VIII. Rights in, and use by, members of public; street franchises. a. In general. b. The title to the streets being in the is a nuisance. Flynn v. Taylor, 14 L.R.A. city as trustee for the public, no grant or 556, 127 N. Y. 596, 28 N. E. 418. permission can be legally given which will interfere with their public use. The right of the public to the use of the streets is absolute and paramount to any other. Lincoln Safe Deposit Co. v. New York, L.R.A. 1915F, 1009, 210 N. Y. 34, 103 N. E. 768. c. The citizens of a municipality have the right to the reasonable use of the streets not only on the surface but above the surface. Temple v. McComb City Electric Light & P. Co. 11 L.R.A. (N.S.) 449, 89 Miss. 1, 42 So. 874. d. The public have a right to have power transmitted over any of the streets of a city to aid travel, not only upon the particular streets upon which such power is transmitted, but upon any other streets of the city. Brandt v. Spokane & I. E. R. Co. 52 L.R.A. (N.S.) 760, 78 Wash. 214, 138 Pac. 871. 1. The power of a municipality to prevent and remove all encroachments in or upon any street is only a police power, and does not extend to cases of a doubtful or uncertain nature, and which require to be first lawfully determined. State, Avis, Prosecutor, v. Vineland, 23 L.R.A. 685, 56 N. J. L. 474, 28 Atl. 1039. m. Municipal authorities may appropri ate streets for any use not incompatible with the object for which they were established. Barrows v. Sycamore, 25 L.R.A. 535, 150 Ill. 588, 37 N. E. 1096. 8 66. Equality of right; private purposes generally. a. Any and all of the public have an equal right to the reasonable use of a highway. Harold v. Jones, 3 L.R.A. 406, 86 Ala. 274, 5 So. 438. e. The dedication of land for a street b. Public streets are for the use and benecreates an easement which allows the munic-fit of all and no one has any exclusive right ipality to make any legitimate public use to privileges therein. Theobold v. Louisof it which does not impair the right of ville, N. O. & T. R. Co. 4 L.R.A. 735, 66 passage or the right of ingress and egress Miss. 279, 6 So. 230. to and from adjoining property. Hobbs v. Long Distance Teleph. & Teleg. Co. 7 L.R.A. (N.S.) 87, 147 Ala. 393, 41 So. 1003. f. The ownership by a city of the fee of land in the street is impressed with a trust for the benefit of the whole people of the state, to keep them open for use as such. New York v. Rice, 28 L.R.A. (N.S.) 375, 198 N. Y. 124, 91 N. E. 283. g. A municipality holds its streets and its power to regulate and control them in trust for the public, and cannot put them to any use inconsistent with street purposes. McIllhinny v. Trenton, 10 L.R.A. (N.S.) 623, 148 Mich. 380, 111 N. W. 1083. c. The privilege of using a public street is always to be regulated so as to protect the equal rights of others. Des Moines v. Keller, 57 L.R.A. 243, 116 Iowa, 648, 88 N. W. 827. d. The right of parties upon public ways and streets is a public right in which the whole community have an equal interest, with an equal right to complain of any infringement upon any such rights. Charlotte v. Pembroke Iron Works, 8 L.R.A. 828, 82 Me. 391, 19 Atl. 902. e. No person can acquire a right to make a special or exceptional use of a public highway, not common to all the citizens of the state, except by grant from the sovereign power. Dickey v. Davis, L.R.A.1915F, 840, 76 W. Va. 576, 85 S. E. 781. f. All members of the general public without regard to the place or position they occupy or the business they are engaged in, are entitled to the equal use and enjoyment of public streets and places. Louisville R. Co. v. Louisville F. & Life Protective Asso. 43 L.R.A. (N.S.) 600, 151 Ky. 644, 152 S. W. 799. h. Difference in the nature and importance of the use of a public highway only bears upon the question of reasonable use, and not upon the fact of the paramount right. Smart v. Aroostock Lumber Co. 14 L.R.A. (N.S.) 1083, 103 Me. 37, 68 Atl. 527. i. Whether or not any particular use of a highway is reasonable, depends on the character of the highway, its location and purposes, and the necessity, extent and duration of the use, under all the attendant and surrounding circumstances, the gen- g. Highways are constructed and maineral limitations upon the use being that tained at public expense, for public use by when it constitutes an obstruction, it must all persons alike, without limitation or rebe partial and temporary, justified by necesstriction, save only that the use must consity and convenience, in the ordinary and form to the well-established rules and regucontemplated use of the highway, not in- lations prescribed by law. Deputy v. Kimcompatible with the reasonable mell, 51 L.R.A. (N.S.) 989, 73 W. Va. 595, 80 S. E. 919. use of others, and not continued longer than the continuance of the necessity and a reasonable time for its removal. Harold v. Jones, 3 L.R.A. 406, 86 Ala. 274, 5 So. 438. j. A traveler lawfully using a public highway has the same rights to enjoy such use undisturbed as if he were the owner in fee simple. Smethurst v. Independent Cong. Church, 2 L.R.A. 695, 148 Mass. 261, 19 N. E. 387. k. Any unreasonable use of a public street land or not, whether a citizen or a stranger, h. Every person whether an owner of the has the right in common with the rest of ways. Hyde v. Minnesota, D. & P. R. Co. the public, to travel all of the public high40 L.R.A. (N.S.) 48, 29 S. D. 220, 136 N. W. 92. the public streets and highways for purposes i. All persons have equal right to use of travel by proper means, with due regard to the corresponding rights of others. But VIII. Rights in, and use by, members of public; street franchises. a. In general. ler v. Cabe, L.R.A.1915C, 702, 116 Ark. 26. | porations to erect or maintain permanent 171 S. W. 1190. obstructions therein for purely private purposes, but it may authorize such structures by such persons or corporations, for the purpose of serving the public, for private gain. Savage v. Salem, 24 L.R.A. 787, 23 Or. 381, 31 Pac. 832. j. Every citizen has a right to use public highways. Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. k. The permanent use of a public street for a private purpose cannot be authorized by a city. Hibbard S. B. & Co. v. Chicago, 40 L.R.A. 621, 173 Ill. 91, 50 N. E. 256. 1. No individual or corporation can acquire any portion of a public street, for exclusive private use, to the exclusion of the public. Hibbard S. B. & Co. v. Chicago, 40 L.R.A. 621, 173 Ill. 91, 50 N. E. 256. m. In the absence of legislative authority empowering it to do so, a city or other municipal authority cannot authorize, by ordinance or otherwise, a private person or corporation to appropriate a street, or any part of it, so as to exclude the general publie from its free and unobstructed use. Arbenz v. Wheeling & H. R. Co. 5 L.R.A. 371, 33 W. Va. 1, 10 S. E. 14. n. No easement or right for exclusive private use in a public street, to the exclusion of the public, can be granted by a municipality or acquired by any individual or corporation. Snyder v. Mt. Pulaski, 44 L.R.A. 407, 176 Ill. 397, 52 N. E. 62. o. It is not in accord with the trust upon which a municipality holds the streets, nor with the nature of the control which it has over them, to make use of the power and authority with which it is invested in that regard to promote or subserve a mere private interest, or to subordinate the right of one citizen in the street to the private interest and convenience of any other. Townsend v. Epstein, 52 L.R.A. 409, 93 Md. 537. 49 Atl. 629. u. A policeman who without a warrant arrests a citizen for refusing to make way for a parade on the public street, although he has been ordered by the chief of police to clear the street, is liable to an action for false imprisonment, if there was no express legislative authority for the exclusive appropriation of the street for the purpose of the parade. White v. State, 37 L.R.A. 642, 99 Ga. 16, 26 S. E. 742. § 67. Use of entire street. a. The right of the public to use a street Chase v. unobstructed use of the entire street and b. The public is entitled to the free and sidewalk for purposes of travel, subject only to the reasonable and proper control of the municipality. Vanderhurst v. Tholcke, 35 L.R.A. 267, 113 Cal. 147, 45 Pac. 266. e. The public has the right to the use of the entire sidewalk, in a public street, for the purpose of passage and other public purposes. Costello v. State, 35 L.R.A. 303, 108 Ala. 45, 18 So. 820. d. Where there has been adequate prop. Where the right to use a public high-vision made for travel by pedestrians and way for private purposes is not definitely limited by grant, it cannot be enlarged without the consent of the parties affected if it has become fixed by the manner of its use. Colegrove Water Co. v. Hollywood, 13 L.R.A. (N.S.) 904, 151 Cal. 425, 90 Pac. 1053. by vehicles, etc., and a reasonable actual apportionment, between those ways, of the remaining surface of a street for grass or tree plots these plots may be protected and guarded against unnecessary use by travelers, by appropriate or suitable guards set q. It is a general legal principle that there on or within the line of such plots. Bircan be no rightful permanent use of a pub-mingham v. Carle, L.R.A.1915F, 797, 191 lic highway by individuals for private pur- Ala. 539, 68 So. 22. poses. O'Hanlin v. Carter Oil Co. 66 L.R.A. 893, 54 W. Va. 510, 46 S. E. 565. r. A public street in a city is a public highway and its uses belong to the public generally and it cannot be said that such uses are limited to the municipality or to its citizenship alone. Alabama Western R. Co. v. State ex rel. Garber, 19 L.R.A. (N.S.) 1173, 155 Ala. 491, 46 So. 468. 8. Municipal authorities hold the streets of a city in trust for the use of the public, and cannot divert a street or any portion thereof, to any purpose inconsistent with the full and free right of the public to use the same. West Chicago Masonic Asso. v. Cohn, 55 L.R.A. 235, 192 II. 210, 61 N. E. 439. e. The public roads, free from any obstructions to travel, are solely, and from fence to fence, for the use of the traveling public. Lebanon Light, Heat & P. Co. v. Leap, 29 L.R.A. 342, 139 Ind. 443, 39 N. E. 57. f. The public is entitled to the full and free use of all the territory embraced within the limits of a highway, not only for actual passage, but for all purposes that are legitimately incident thereto. Kean, 48 L.R.A. 102, 69 N. H. 122, 45 Atl. 256. State v. g. A traveler may make use of any portion of the highway he chooses. Hubbard v. Bartholomew, 49 L.R.A. (N.S.) 443, 163 Iowa, 58, 144 N. W. 13. t. Since a municipal corporation holds its § 68. New uses or methods of use. control and power over its streets in trust a. A highway established for the general for the public, it has no authority to em- benefit of passage and traffic must admit of power or permit private persons or cor- new methods of use whenever it is found VIII. Rights in, and use by, members of public; street franchises. a. In general. that the general benefit requires them. h. A municipality has no power to auIndiana Springs Co. v. Brown, 1 L.R.A. thorize such a use of a street, although it (N.S.) 238, 165 Ind. 465, 74 N. E. 615. be a public one, as will destroy its usefulb. The general power to regulate the use ness as a public thoroughfare. State ex rel. of streets is not confined to public uses St. Louis Underground Service Co. v. Murknown at the time of its dedication, but phy, 34 L.R.A. 369, 134 Mo. 548, 31 S. W. extends to new uses as they spring into 784, 34 S. W. 51, 35 S. W. 1132. existence. State ex rel. St. Louis Underground Service Co. v. Murphy, 34 L.R.A. 369, 134 Mo. 548, 31 S. W. 784, 34 S. W. 51, 35 S. W. 1132. motion. a. The primary law of the highway is Brandt v. Spokane & I. E. R. Co. 52 L.R.A. (N.S.) 760, 78 Wash. 214, 138 Pac. 871. b. The primary use of a street is confined to travel and transportation. Donovan v. Allert, 58 L.R.A. 775, 11 N. D. 289, 91 N. W. 441. i. The right of the public to use the streets for the purpose of passage by such means as it may see fit to employ is given when streets are granted by a plat of an addition to a city, but this right of passage does not include the right to permanently and exclusively appropriate any portion of the street to the continued exclusion of the remainder of the public. Jaynes v. Omaha Street R. Co. 39 L.R.A. 751, 53 Neb. 631, 74 N. W. 67. j. The people generally are at liberty to use highways for travel, transportation and communication, subject only to the condition that such use does not interfere with other lawful uses of the highway nor invade the rights of the owners of abutting lands, where the state has neither prescribed b1. Streets are primarily intended for the any special conditions limiting or regulatuse of travelers and a municipal corpora-ing such use, nor delegated its power to tion has no power in the absence of express control the highways. State ex rel. Bartlegislative authority to allow a street to lett v. Weber, 43 L.R.A. (N.S.) 1033, be used for any other purpose. Augusta v. Kan. 175, 127 Pac. 536. Reynolds, 69 L.R.A. 564, 122 Ga. 754, 50 S. E. 998. c. The paramount purpose of maintaining streets and alleys is for public travel, and all other uses must be subordinate thereto. Spencer v. Andrew, 12 L.R.A. 115, 82 Iowa, 14, 47 N. W. 1007. d. Streets and highways are dedicated, secured, and maintained primarily for public transit, and must be so preserved. All other uses thereof must be subordinated or yield to the right of free and unobstructed passage. Pugh v. Crawford, L.R.A.1917F, 345, 176 Iowa, 593, 156 N. W. 892. e. The paramount object in establishing and maintaining streets is for the purpose of public travel, but, subject to this, they may be lawfully used for other purposes, which are conducive to the public convenience and which tend to make them of greater utility and convenience to those who legally have a right to their use. Smith v. Jefferson, 45 L.R.A. (N.S.) 92, 161 Iowa, 245, 142 N. W. 220. f. It is the duty of the municipal authorities having control of the highways to keep in mind that they are primarily for the passage of persons on foot and in vehicles, and, while permitting them to be used for other purposes, it should not be done in a manner which will prevent their use by the public or will render them unsafe or dangerous. McKim v. Philadelphia, 19 L.R.A. (N.S.) 506, 217 Pa. 243, 66 Atl. 340. 88 § 70. Modes of travel; traffic regula- Use of automobiles on, see AUTOMOBILES. Use of certain streets by hacks, see HACK- a. The public have the right to adopt any method of travel upon the public streets not calculated to render the streets unsafe to others. Chicago v. Collins, 49 L.R.A. 408, 175 Ill. 445, 51 N. E. 907. b. Highways are constructed for ordinary use, in an ordinary manner, and not for an unusual or extraordinary use either by crossing at great speed or by the passing of a very large and unusual weight. Com. v. Allen, 16 L.R.A. 148, 148 Pa. 358, 23 Atl. 1115. c. A citizen has an absolute right to choose his mode of conveyance provided he observes all of the "laws of the road." Swift v. Topeka, 8 L.R.A. 772, 43 Kan. 671, 23 Pac. 1075. d. A distinction exists between streets and avenues of a park system to which a city has acquired title for such purposes and a street which has been simply designated a parkway by a park board with consent of the city council; as, in the one g. As a general rule, an occupation of case, the board has complete jurisdiction streets otherwise than for travel and trans- and power, not only to regulate, but to portation is presumptively inferior and sub-prohibit, general traffic; while in the other servient to the dominant easement of the public for highway purposes. Cincinnati Inclined Plane R. Co. v. City & Suburban Teleg. Asso. 12 L.R.A. 534, 48 Ohio St. 390, 27 N. E. 890. case it has no power to prohibit general traffic, but only the power to regulate such traffic within a reasonable limit. State v. Rohart, 54 L.R.A. 947, 83 Minn. 257, 86 N. W. 93, 333. STITUTIONAL LAW, § 484 b-d. VIII. Rights in, and use by, members of public; street franchises. a. In general. e. The legislature in the exercise of its | Prohibiting use of loaded vehicles, see CoNpolice power, and general right to regulate the use of the highways of the state, may restrict, and even forbid, the use of such vehicles on the highways as are in fact dangerous to the general traveling public. Twilley v. Perkins, 19 L.R.A. 632, 77 Md. 252, 26 Atl. 286. f. A city has the right in the exercise of its police power, to enact such reasonable regulations for the safety of the public as are not in conflict with general laws, to regulate the use of vehicles on its public streets. While in doing this it may not arbitrarily discriminate against any species of vehicle, it may classify vehicles for the purpose of regulation in such manner as is reasonable, in view of the character and manner of use and the danger to the public to be apprehended, and such classification must be upheld by the courts unless, it is manifestly unreasonable or arbitrary. Ex parte Cardinal, L.R.A.1915F, 850, 170 Cal. 519, 150 Pac. 348. b. The daily use of a public highway by a traction engine drawing from two to four wagons loaded with lumber, although not an injury to the roadway itself, may be prohibited by the board of supervisors as dangerous to travel, and a nuisance. Covington County v. Collins, 14 L.R.A. (N.S.) 1087, 92 Miss. 330, 45 So. 854. of heavily loaded traffic to certain streets a. Municipalities may confine the passage and exclude it from others, but the regulations must not be such as will deprive a citizen of access to his home or business house, nor from all use of the streets for any of the recognized means of travel. Brown v. Nichols, L.R.A.1915D, 327, 93 Kan. 737, 145 Pac. 561. b. Ordinances for managing "prudential affairs," which, under Me. Rev. Stat. chap. 3, § 59, must be approved by county commissioners or by a judge, do not include an ordinance which sets apart one side of a street for heavy vehicles. State v. Board man, 46 L.R.A. 750, 93 Me. 73, 44 Atl. 118. e. An ordinance prohibiting the use of a street with traffic wagons, except upon permission of the village trustees, is rendered wholly void by the excepting clause. Cicero Lumber Co. v. Cicero, 42 L.R.A. 696, 176 Ill. 9, 51 N. E. 758. f. An ordinance providing that no vehicle which, together with its load, weighs more than 2,000 pounds, and which is in use for carrying goods, merchandise, building material, manure, dirt, earth, or other article or commodity, and which has tires less than 6 inches in width, shall pass or enter upon any park or parkway, is void as applicable to a parkway, because unreasonable, and in its effect prohibitive of traffic thus classified. State v. Rohart, 54 L.R.A. 947, 83 Minn. 257, 86 N. W. 93, 333. c. The regular use of a steam traction engine to draw heavy loads of stone from a quarry to a railroad, taking a train of two wagons at a time, and making two trips per day, each requiring from one hour to one hour and a half for one way, and sometimes stopping half an hour to get up steam, and frequently making much noise by blowing off steam,-constitutes an indictable nuisance where travel is thereby seriously hindered and women and children are afraid to drive that way; especially where the safety of bridges on the road is g. The legislature may require under penendangered by the heavy loads. Com. v. alty monthly reports from persons hauling Allen, 16 L.R.A. 148, 148 Pa. 358, 23 Atl. heavy logs over public highways as to the (Annotated) amount of traffic done by them. Dalton v. d. A city ordinance which, in effect, pro- George C. Brown & Co. 42 L.R.A. (N.S.) hibits one who owns and operates a machine 506, 159 N. C. 175, 75 S. E. 40. shop from using the streets in bringing and taking traction engines and heavy vehicles to and from his shop, and thereby arbitrarily deprives him of an opportunity to carry on his business, is unreasonable and void. Brown v. Nichols, L.R.A.1915D, 327, 93 Kan. 737, 145 Pac. 561. 1115. § 72.-heavy vehicles and loads. Use of traffic wagons on boulevards, see h. An ordinance requiring loaded vehicles carrying goods to or from premises abutting on a park way to enter on the way at the cross street nearest the premises in the direction in which the load is moving, and forbidding it to proceed thereon further than the nearest cross street thereafter, will not be constructed to forbid the loaded vehicles from leaving the premises where the goods were delivered or received. Illinois Malleable Iron Co. v. Lincoln Park, 51 L.R.A. (N.S.) 1203, 263 Ill. 446, 105 N. E. 336. VIII. Rights in, and use by, members of public; street franchises. a. In general. § 73. -slow-moving vehicles. Service R. Co. 42 L.R.A. (N.S.) 865, 82 N. a. The legislature may require slow-mov-J. L. 712, 83 Atl. 382. ing vehicles to keep to the right side of the b. Roller-skating on a sidewalk is not a street at points where traffic is large or the forbidden use thereof. Collins v. Philadelstreets are usually congested, notwithstand-phia, 27 L.R.A. (N.S.) 909, 227 Pa. 121, ing there may be times when such streets at 75 Atl. 1028. such points are free from heavy traffic or congestion. State v. Bussian, 31 L.R.A. (N.S.) 682, 111 Minn. 488, 127 N. W. 495. (Annotated) b. Under a statute requiring slow-moving vehicles to keep to the right side of the street at points where traffic is large or the streets are usually congested, a conviction may be had for driving a heavily loaded vehicle along the center of such a street although at the time of the commission of the offense no other vehicles were moving on the street, and the accused was not blocking any traffic, but merely drove on that part of the street most convenient for him. State v. Bussian, 31 L.R.A. (N.S.) 682, 111 Minn. 488, 127 N. W. 495. § 74. speed regulations. Speed of automobiles and motorcycles, see AUTOMOBILES AND MOTORCYCLES, § 7. Effect of acquiescence in validity of, see COURTS, § 81 f. Limiting speed in park highways, see PARKS § 75. Hitching horses. See also ante, § 58. (Annotated) § 77. Moving houses. e. a. Under the statutory power given a city council to regulate the use of the streets, the council may grant the right under restrictions to move a house along the street. Northwestern Teleph. Exch. Co. v. Anderson, 65 L.R.A. 771, 12 N. D. 585, 98 N. W. 706. is a frequent and proper use, and one which b. There is no right to move a building c. A municipal corporation, having plenary powers over its streets, may authorize the moving of a house along them, and require an electric railway company whose wires will be interfered with thereby to move them to permit the house to pass. Indiana R. Co. v. Calvert, 10 L.R.A. (Ñ.S.) 780, 168 Ind. 321, 80 N. E. 961. d. A permit to move a building along a street will not justify the moving of a building larger than the one described therein. Com. v. Byard, 20 L.R.A. (N.S.) 814, 200 Mass. 175, 86 N. E. 285. a. It is competent for municipal authorities to forbid persons from leaving horses standing in the streets unhitched and unattended. Wells v. Mt. Olivet, 11 L.R.A. (N.S.) 1080, 126 Ky. 131, 102 S. W. 1182. b. A town may, under the general police power conferred by charter, prohibit the hitching of horses upon any of its streets e. The use of a street for moving houses except at a place provided for that purpose, and the ordinance will be upheld unless it is clearly shown to be unfair, unreasonable, or oppressive, as applied in a particular case. Wells v. Mt. Olivet, 11 L.R.A. (N.S.) 1080, 126 Ky. 131, 102 S. W. (Annotated) 1182. § 76. Coasting; roller skating. Coasting as nuisance, see COURTS, § 220 a. is an extraordinary use thereof which may be permitted, but not so as to destroy the use of the street for travel or necessary publie purposes, and cannot be legally done in destruction or impairment of vested rights. Northwestern Teleph. Exch. Co. v. Anderson, 65 L.R.A. 771, 12 N. D. 585, 98 N. W. 706. ing a large building along a city street, f. An injunction will lie to prevent movwhere it would not only destroy the wires the running of its cars for many hours. of an electric-railway company, but stop Williams v. Citizens' R. Co. 15 L.R.A. 64, 130 Ind. 71, 29 N. E. 408. (Annotated} g. A statutory requirement that a telea. Coasting upon a public street of a city phone company shall locate its lines so as is not a nuisance per se. Lynch v. Public not to interfere with the safety and conel |