HIGHWAY. A place over which the public generally has a right to pass. In Lord Molt's language, "it is the go nus of all public ways." As a term of the common law, it includes roads, streets. footpaths. bridle-paths (or ways along which the public is entitled to ride or lead a horse), drift ways (or places along which the public may drive cattle), public canals, ferries, bridges with their approaches. public squares, and navigable streams, In statute,,, however, it is sometimes used in a narrower sense. being limited to country roads.
Ordinarily, the right of the public in a high way is that of user, not of land-ownership. To this extent it partakes of the nature of an ease ment (q.v.). but it is not a true b• cause there is no dominant estate. The public enjoys a right of way, but not as the oWner of an estate in land to which such a right is ap purtenant. .1 private way, on the other hand, is an easement. for its user belongs to particular by reason of their ownership of certain lands. 11'hether a place of passage is a high way or a private way does not depend upon its being a thoroughfare. that is open at both ends, or loading to a toddle place. it is now well set tled t hat a may be a highway. If the public is entitled to pass and repass. the place is a highway. although its terminus is at the gate of a private house.
Highways are created either by act of the Gov ernment. or by dedication of the landowner and acceptance by the public. Dedication may he either express or implied. It is of the first kind where a landowner formally lays out a funhlie road or street and gives notice that the puhlie may it. The dedication is implied where the puhlie makes use of a way without objection of the landowner. and under eireinnstances in dicating his assent to the public use. One may irrevocably convert a portion of his land into a highway, by selling lots bounded along a specified road or street, without securing an acceptance of the highway by the proper authori ties. In such a he is la Mali lu keep the road or street open for the lament of those who have been induced by his representations to be come purchasers of abutting properly. but the public is not bound to keep the way in repair. In order that this burden be cast upon the public, there must be an acceptance by the proper au thorities. At common law. a formal act of ac ceptance is not required. .1ny assumption of eoll trod, which is properly exercisable the proper authorities in the case of highways. such as let ting a contract for the improvement of the road or street in question. Mill establish an ituplied acceptance. In the United States country high ways are created more frequently by the act of 1:overnin•nt than by. private dedication. At times they are established by special but as a ride under general statutes. These differ
ill the various States. although their principal pro% isions are inuelt alike. They ordinarily p oplin. a formal application tor the highway, proper notice to the various perSIMS whose prop erty will be directly affected. a proper hearing before certain officers or tribunals, a proper as sessment of damages or of benefits, and a proper record of the proceedings. .1tter a highway has been established. it can be lawfully altered or vacated only by act of I;overnm•nt. This may be accomplished luy special legislation. A, a ride, however, the State delegates its authority over this subject to county. town, or city officials. In this country, even the State cannot change or a highway without inal:ing compensation ti landowners. whose property rights are taken away thereby. This is because of constitutional prohibitions against the taking of private prop erty four public without compensation. In England, Parliament is not thus hampered by constitutional limitations.
The ordinary rule, both in England and in this Country. is that the public has only a user of the surface of the highway; the fee of the land remains in the adjoining owner. Under the first branch, of the rule. the puldie is entitled to every part of the highway. and is not limited to the traveled or beaten part only. .1ceordingl•, if any portion of a highway is unlawfully oceu pied by a fence, gate, wall. or building. obstruction is a nuisance. and may be abated either by the public authorities. or by any traveler whose right to use the road is inter fered with. This is one of the few case. Nvliere a person is allowed to take the law into his own hands. It is his duty. in such eases, to proceed in a peaceable manner. and to do no Inure in jury than necessary to the property which con stitutes the nu is.)nee. The person who is responsi ble for the is liable in damages to any one injured thereby. In circumstances a trav eler has a right to deviate from the highway and go upon adjoining lands. This is based upon the gromnd of 1)111)14. eonvenience and necessity. Ilighways being established for the use and fit of the whole community. a due regard for the welfare of all requires that when temporarily obstructed by storm or flood. travel should not be interrupted. _1 person traveling on a highway is in the exercise of a public right, and if he is compelled by impassable obstructions to leave the thoroughfare and go upon private lands, he is still in the exercise of the same right. But this right of deviation rests upon necessity. not upon the personal convenience of the traveler. It is properly exercisable, therefore, only when the obstructions are due to sudden or recent causes, or when the traveler cannot make his journey by other ways.