HIGHWAY. A passage, road, or street which every citizen has a right to use. 1 Bouvier, Inst. n. 442; 3 Kent, Comm. 432; 3 Yeates, Penn. 421.
The term highway is the generic name for all kinds of public ways, whether they be carriage ways, bridle-ways, foot-ways, bridges, turnpike roads, railroads, canals, ferries, or navigable rivers. 6 Mod. 255; Angell, Highw. c. 1; 3 Kent, Comm.
432.
2. Highways are created either by legisla tive authority, by dedication, or by necessity. First, by legislative authority. In England, the laying out of highways is regulated by act of parliament ; in this country, by general statutes, differing in different states. In Eng land, the uniform practice is to provide a compensation to the owner of the land taken for highways. In the act authorizing the taking, in the United States, such a provision must be made, or the act will be void under the clause in the several state constitutions that "private property shall not be taken for public use without Just compensation." The amount of such compensation may be determined either by a jury or by commissioners, as shall be prescribed by law. 1 Blackstone, Comm. 139; Angell, Highw. c. 2; 8 Price, Exch. 635 ; 12 Mass. 466; 18 Pick. Mass. 501; 2 Johns. Ch. N. Y. 162; 12 Barb. N. Y. 227 ; 25 Wend. N. Y. 462; 21 N. H. 358 ; 1 Baldly.
C. C. 222 ; 3 Watts, Penn. 292, In case the statute makes no provision for indemnity for land to be taken, an injunction may be ob tained to prevent the taking, 3 Paige, Ch. N.
Y. 45; 2 Johns. Ch. N. Y. 162; or an action at law may be maintained after the damage has been committed. 5 Cow. N. Y. 165 ; 16 Conn. 98 ; and cases cited above.
3. Second, by dedication. This consists of two things : first, on the part of the owner of the fee, an appropriation of land to be used by the public, generally, as a common way ; second, on the part of the public, an acceptance of the land, so appropriated, for such use. Against the owner, dedication may be proved by his express declaration, whether by deed or by parol, or by any act unequivocally evincing his intention to dedi cate, as by his opening a way for the public over his land, or it may he implied from his acquiescence in the use of his land for a pub lic way. Where acquiescence is the only evidence of dedication, it must ordinarily have continued for twenty years; though any shorter period will suffice, if such acqui escence cannot reasonably be accounted for except upon the supposition of an intent to dedicate. In all cases, the intent to dedicate —the animus dedicandi—is the indispensable ingredient of the proof against the owner of the fee. Angell, Highw. 0.3; 3 Kent, Comm. 451 ; 5 Taunt. 125 ; 30 Eng. L. & Eq. 207 ; 11 East, 375; 11 Mees. & W. Exch. 827; 6 Pet. 431; 19 Pick. Mass. 405 ; 5 Watts & S. Penn. 141. There may be a dedication to the public for a limited purpose, as for a foot way, horse-way, or drift-way, but not to a limited part of the public ; and such partial dedication will be merely void. 11 Mees. &
W. Exch. 827 ; 8 Cush. Mass. 195. The pro per proof of an acceptance is the use of the way by the public generally, 5 Barnew. & Ad. 469; 1 R. I. 93 ; but it has been held, in some states, that an acceptance to be effectual must be made by the body chargeable with the duty of repairing. 13 Vt. 424; 6 N. Y. 257 ; 16 Barb. N. Y. 251; 8 Gratt. La. 632 ; 2 Ind. 147.
Third, by necessity. If a highway be im passable, from being out of repair or other wise, the public have a right to pass in an other line, and, for this purpose, to go on the adjoining ground ; and it makes no difference whether it be sown with grain or not. 1 Ld. Raym. 725 ; Croke, Car. 366 ; 1 Rolle, Abr. 390 a; 7 Cush. Mass. 408 ; Yelv. 142, n. 1.
4. A highway is simply an easement or servitude, carrying with it, as its incidents, the right to use the soil for the purposes of repair and improvement ; and, in cities, for the more general purposes of sewerage, the distribution of light and water, and the fur therance of public morality, health, trade, and convenience. The owner of the land over which it passes retains the fee and all rights of property not incompatible with the public enjoyment, such as the right to the herbage, the trees and fruit growing thereon, or minerals below, and may work a mine, sink a drain or cellar, or carry water in pipes beneath it. 4 Viner, Abr. 502 ; Corayns, Dig. Chemin (A 2); Angell, Highw. c. 7 ; 1 Burr. 133; 1 N. H. 16 ; 1 Sumn. C. C. 21 ; 3 Rawle, Penn. 495; 10 Pet. 25 ; 6 Mass. 454 ; 15 Johns. N. Y. 447. He may maintain ejectment for encroachments thereon, or an assize if disseised of it, 3 Kent, Comm. 432; Adams, Eject. 19; 9 Serg. & R. Penn. 26 ; 1 Conn.135; 2 Smith, Lead. Cas.141, or trespass against one who builds on it, 2 Johns, N. Y. 357 ; or who digs up and removes the soil, 12 Wend. N. Y. 98, or cuts down trees growing thereon, 1 N. II. 16; or who stops upon it for the purpose of using abusive or insulting lan guage. 11 Barb. N. Y. 390. If a railroad be laid upon a highway, even though laid by legislative authority, the owner of the fee is entitled to compensation for the additional servitude. 2 E. D. Smith, N. Y. 97 ; 3 Hill, N. Y. 567 ; 4 Zabr. N. J. 592 ; 16 Miss. 649. The owners on the opposite sides prima facie own respectively to the centre of the high way, Angell, Highw. 313 ; and a grant of land bounded " by," or " on," or " along" a highway carries, by presumption, the fee to the centre, if the grantor own so far ; though this presumption may be rebutted by -Words showing an intention to exclude the highway, such as, " by the side of," "by the margin of," or "by the line of" the high way, or other equivalent expression. 3 Kent, Comm. 433 ; Angell, Highw. 315; 11 Me.