HIGHWAYS. A highway is a public road over which all persons have full right of way—walking, riding, or driving. See Roads. Such roads in England for the most part either are of immemorial antiquity or have been created under the authority of an Act of Parliament. But a private owner may create a highway at common law by dedicating the soil to the use of the public for that purpose; and, apart from any special dedication, the using of a road for a number of years, without in- terruption, will support the presumption that the soil has been so dedicated, and the road will be to all intents and purposes a public highway. At common law the parish is required to maintain all highways within its bounds; but by special custom the obligation may attach to a particular township or district, and in certain cases the owner of land is bound by the conditions of his holding to keep a highway in repair. Breach of the obligation is treated as a criminal offence, and is prosecuted by indict- ment. Bridges, on the other hand, and so much of the highway as is immediately connected with them, are as a general rule a charge on the county; and by 22 Henry VIII. c. 5 the obligation of the county is extended to 300 yards of the highway on either side of the bridge. A bridge, like a highway, may be a burden on neighbouring land ratione tenure. Private owners so burdened may sometimes claim a special toll from passengers, called a “toll traverse.”
Extensive changes in the law of highways have been made by the recent Highway Acts, viz., The Highway Act, 1835 (5 and 6 Will. IV. c. 50), and the amending Acts of 1862 and 1864. It is no longer possible for a private owner, by dedicating a highway to the public, to make the charge of maintaining it a burden on the parish in all cases. To create a new highway of this character he must give three months’ notice of his intentions to the parish surveyor, and a meeting of vestry must then be called to consider whether the proposed highway is worth the expense of maintenance. Should the vestry decide against it, the charge of maintenance will not fall on the parish, unless the justices of the peace at the next highway sessions decide otherwise.
The leading principle of the Highway Act, 1835, is to place the highways under the direction of parish surveyors, and to provide for the necessary expenses by a rate levied on the occupiers of land. Two or more parishes may unite to form a district under a district surveyor, and large parishes may appoint more than one surveyor. It is the duty of the surveyor to keep the highways in repair ; and if a highway is out of repair, the surveyor may be summoned before justices and convicted in a penalty not exceeding £5, and ordered to complete the repairs within a limited time. The surveyor is likewise specially charged with the removal of nuisances on the highway, or any obstruction or injury rendering it less commodious to the public. A highway nuisance may be abated by any person, and may be made the subject of indictment at common law. The Act con- tains provisions simplifying the process by which a high- way may be widened, enlarged, diverted, or stopped. The amending Acts, while not interfering with the operation of the principal Act, authorize the creation of highway districts on a larger scale. The justices of a county may convert it or any portion of it into a highway district to be governed by a highway board, the powers and responsi- bilities of which will be the same as those of the parish surveyor under the former Act. The board consists of representatives of the various parishes, called ‘‘ way war- dens,” together with the justices for the county residing within the district. Salaries and similar expenses incurred by the board are charged on a district fund to which the several parishes contribute; but each parish remains separately responsible for the expenses of maintaining its own highways.
The Highway Act of 1835 specifies as offences for which the driver of a carriage ou the public highway may be punished by a fine, in addition to any civil action that may be brought against him,—riding upon the cart, or upon auy horse drawing it, and not having some other person to guide it, unless there be some person driving it ; negligence causing damage to person or goods being conveyed on the highway ; quitting his cart, or leaving control of the horses, or leaving the cart so as to be .an obstruction on the high- way ; not having the owner’s name painted up; refusing to give the same ; and not keeping on the left or near side of the road, when meeting any other carriage or horse. This rule does not apply in the case of a carriage meeting a foot- passenger, but a driver is bound to use due care to avoid driving against any person crossing the highway on foot. At the same time a passenger crossing the highway is also bound to use due care in avoiding vehicles, and the mere fact of a driver beiug on the wrong side of the road would not be evidence of negligence in such a case. When there is a public crossing in a street, the driver is bound to use special care ; and the expression has been used that a cross- ing is the special property of the foot-passengers.
The “rule of the road” given above is peculiar to the United Kingdom. Cuvoley’s treatise on the American Law of Torts states that “the custom of the country, in some States enacted into statute law, requires that when teams approach and are about to pass on the highway, each shall keep to the right of the centre of the travelled portion of the road.” The same appears to be the general rule on the continent of Europe.
The excessive use of the highway by acts which in moderation are lawful becomes a nuisance if it interferes with the public enjoyment of the roadway. Thus when a carrier, having warehouses on a public street, occupied one side of the street in loading and unloading his waggons several hours at a time, so that foot-passengers were incom- moded and no carriage could pass on that side, although there was room for two carriages on the opposite side, this was held to be a nuisance; and Lord Ellenborough held it to be a nuisance for stage coaches to stop in the street for three-quarters of an hour taking up and setting down passengers, for the “king’s highway was not to be used as a stable-yard.” In the same way, at common law a tramway laid along a highway is a public nuisance, although it may be shown to be a common convenience. The construction of tramways is now authorized by 33 and 34 Vict. c. 78.
The Acts 24 and 25 Vict. c. 70, and 28 and 29 Vict. c. 83, regulate the use of locomotives on turnpike and other roads. No engine, so constructed as to be a public or private nuisance, is protected by these Acts. When horses had been frightened by a traction engine, and the jury found that it was likely to frighten horses and that the defendant knew it, he was held liable in damages.
