Under the second branch of the rule, stated above, if the land on both sides of a highway belongs to the same owner, then the right to the ground beneath the road belongs to him also; and if the laud on one side belongs to a different owner from the land on the other side, then each is presumed to have the right to the ground under the highway up to the middle line. This rule is more than a mere theory, for though neither of the adjoining owners can ever interfere with the passage of the public, who have an absolute right forever to use it for every lawful purpose of transit, yet the adjoining owner has all the rights incidental to the property which du not interfere with this public right of passage. Thus, if a mine were discovered under the road, the adjoin ing owner would have the sole right to dig it and keep the contents; all that he would require to attend to would be to leave sufficient support for the surface of the road. So, in like manner, where there are strips of land at the side of the road on which, trees grow or grass, these belong solely to the adjoining owner, and the public have no right to them. Another consequence fol lows, that if, for example, a gas company or a water company without due permission were to presume to take up the highway in order to lay pipes under the surface, this would be not only an indictable nuisance as regards the public, in• nsmtp•h as it obstructs the use of the road for the time being, but would subject the company to an action of trespass at the suit of the adja cent owner, whose property consists of all that lies under the surface of the highway. Still an other consequence of the same rule is, that if a person is loitering on a highway, not with the intention of using it as a traveler, but for some unlawful purpose, such as creating a disturbance and abusing an adjoining property-owner, he may be dealt with as a trespasser.
The English common law imposed the duty of maintaining and repairing all highways upon the parish. If the duty was neglected the parish was indictable, and wns liable for damages sustained by travelers through its negligence. Public bridges. although included in the term highways, as we have seen, were an exception to the rule just stated. The duty of constructing and main taining them rested upon the county as a part of the trinoda tweesniins, or threefold service, to which all grants of absolute ownership of land were formerly subject. At present, the main tenance and general control of highways and bridges in England and Wales are committed chiefly to district and county councils, in ac cordanee with the Local Government Act, 1894 (50 and 57 N'iet.. e, 73).
In this country, while every highway is subject to the control of the State or Federal Govern ment, comparatively few roads are constructed and maintained directly either by a State or the nation. The power to establish them and the duty of keeping them in repair are generally dele gated to some subdivision of the State. such as
the township, the county, or the city. The Habil ity of these political subdivisions for their negli gent performance of this duty varies in the different States. As a rule, however, they must respond in damages for injuries caused to trav elers by defects in highways of which the proper authorities had notice, and which it was their duty to remedy. In some States, a township is divided into road districts, and all ordinary re pairs are made by the inhabitants of these sev eral divisions, while extraordinary repairs, as well as the maintenance of bridges, belong to the township at large. In other States, the unit of highway administration is the county or city.
The Legislature has power to commit the work of improving and repairing highways to private corporations. ,.1ceordingly, turnpike and similar companies receive from the State authority to construct roads and keep them in good repair, and to reimburse themselves by tolls levied upon the members of the public using the roads. By this system, the cost of maintaining proper roads is shifted from the property-owners of a particu lar territory to the traveling public; but the cost is still borne as a tax, which the State has a right to impose. It is also established that the Legislature of a State may lawfully authorize temporary obstructions in highways, and may delegate the exercise of this power to municipal corporations. Hence come city ordinances pro viding for permits to deposit building materials in city streets, to erect stands. to use apparatus for hoisting goods, and the like. Gas and water companies receive authority to excavate high ways and lay pipes: telegraph and telephone com panies are permitted to erect poles and string wires along public thoroughfares, and even railroad companies are allowed to lay tracks and run cars over their surface. If the use which such com panies are authorized to make of the street sub jects adjoining property to injuries not contem plated or provided for when the street was laid out, it may give the property-owners the right to compensation for these injuries from the users. The use of city and village streets for gas and water mains is generally deemed to be within the scope of the original dedication. hut not so in the ease of country highways. Railroads, on the other hand, are usually regarded as an en eroachment on the rights of the owner of the fee of a road, whether urban or rural, though the contrary hos usually been held in the case of street railways.
In England. teams meeting upon a highway turn to the left. In this country. they turn to the right. This usage of the road has received legislative sanction in some of our States, and penalties are imposed upon its violators. Con sult: Woo!rya]. The Law of Ways (2d ed., Lon don• 18471 ; Elliott, The Lou- of Bonds and Pireeis (Indianapolis. 1900); Birdseye, general Statuten of Yew York—Highway Lau' (New York, 1901).