESTOP- d. A constitutional provision against a "levying of taxes by the poll" is not violated by a statute which was substantially | As in force when the Constitution was adopted, compelling able-bodied male residents between twenty and fifty years of age to labor two days at least annually in repairing the roads, with the privilege of furnishing a substitute or paying 75 cents per day instead. Short v. State, 29 L.R.A. 404, 80 Md. 392, 31 Atl. 322. (Annotated) e. A statute requiring certain male persons between twenty-one and fifty years of age to perform four days' work upon the public highways of the state, for the purpose of keeping them in repair, with the privilege of providing a substitute or paying $1 per day in lieu thereof, does not impose a poll tax, within the meaning of, and is not repugnant to, a constitutional provision granting the legislature authority to levy and collect a poll tax on all electors of the state under sixty years of age, not exceeding $2 per capita, per annum. State v. Rayburn, 22 L.R.A. (N.S.) 1067, 2 Okla. Crim. Rep. 413, 101 Pac. 1029. f. The failure of a road overseer to com Evidence on question of damages for injury Interest on claim for damages from, see IN- Right of action against city for giving er- a. Raising of street grade as proximate cause of injury by surface water, see PROXI- Power to fix and change grade, see PUBLIC Assessments for cost of generally, see PUB- Assessments for sidewalk made necessary donment. a. Discontinuance. ply with a statute requiring him to file a § 14. Generally. criminal complaint against any male person Necessity for barriers for discontinued highbetween twenty-one and fifty years of age way, see post, § 134 v. |