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Title: The Road and the Roadside
Author: Burton Willis Potter
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Language: English
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THE ROAD
AND
THE ROADSIDE.
By
BURTON WILLIS POTTER.
BOSTON:
LITTLE, BROWN, AND COMPANY.
1886.
_Copyright, 1886_,
BY BURTON WILLIS POTTER.
UNIVERSITY PRESS:
JOHN WILSON AND SON, CAMBRIDGE.
TO
THE HONORABLE JOHN E. RUSSELL,
SECRETARY OF
THE MASSACHUSETTS BOARD OF AGRICULTURE,
These Pages are Respectfully Inscribed,
AS A TOKEN OF MY LOVE AND ESTEEM FOR HIM AS A TRUE FRIEND,
A CLASSICAL SCHOLAR, AND AN ELOQUENT ORATOR,
WHOSE SPEECHES AND WRITINGS HAVE AIDED POWERFULLY
IN BRINGING ABOUT A REVIVAL OF AGRICULTURE,
AND IN CREATING AMONG THE PEOPLE
A LOVE OF AGRICULTURE AND
RURAL LIFE.
Transcriber's Note: The asterisks in footnotes 89 and 92 have do not
have corresponding references in the text.
PREFACE.
The chapters of this book relating to the laws of public and private
ways were written and read as a lecture at the Country Meeting of the
Massachusetts Board of Agriculture, in December, 1885, at Framingham,
and have since been published in the "Report on the Agriculture of
Massachusetts for the Year 1885."
The laws as herein stated are, as I believe, the present laws of
Massachusetts relative to public and private ways, and therefore they
may not all be applicable to the ways in other States; but inasmuch as
the common law is the basis of the road law in all the States, it will
be found that the general principles herein laid down are as applicable
in one State as in another.
Believing that good roads and the love of rural life are essential to
the true happiness and lasting prosperity of any people, these pages
have been written with the sincere desire to do something to improve
our roads and to encourage country life; and they are now given to the
public with the hope that they will exert some little influence in
promoting these objects.
B. W. P.
WORCESTER, MASS.,
_May, 1886_.
CONTENTS.
CHAPTER I.
HISTORY, IMPORTANCE, AND SIGNIFICANCE OF ROADS.
PAGE
Roads the symbols of progress and civilization. Macaulay and Bushnell
on the value of public highways. The first sponsors of art, science,
and government were the builders of roads. The ancient highway between
Babylon and Memphis. The Carthaginians as road-makers. Roman roads:
their construction, extent, and durability; their instrumentality in
giving Rome her pre-eminence in the ancient world; their mode of
construction described. Ponderous roads in China. Magnificent highways
in the ancient empires of Mexico and Peru. Prescott's description of
the great roads in Peru. Bad condition of the English roads in the
sixteenth century. With the revival of modern civilization the
improvement of the public highways has engaged the thought of public
and scientific men. Advantages of good roads generally and especially
as the means of a proper distribution of population. 1-11
CHAPTER II.
LOCATION.
Best possible location desirable. Permanent nature of roads. Many of
the ancient roads are still travelled by the people of to-day. The law
of the survival of the fittest applicable to the location of roads. The
makers of a good road often build better than they know. Roads may be
located in three different ways. The old Romans and the modern Latin
nations locate in straight lines. The English-speaking people usually
locate their roads in curved lines. Curved roads have many advantages
over straight ones, as good grades are more desirable than straight
roads. 12-16
CHAPTER III.
CONSTRUCTION.
Importance of drainage. Good roads impossible without proper drainage.
Proper width of roads for travel. They should be wide enough to admit
of foot-paths at their sides. Every road should be crowned sufficiently
to run off the surface water, but not enough to make the road-bed too
unlevel. The golden mean is to be sought. A macadamized road the
cheapest and best for our climate and soil. Proper foundation and depth
of stone covering for such a road. The Telford road sometimes the best
for clayey soil. Its construction. They will be the future roads of our
country. Earth-roads now generally prevail. How to make them, and how
to keep them up. 17-21
CHAPTER IV.
REPAIRS.
Economy and public convenience require roads to be kept up the year
round. Advantages of a road always in good condition. Evils of the
present system of annual or semi-annual repairs. The present system
described. Advantages of the continual-repair system illustrated by the
great turnpike from Virginia City to Sacramento, by Baden, Germany,
France, Switzerland, Great Britain, and towns in the vicinity of our
great cities. This system alone will prevail when the principles of
road-making become better known. 22-27
CHAPTER V.
LAWS RELATING TO THE LAYING OUT OF WAYS.
For what purposes ways may be laid out, and how they may be
established. May be laid out by town or county authorities.
Distinction between town ways and public highways. When the public
officials refuse to lay out ways, parties interested may appeal. How
damages are avoided and costs paid. 28-31
CHAPTER VI.
LAW AS TO REPAIRS.
How and by whom ways are to be kept in repair. The duties and rights
of the public authorities in making repairs. The boundaries of
highways. The rights of travellers as to the removal of obstructions
in the road. Unauthorized persons have no right to repair ways.
Highways to be protected by proper railings. How wide roads should
be. 32-35
CHAPTER VII.
GUIDE-POSTS, DRINKING-TROUGHS, AND FOUNTAINS.
Guide-posts to be erected and maintained at suitable places. Penalties
attached to neglect or refusal to erect and maintain them. Town
officers may establish and maintain drinking-troughs, wells, and
fountains. Their duty in this respect. 36-38
CHAPTER VIII.
SHADE TREES, PARKS, AND COMMONS.
Towns and cities have authority to beautify the roadsides and public
squares. May plant trees and encourage their planting by adjoining
owners and improvement societies. The rights of improvement societies
and the penalties for interfering with their work. Shade trees and
other ornamental fixtures not to be injured or destroyed. 39-41
CHAPTER IX.
PUBLIC USE OF HIGHWAYS.
How roads are to be used by the public and adjoining owners. Due care
to be used by travellers. Masters responsible for their servants'
acts. No responsibility for inevitable accidents. What is a proper
rate of speed. 42-44
CHAPTER X.
"THE LAW OF THE ROAD."
Rules for the meeting, passing, and conduct of teams on the road.
These rules not inflexible. When they may be deviated from. Each
traveller has a right to a fair share of the road. The rights of light
and heavily loaded vehicles. When a traveller with team may use track
of street railway. 45-49
CHAPTER XI.
EQUESTRIANS AND PEDESTRIANS.
Equestrians must give way for vehicles. "The law of the road" does
not apply to them by the terms of the statutes, but they should
observe it as far as practicable. Pedestrians have a right to walk
on carriage-way. In cities they should walk on the sidewalks. They
must use due care. Their rights on cross-walks. They are not subject
to "the law of the road." They may walk out on Sunday for their
health. 50-53
CHAPTER XII.
OMNIBUSES, STAGES, AND HORSE-CARS.
Carriers of passengers for hire are bound to use due diligence in
providing suitable coaches, harnesses, horses, and coachmen. They must
not leave their horses unhitched. If they receive passengers when
their coaches are already full, they must use increased care.
Passengers must pay fare in advance, if demanded. 54-56
CHAPTER XIII.
PURPOSES FOR WHICH HIGHWAYS MAY BE USED.
Public ways are mainly for the use of travellers, but they may be used
for other public purposes, gas, water-pipes, sewers, street railways,
telephone and telegraph lines, etc. Every one may use the highway to
his own advantage, but with regard to the like rights of others. What
animals and vehicles are allowed upon the road. Towns and cities may
regulate by by-laws the use and management of the public ways. 57-61
CHAPTER XIV.
USE OF HIGHWAYS BY ADJOINING OWNERS.
They own the fee in the land, and are entitled to all the profits of
the freehold, the grass, the trees, fruit, etc. If the land in the way
is subjected to any new servitude, like an elevated railroad or
telegraph or telephone lines, they are entitled to damages. They can
load and unload vehicles in connection with their business on their
premises, but it must be done in such a manner as not to incommode the
travelling public. They must not fill up the roadside with logs, wood,
or rubbish of any kind. 62-69
CHAPTER XV.
PRIVATE WAYS.
Private ways may be established and discontinued in the same manner as
public ways. The owner of such way must keep it in repair. The owner
of the soil may use it for agricultural purposes, and keep up bars and
gates. "The law of the road" applies to private ways. 70-72
CHAPTER XVI.
DON'T.
Don't drink intoxicating liquors when travelling. Don't forget to
look out for the engine while the bell rings. Don't take animals
affected by contagious diseases on the public way. Don't go upon the
road if you are afflicted with a contagious or infectious disease.
Don't go out sleigh-riding without bells attached to your harness.
Don't try to drive a horse on the road unless you know how to manage
him. Don't ride with a careless driver. Don't use a vicious horse,
or let him to be used on the road. Don't let your horses get beyond
your control. Don't encroach upon or abuse the highway. Don't ride
on the outside platform of a passenger coach. Don't jump off a coach
when it is in motion. Don't wilfully break down, injure, remove, or
destroy a milestone, mile-board, or guide-post. Don't go out of the
road-way upon adjoining land. Don't suppose that everything that
frightens your horse or causes an accident is a defect in the
highway. Don't fail to give notice in writing if you meet with an
accident on the road. Don't convey land encumbered with a right of
way. Don't keep a barking dog. 73-83
CHAPTER XVII.
FOOT-PATHS.
Necessity of air, sunlight, and exercise. The progenitors of every
vigorous race have found in forest and wilderness the sources of
their strength. The Israelites, Greeks, Romans, Dutch, Anglo-Saxons.
The teachings of Nature essential to the development of the human
mind. Job, David, Plato, Aristotle, Christ, Wordsworth. Foot-paths
tend to bring people into the open air and into communion with
Nature. The by-ways of old England. Towns and cities should lay out
foot-paths. 84-88
CHAPTER XVIII.
WITHIN AND WITHOUT THE ROADSIDE.
Every dweller under obligation to maintain neatness and order within
and without his roadside. Unselfish exertion in this behalf pays. He
who beautifies the roadside benefits mankind and himself alike. A
dirty and shabby dwelling gives a traveller a mean idea of its
inmates. A cosey and clean house always speaks well for its inmates.
Every homestead should be adorned with trees. The beauty and utility
of trees. They are inseparable from well-tilled land and beautiful
scenery. Wayside shrubbery: its use and abuse; it should be allowed
where green grass will not grow. 89-94
CHAPTER XIX.
ENJOYMENT OF THE ROAD.
A traveller should have a hopeful and sunshiny disposition. He should
be in harmony with Nature; he should have an observing eye to enjoy
the _latent_ enjoyments of the way. How the observing faculties may be
cultivated. The pleasures incident to knowing how to appreciate the
beautiful in Nature. The different degrees of enjoyment in the same
situation. The love of Nature the sign of goodness of heart. Ruskin,
Wordsworth, Christ. What an observing traveller can see to admire and
enjoy on the road, grass, flowers, trees, as reminders of human
beings, domestic and pastoral scenery, mountains, animal and vegetable
life, sun and sunlight, latent enjoyments in himself. 95-104
THE ROAD
AND
THE ROADSIDE.
CHAPTER I.
HISTORY, IMPORTANCE, AND SIGNIFICANCE OF ROADS.
The development of the means of communication between different
communities, peoples, and races has ever been coexistent with the
progress of civilization. Lord Macaulay declares that of all
inventions, the alphabet and printing-press alone excepted, those
inventions which abridge distance have done most for the civilization
of our species. Every improvement of the means of locomotion benefits
mankind morally and intellectually as well as materially.
"The road," Bushnell says, "is that physical sign or symbol by which
you will best understand any age or people. If they have no roads,
they are savages; for the road is the creation of man and a type of
civilized society. If you wish to know whether society is stagnant,
learning scholastic, religion a dead formality, you may learn something
by going into universities and libraries, something also by the work
that is doing on cathedrals and churches or in them, but quite as much
by looking at the roads; for if there is any motion in society, the
road, which is the symbol of motion, will indicate the fact."
As roads are the symbols of progress, so, according to the philosophy
of Carlyle, they should only be used by working and progressive people,
as he asserts that the public highways ought not to be occupied by
people demonstrating that motion is impossible. Hence, when we trace
back the history of the race to the dawn of civilization, we find that
the first sponsors of art and science, commerce and manufacture,
education and government, were the builders and supporters of public
highways.
The two most ancient civilizations situated in the valleys of the Nile
and the Euphrates were connected by a commercial and military highway
leading from Babylon to Memphis, along which passed the war chariots
and the armies of the great chieftains and military kings of ancient
days, and over which were carried the gems, the gold, the spices, the
ivories, the textile fabrics, and all the curious and unrivalled
productions of the luxurious Orient. On the line of this roadway arose
Nineveh, Palmyra, Damascus, Tyre, Antioch, and other great commercial
cities.
On the southern shores of the Mediterranean the Carthaginians built up
and consolidated an empire so prominent in military and naval
achievements and in the arts and industries of civilized life, that for
four hundred years it was able to hold its own against the
preponderance of Greece and Rome; and as might have been expected, they
were systematic and scientific road-makers from whom the Romans learned
the art of road-building.
The Romans were apt scholars, and possessed a wonderful capacity not
only to utilize prior inventions but also to develop them. They were
beyond question the most successful and masterful road-builders in the
ancient world; and the perfection of their highways was one of the most
potent causes of their superiority in progress and civilization. When
they conquered a province they not only annexed it politically, by
imposing on its people their laws and system of government, but they
annexed it socially and commercially, by the construction of good roads
from its chief places to one or more of the great roadways which
brought them in easy and direct communication with the metropolis of
the Roman world. And when their territory reached from the remote east
to the farthest west, and a hundred millions of people acknowledged
their military and political supremacy, their capital city was in the
centre of such a network of highways that it was then a common saying,
"All roads lead to Rome." From the forum of Rome a broad and
magnificent highway ran out towards every province of the empire. It
was terraced up with sand, gravel, and cement, and covered with stones
and granite, and followed in a direct line without regard to the
configuration of the country, passing over or under mountains and
across streams and lakes, on arches of solid masonry. The military
roads were under the pretors, and were called pretorian roads; and the
public roads for travel and commercial traffic were under the consuls,
and were called consular roads. These roads were kept entirely
distinct; the pretorian roads were used for the marching of armies and
the transportation of military supplies, and the consular roads were
used for traffic and general travel. They were frequently laid out
alongside of each other from place to place, very much as railroads and
highways are now found side by side. The consular roads were generally
twelve feet wide in the travelled pathway, with a raised footway on the
side; but sometimes the footway was in the middle of the road, with a
carriage-way on each side of it. The military roads were generally
sixty feet wide, with an elevated centre, twenty feet wide, and slopes
upon either side, also twenty feet wide. Stirrups were not then
invented, and mounting stones or blocks were necessary accommodations;
and hence the lines of the roads were studded with mounting-blocks and
also with milestones. Some of these roads could be travelled to the
north and eastward two thousand miles; and they were kept in such good
repair that a traveller thereon, by using relays of horses, which were
kept on the road, could easily make a hundred miles a day. Far as the
eye could see stretched those symbols of her all-conquering and
all-attaining influence, which made the most distant provinces a part
of her dominions, and connected them with her imperial capital by
imperial highways.
The Romans not only had great public highways, but they possessed a
complete and systematic network of cross-roads, which connected
villages, and brought into communication therewith cultivated farms and
prosperous homesteads. In Italy alone it is estimated that they had
about fourteen thousand miles of good roads. Their laws relating to the
construction and maintenance of highways were founded in reason and a
just conception of the uses and objects of public ways; and they are
the basis of modern highway legislation. By their law the roads were
for the public use and convenience, and their emperors, consuls, and
other public officials were their conservators. They were built at the
public expense, under the supervision of professional engineers and
surveyors, and kept in repair by the districts and provinces through
which they passed.
But during the dark ages, when arts were lost, when popular learning
disappeared or found shelter only in cloisters and convents, when
commercial intercourse between nations vanished, and when civilization
itself lay fallen and inert, these magnificent Roman roads were unused
and left to the destructive agencies of time and the elements of
Nature. Rains and floods washed away and inundated their embankments;
forests and rank vegetation overgrew and concealed them; winds covered
them with dust and heaps of sand; and little by little in the process
of ages their hard surfaces and massive foundations were somewhat
broken and caused to partially decay. That their remains still exist in
every part of the world which ever bore up the Roman legions is
conclusive evidence that they were built by master workmen who realized
that they were responsible to posterity and to the eternal powers.
"In the elder days of Art
Builders wrought with greatest care
Each minute and unseen part;
For the gods see everywhere."
In China, at one time, labor was so abundant that it was kept employed
in constructing great walls and ponderous roads. The road-bed was
raised several feet above the level of the ground by an accumulation of
great stones, and then covered with huge granite blocks. It was found
that in time the wheels of vehicles wore deep ruts in the stones, while
the travelled part of the road became so smooth that it was almost
impossible for animals to stand thereon.
In the ancient empires of Mexico and Peru, where there were no beasts
fit for draught or for riding, magnificent roads were constructed for
the treble purpose of facilitating the march of armies, accommodating
the public traffic, and ministering to the convenience and luxury of
the lordly rulers. In Peru two of these roads were from fifteen hundred
to two thousand miles long, extending from Quito to Chili,--one by the
borders of the ocean, and the other over the grand plateau by the
mountains. Prescott says: "The road over the plateau was conducted over
pathless sierras buried in snow; galleries were cut for leagues through
the living rock; rivers were crossed by means of bridges that swung
suspended in the air; precipices were scaled by stairways hewn out of
the native bed; ravines of hideous depth were filled up with solid
masonry; in short, all the difficulties that beset a wild and
mountainous region, and which might appall the most courageous engineer
of modern times, were encountered and successfully overcome. Stone
pillars in the manner of European milestones were erected at stated
intervals of somewhat more than a league all along the route. Its
breadth scarcely exceeded twenty feet. It was built of heavy flags of
freestone, and in some parts, at least, covered with a bituminous
cement, which time has made harder than the stone itself. In some
places where the ravines had been filled up with masonry, the mountain
torrents, wearing on it for ages, have gradually eaten a way through
the base, and left the superincumbent mass--such is the cohesion of the
materials--still spanning the valley like an arch.
"Another great road of the Incas lay through the level country between
the Andes and the ocean. It was constructed in a different manner, as
demanded by the nature of the ground, which was for the most part low,
and much of it sandy. The causeway was raised on a high embankment of
earth, and defended on either side by a parapet or wall of clay; and
trees and odoriferous shrubs were planted along the margin, regaling
the sense of the traveller with their perfume, and refreshing him by
their shades, so grateful under the burning sky of the tropics.
"The care of the great roads was committed to the districts through
which they passed, and a large number of hands was constantly employed
to keep them in repair. This was the more easily done in a country
where the mode of travelling was altogether on foot; though the roads
are said to have been so nicely constructed that a carriage might have
rolled over them as securely as on any of the great roads of Europe.
Still, in a region where the elements of fire and water are both
actively at work in the business of destruction, they must without
constant supervision have gradually gone to decay. Such has been their
fate under the Spanish conquerors, who took no care to enforce the
admirable system for their preservation adopted by the Incas. Yet the
broken portions that still survive here and there, like the fragments
of the great Roman roads scattered over Europe, bear evidence of their
primitive grandeur, and have drawn forth eulogium from the
discriminating traveller; for Humboldt, usually not profuse in his
panegyrics, says, 'The roads of the Incas were among the most useful
and stupendous works ever executed by man.'"
With the revival of human thought and civilization after the Middle
Ages, the improvement of the roads engaged the attention of public and
scientific men, and became once more an object of government; but for a
long time the rulers who concerned themselves about roads thought more
about repressing the crimes of violence and extortion thereon than they
did about improving their condition for travel. The first act of the
English Parliament relative to the improvement of roads in the kingdom
was in 1523; yet in 1685 most of the roads in England were in a
deplorable condition.
Macaulay says that on the best highways at that time the ruts were
deep, the descents precipitous, and the way often such that it was
hardly possible to distinguish it in the dark from the unenclosed heath
and fen which lay on both sides. It was only in fine weather that the
whole breadth of the road was available for wheeled vehicles; often the
mud lay deep on the right and on the left, and only a narrow track of
firm ground rose above the quagmire. It happened almost every day that
coaches stuck fast until a team of cattle could be procured from some
neighboring farm to tug them out of the slough. But to the honor of
England, this condition of her roads was not allowed to continue very
long. Although her progress in trade and prosperity has been
marvellously rapid, yet such progress can be measured by the
improvement of her roads, which are now unsurpassed anywhere in the
world.
Beyond question, internal communications are of vital importance to
every nation, and good roads are a prime necessity to every town or
city. A good road is always a source of comfort and pleasure to every
traveller. It is also a source of great saving each year in the wear
and tear of horse-flesh, vehicles, and harnesses. Good roads to market
and neighbors increase the price of farm produce, and bring people into
business relations and good fellowship, and thereby enhance in value
every homestead situated in their neighborhood. They cause a proper
distribution of population between town and country. For many years in
this country there has been a movement of population from the rural
districts into the cities and manufacturing villages. Many ancestral
homesteads have been deserted for promising "fresh woods and pastures
new" in the commercial world. This centralization of population is
evidently a violation of economic laws, and when carried too far
results in business depression, in the multiplication of tramps, and in
the origination and development of industrial and social troubles. The
remedy for this state of affairs is found in the readjustment and
proper distribution of population between town and country. When men,
sick of waiting on waning business prospects, turn to the soil as their
only refuge from non-employment and surplus productions of factories,
and reoccupy and rehabilitate deserted or run-down farms, then business
revives, and the wheels of industry and enterprise revolve steadily and
with increased velocity at each revolution. Bad roads have a tendency
to make the country disagreeable as a dwelling-place, and a town which
is noted for its bad roads is shunned by people in search of rural
homes. On the other hand, good roads have a tendency to make the
country a desirable dwelling-place, and a town which is noted for
its good roads becomes the abode of people of taste, wealth, and
intelligence. Hence it behooves every town to make itself a desirable
place of residence; for many people are always puzzling themselves over
the problem of where and how to live, and those towns which have their
floors swept and garnished and their lamps trimmed and burning ready to
receive the bride and bridegroom, will be most likely to attract within
their borders the seekers of farm life and rural homes. We now live in
the city and go to the country; but we should live in the country and
go to the city. This is "a consummation devoutly to be wished;" but it
can never be brought about until good roads connect the cities and
villages with the green fields and beautiful scenery of the country.
All money and labor expended upon them result immediately in a
convenience and benefit to the whole community. Every one should deem
it an honor to be able to do anything to improve and beautify the
highways of his town. The Lacedemonian kings were _ex officio_ highway
surveyors, and among the Thebans the most illustrious citizens were
proud to hold that office; and a few years ago Horatio Seymour, of New
York, said that his only remaining ambition for public life was to be
regarded as the best path-master in Oneida County.
CHAPTER II.
LOCATION.
When a new road is laid out it is important that it should be located
in the best attainable place, considering the natural formation of the
surrounding country; for when a highway is once established it is
impossible to say how long the tide of humanity and commercial traffic
will seek passage over it. While the ordinary processes of
Nature--rain, thaw, and frost--are ever at work lowering the hills and
mountains and filling up the valleys and lowlands, the public highways
of a country remain in the same relative positions from age to age.
The great commercial and military highway which in the early dawn of
Roman history led from the banks of the placid Euphrates to the banks
of the many-mouthed Nile--over which Abraham once wended his weary
steps on his way to Canaan, over which the hosts of Xerxes and the
brave phalanxes of Alexander the Great once passed in all the pride and
glory of war, over which the wise men of the East probably journeyed in
search of him who was born King of the Jews, over which Mary fled with
Christ in her flight into Egypt, and along which the early Christians
travelled as they went forth to preach the fatherhood of God and the
brotherhood of men--is to-day the highway over which is carried on the
overland intercourse between the Mediterranean and the Persian Gulf.
Many of the present roads in Italy and the neighboring countries are
identical with the roads over which Cæsar, Cicero, and other Romans
travelled in the olden days; and the modern British roads are the same,
in many cases, as those used by the ancient Britons before the
Anglo-Saxon conquest.
The law of the survival of the fittest is applicable to the location of
roads, and any well-located road is liable to be used as a public way
during the occupancy of the earth by the human race; and if it is not
made famous by the passage of illustrious persons or sanctified by the
footsteps of saints, yet it is liable to be travelled through coming
ages by "mute inglorious Miltons" and by "care-encumbered men." It
sometimes happens that men and women, in doing faithfully and well the
nearest duty, perform work which turns out better than they expect.
"The hand that rounded Peter's dome,
And groined the aisles of Christian Rome,
Wrought in a sad sincerity;
* * * *
He builded better than he knew."
The originators of many great reforms in law and religion, in working
to establish principles applicable and needful to local issues, have
thereby, unconsciously to themselves, established principles which have
proved beneficial and applicable to the whole human race. In the stress
of trying times we have discovered in the constitution of our country
latent powers which its framers never dreamed were there. Thus it is
with the humble occupation of road-building. A road constructed for the
convenience of some primitive community or to gratify the caprice of
some rich man or lordly ruler becomes often in after years an Appian
Way for public travel and commercial intercourse.
A road may be located in one of three ways. It may be laid out in a
straight line by crossing lowlands in the mud and going over hills at
steep grades. The ancient Britons, like the early settlers in this
country, established their homesteads and villages on commanding
situations, and ran their roads and bridle-paths in direct courses by
their habitations. The Romans, possessors of great wealth and abundant
slave-labor, built their military and public roads in direct lines from
place to place, regardless of expense. In this way they shortened
distances somewhat, but their roads must have been constructed at
enormous expense in money and labor. Their roads were marvels of
engineering skill and workmanship, which even now, after the lapse of
eighteen centuries, impress every thoughtful observer with the idea
that he is in the presence of the work of the immortals. They threw
arched bridges of solid masonry over rivers and across ravines; they
cut tunnels through mountains, and sometimes carried their roads
underground for the sole purpose of shelter from the sun; they levelled
heights and made deep cuts through hills; and when they came to a marsh
they built a causeway high enough and strong enough to make it safe and
dry at all seasons of the year. This mode of location is still followed
in the Latin countries of Italy, France, and Spain, where many of the
roads are identical with the old Roman roads.
The other mode of locating a highway is to seek the best attainable
grade the country will permit of by winding through valleys and around
and across hills. There is obviously one advantage to a perfectly
straight road between two places: _it is the nearest route_. But this
is about the only advantage a straight road has over a curved one. In a
hilly country a straight road is frequently no shorter than a curved
one, because the distance around a hill is generally no greater than
over it, as the length of a pail-handle is the same whether it is
vertical or in a horizontal position. In an uneven country a straight
road with anything like the same grade as the curved road can only be
constructed at enormous and unnecessary expense and labor. Even in a
level country a road curved sufficiently to give variety of view and to
conform to Hogarth's "line of beauty" is preferable to a perfectly
straight road, which is always tedious to the traveller.
"The road the human being travels,
That on which blessing comes and goes, doth follow
The river's course, the valley's playful windings,
Curves round the corn-field and the hill of vines."
Moreover, we are told by competent engineers that the difference in
length between a straight and a slightly curved road is very small.
Thus, if a road between two places ten miles apart was made to curve
so that the eye could nowhere see farther than a quarter of a mile
of it at once, its length would exceed that of a perfectly straight
road between the same points by only about one hundred and fifty
yards.
But, in any event, in road-making mere straightness should always
yield to a level grade, even if thereby the distance is greatly
increased; for on a good grade a horse can draw rapidly and easily a
load which it would be impossible for him to draw on a steep grade.
It is an accepted maxim by road-engineers that the horizontal length
of a road may be advantageously increased, to avoid an ascent, by at
least twenty times the perpendicular height which is to be thus
saved; that is, to escape a hill a hundred feet high, it would be
proper for the road to make such a circuit as would increase its
length to two thousand feet.
Hence it is apparent that the ordinary road in a hilly and uneven
country should follow the streams as far as possible, as Nature has
located them in the places best adapted for highways; and when hills
are found on the line of a road they should be surmounted by passing
around and across them at the easiest grades possible rather than
over them at steep grades.
CHAPTER III.
CONSTRUCTION.
Suitable drainage is the first requisite of a good road, as with our
climate and soil it is impossible to have a road in a satisfactory
condition at all seasons of the year unless the same is well
drained. In building a new road provisions should be made to get rid
of all surface water, and in wet land of the water in the soil, by
ditches and drains sufficient to dispose of it in a thorough manner;
and in repairing an old road it frequently happens that its
condition can be greatly improved and sometimes perfected by simply
providing proper drainage for it. It is not sufficient to have
ditches on each side of the road; for if the water stands in them it
is liable to make the road muddy and to weaken its substratum. The
ditches themselves should be thoroughly drained, and all the water
which accumulates in them should be carried into the natural
watercourses of the country, or at any rate beyond the limits of the
highway.
Every carriage-road ought to be wide enough at nearly all points to
allow two vehicles to pass each other in safety. Whether it should
be wider than that depends upon its location and its importance as a
public thoroughfare. Any unnecessary width should be avoided, except
on pleasure and showy boulevards, because thereby land is wasted,
and labor and cost in construction and repair are increased. All
important highways should be wide enough to admit of footpaths five
or six feet wide on each side, and of a macadamized or travelled way
commensurate to the public traffic thereon.
If a road is to be made wider than two vehicles require, it should
be made wide enough to accommodate one or more vehicles; for any
intermediate width causes unequal and excessive wear, and therefore
is false economy.
The road-bed should generally be raised above the level of the
surrounding land, in order that it may be as free as possible from
water; and it should "crown" sufficiently to allow all the surface
water, to find its way quickly into the side ditches. If it is not
crowned enough, it soon becomes hollow, and therefore either muddy
or dusty, and in times of heavy rains or thaws the water stands or
flows in the middle of the road. If it is crowned too much, the
drivers of vehicles will seek the middle of the road in order to
keep their vehicles in level positions, and consequently the
excessive travel in one part of the road soon wears it into ruts in
which water accumulates, and carriages in meeting are forced to
travel on a side hill, which causes unnecessary wear to the road by
sliding down towards the ditches. This sliding tendency greatly
augments the labor of the horses and the wear and tear of the
carriages. Evidently, then, the wise course to pursue in the matter
of crowning the road is to hit the golden mean. Much of success in
life depends upon striking the golden mean, for human experience
teaches that those who follow in this pathway are apt to find
themselves among the happy and the successful. The advice which the
wise old Horace made a sage seaman give two thousand years ago is
good for road-makers of to-day,--
"Licinius, trust a seaman's lore:
Steer not too boldly to the deep;
Nor dreading storms by treacherous shore
Too closely creep."
It ought therefore to be an accepted maxim in road-making that the
road-bed should be so constructed as to induce vehicles to travel it
equally in every part.
For our climate and soil, no doubt, a macadamized road is the
cheapest and best for general travel. This is made by covering the
bottom of the road-bed with stones broken into angular pieces to a
depth of from four to twelve inches. The bottom of the road-bed
should be solid earth, and crowned sufficiently to carry off all
water that may reach it. The depth of the stone coating may properly
vary from four to twelve inches, as required by the nature of the
soil, the climate, and the travel on it; and the size of the broken
stones may also be varied to meet the requirements of the road. If
there is to be heavy travel on the road, the stone coating should be
thicker than on a road over which only lightly loaded teams are
expected to pass; and in the former case the broken stones should be
larger than in the latter case. In any event, the top of the stone
coating should be composed of stones broken into small fragments. A
coating, from four to six inches in depth, of broken stones from one
to two inches in diameter is ordinarily sufficient to make a hard,
dry, and beautiful country-road, if kept up at all seasons of the
year. Flat or round stones should never be used, because they will
not unite and consolidate into a mass, as small angular stones will
do. When travel is first admitted upon the stone coating, the ruts
should be filled up as soon as formed; or what is better, a heavy
roller should be used until the stones have become well
consolidated.
Sometimes in wet or clayey soil it is well to put at the bottom of
the stone coating a layer of large stones, set on their broadest
edges and lengthwise across the road in the form of a pavement. This
is called a Telford road, and has advantages over the McAdam road in
a soil retentive of moisture, as the layer of large stones operates
as an under drain to the stone coating above it.
It is undoubtedly true that the McAdam or Telford road is the best
road for all practical purposes in this country, and will be the
country road of the future; yet it is also true that the most of our
highways are mere earth-roads, and will probably remain such for
many years, and it is therefore desirable that they should be
constructed as well as they can be made. It is an admitted canon of
the road-making art, that a road ought to be so hard and smooth that
wheels will roll easily over it and not sink into it, so dry and
compact that rain will not affect it beyond making it dirty, and its
component parts so firmly moulded together that the sun cannot
convert them into deep dust. Therefore the travelled part of an
earth-road should not be composed of loam fertile enough for a
corn-field, nor of sand deep enough for a beach. If the road runs
through sandy land, it can be greatly and cheaply improved by
covering it with a few inches of clayish soil; and if it runs
through clayey land, a similar application of sand will be
beneficial. A gravelly soil is usually the best material for an
earth-road, and when practicable every such road should be covered
with a coating of it. The larger gravel, however, should never be
placed at the bottom and the smaller at the top, as the frost and
the vehicles will cause the large gravel to rise and the small to
descend, like the materials in a shaken sieve, and the road will
never become smooth and hard.
CHAPTER IV.
REPAIRS.
After a road is located and constructed, economy as well as public
convenience demands that it be kept in good condition the year
round. If a road is allowed to go for several months at a time
without repairs, ruts and holes are likely to form on its surface,
and frequently the middle becomes lower than the sides. Then, in
order to put it in good condition again, a great deal of work and
expense are necessary, whereas if every break is repaired
immediately, much less labor and expense are required to keep up the
road for the same length of time, besides the increased advantage
and convenience of a good road from day to day.
No doubt our roads could be kept in better condition than at present
without any additional expense, by the application of good sense and
business principles in their management. The present system in
nearly all our country towns consists in dividing up the roads into
districts, and appointing a highway surveyor for each district, with
a stated allowance of money to expend on repairs; and sometimes the
tax-payer residing in the district has a right to work out his road
tax. This surveyor is usually a farmer, who is very busy during
planting-time in the spring, and during the haying and harvesting
seasons; and consequently he works upon the roads between the
planting and the haying seasons, or in the autumn after he has
finished the fall work upon his farm. It sometimes happens that he
works out all the money allowed him in early summer, and then
nothing more is done for a year.
If a road is only to be repaired once a year, the work ought to be
done in the spring, when the soil is moist and will pack together
hard, and not in the summer, when it is dry and turns easily to
dust, nor in the late autumn, when the fall rains make it muddy. The
surveyor generally makes the repairs by ploughing up the road-bed
and smoothing it off a little, or else by ploughing up the dust,
turf, and stones alongside the road-bed, and scraping the same upon
it. After this is done he goes about his farm work.
The stones in the road soon begin to work up to the surface, and
remain there like so many footballs for every horse to kick as he
passes over them. A horse-path naturally forms in the centre of the
road, and wheel-ruts upon either side, which make excellent channels
for the water to run in during every rain-storm. At first the water
finds its way over the water-bars in small quantities; but the
channels increase in depth with every shower, and soon during every
hard rain there are from one to three streams of water running over
the road-bed from the top to the bottom of nearly every hill, and as
a consequence the road is washed all to pieces. The road then
generally remains in this condition until the next fall, and
sometimes until the next spring. When a road is repaired in this
way, it follows as a matter of course that it is in a bad condition
all the year round. Just after repairs the road is wretched, for it
is then in better condition to be planted than to be travelled over;
when trodden down a little, the wash of the rains and the loose
stones make it bad again; it then grows worse and worse until
another general repair makes it wretched again, and so on _ad
infinitum_. The only way to remedy this state of affairs is to
change the system.
There should be only one highway surveyor for the whole town, with
authority to supply such men and teams as may be necessary to keep
the roads in a good state of repair. Let them not only work in the
early summer and fall, but at all times when there is anything which
needs to be done to the roads. A few shovels of dirt and a little
labor in the nick of time will do more towards keeping a road in
good condition than whole days of ploughing and scraping once or
twice a year only. Every good housewife knows that there is a world
of truth in the old maxim, "A stitch in time saves nine." The
managers of all our well-conducted railroads understand this. They
have a gang of men pass often over each section of the roads.
What would be said of a mill-owner who should let his milldam wash
away once or twice each year, and then rebuild it instead of keeping
it in constant repair? The proprietors of the great turnpike road
from Sacramento to Virginia City in California, which runs mainly
over mountains a distance of one hundred and fifty miles, and has an
annual traffic of seven or eight thousand heavy teams, have found by
careful experiment that the cheapest way to keep that great road in
good condition is to have every portion of it looked after every
day, and during dry weather every rod of it is sprinkled with water.
This continual-repair system was adopted in Baden, Germany, 1845. It
was soon found that it was less expensive and more satisfactory than
the old system of annual repairs. Other European countries soon
found it to their advantage to follow Baden's example in this
respect; and now the new system is in universal use in all the
civilized nations of Europe. As a consequence the roads in those
countries as a general thing are in splendid condition throughout
the year. They are on an even grade, and as smooth as a racing-track
in this country. The poorest roads in France, Germany, Switzerland,
or Great Britain are as good as the best of our own. They are nearly
all macadamized, and are kept in continuous repair by laborers and
competent engineers and surveyors, who give their sole labor and
attention to the roads as a business throughout the year.
But it is not necessary to go to Europe to prove the superiority of
the new system over the old. Many towns in this country, especially
those situated in the vicinity of the large cities, have adopted the
new system, and find by experiment that it is better than the old.
An intelligent citizen and town official of Chelmsford, Mass., Mr.
Henry S. Perham, thus describes the operation of the old and the new
system in that town: "Until 1877 the old highway district system,
common in the New England country towns, was in vogue here. Eleven
highway surveyors were chosen annually in town-meeting, who had
charge of the roads in their respective districts; and although the
town appropriated money liberally for highway repairs, the roads
seemed to be continually growing worse, owing to the superficial
manner in which the repairs were made. In 1877 the town adopted an
entirely different plan for doing the work. The plan was to choose
one surveyor for the whole town, who was to have charge of all the
roads, and the town to purchase suitable teams and implements to be
kept at the town farm. This is now the ninth year in which this
system has been in practice, and the result of the change has been
most satisfactory. The advantages are that the surveyor is chosen
for his especial fitness for the work. The men under him are mostly
employed by the month and boarded at the town farm, where the teams
are also kept. A force now costing the town ten dollars per day will
accomplish more and better work in one week than would be ordinarily
accomplished by a surveyor under the old system in a season. And the
reason is obvious. The men and teams are accustomed to the work; the
best implements and machinery are employed, road-scrapers doing the
work where the nature of the soil will permit; and what is still
more important, the work is directed by the surveyor to the best
advantage. In the winter season the teams break out the roads after
heavy snows, and in fair weather cart gravel on to the roads as in
summer. And although we have an extraordinary length of road to
support,--namely, two hundred and seventy-five miles, being more by
twenty-five miles than any other town in the State,--there has been
a marked and continual improvement in their condition.
"When this plan was first presented to the attention of the town, it
met with sharp opposition, and passed by only a small majority; but
the favor with which it is now regarded may be judged by the fact
that since its adoption it has met with almost universal approval,
and we should now as soon think of going back to the school-district
system or to support the churches by taxation as of returning to the
old method of repairing our roads."
This method is undoubtedly better than the old district system; but
the system of the future will not include a road-scraper except for
the building of new roads. Any system is radically defective which
scrapes the dust and worn-out soil of the gutters or the turf and
loam of the roadside upon the road-bed. Perhaps this kind of
repairing is better than none in many localities; but as
civilization advances and the true principles of road-making become
better known, after the foundation of a road-bed has been properly
established, nothing but good road material will ever be put upon
it, and this will be put there from time to time as needed to keep
up a continual good condition of the road.
CHAPTER V.
LAWS RELATING TO THE LAYING OUT OF WAYS.
New roads are not often required now to reach and develop new tracts
of land, except in large towns and cities; but they are frequently
needed to shorten distances and to improve grades. Consequently the
laws relative to the laying out, maintenance, and use of highways
are of personal interest to every citizen, and many are also
interested in the laws relating to private ways.
The public have a right to lay out ways for purposes of business,
amusement, or recreation, as to markets, to public parks or commons,
to places of historic interest or beautiful natural scenery.[1] And
such ways may be established by prescription, by dedication, or by
the acts of the proper public authorities. Twenty years'
uninterrupted use by the public will make a prescriptive highway.
Many of the old roads in our towns and cities have become public
thoroughfares by prescriptive use, which began in colonial days, and
perhaps then followed Indian trails, or were first used as
bridle-paths.
[1] 11 Allen, 530.
When the owner in fee of land gives to the public a right of passage
and repassage over it, and his gift is accepted by the public, the
land thus travelled over becomes a way by dedication. The dedication
may be made by the writing, the declaration, or by the acts of the
owner. It must, however, clearly appear that he intended and has
made the dedication; and when it has been accepted by the public it
is irrevocable. Formerly it could be accepted by the public by use,
or by some act or circumstance showing the town's assent and
acquiescence in such dedication; but now no city or town is
chargeable for such dedicated way until it has been laid out and
established in the manner provided by the statutes.[2] It was
formerly thought that this act applied to prescriptive ways as well
as to dedicated ways; but it is now settled that it applies only to
ways by dedication, and ways by prescription are not affected by
it.[3]
[2] Pub. St. c. 49, § 94.
[3] 128 Mass. 63.
The proper town or city authorities have jurisdiction to lay out or
alter ways within the limits of their respective cities or towns,
and to order specific repairs thereon. The county commissioners have
also jurisdiction to lay out public ways, the termini of which are
exclusively within the same town; and they are also clothed with
authority to lay them out from town to town. Hence roads may be
either town ways or public highways. When the proceedings for their
location originate with the town or city officials, they are town
ways; and when the proceedings originate with the county
commissioners, they are public highways.[4] Suppose a new road is
wanted, or an alteration in an old one is desired, within the limits
of a town, a petition therefor may be presented either to the town
authorities or to the county commissioners. If the proposed road is
not situated entirely within the limits of one town or city, then
the commissioners alone have jurisdiction in the premises. When the
selectmen or road commissioners of a town decide to lay out a new
road, or to alter an old one, their doings must be reported and
allowed at some public meeting of the inhabitants regularly warned
and notified therefor; but while the inhabitants are vested with the
right of approval, they have no right to vote that the selectmen or
road commissioners shall lay out a particular way, as it is the
intention of the statute that these officials shall exercise their
own discretion upon the subject.[5] If the town authorities
unreasonably refuse or neglect to lay out a way, or if the town
unreasonably refuses or delays to approve and allow such way as laid
out or altered by its officials, then the parties aggrieved thereby
may, at any time within one year, apply to the county commissioners,
who have authority to cause such way to be laid out or altered. But
when a petition for a public way is presented in the first instance
to the county commissioners, or when the matter is brought before
them by way of appeal, their decision on the question of the public
necessity and convenience of such way is final, and from it there is
no appeal. If damage is sustained by any person in his property by
the laying out, alteration, or discontinuance of a public way, he is
entitled to receive just and adequate damages therefor, to be
assessed, in the first place, by the town or city authorities or by
the county commissioners, and, finally, by a jury, in case one is
demanded by him. He is entitled to a reasonable time to take off any
timber, wood or trees, which may be upon the land to be taken; but
if he does not remove the same within the time allowed, he is deemed
to have relinquished his right thereto. In estimating the damage to
the land-owner caused by the laying out or the alteration of a
public way over his land, neither the city nor town authorities nor
a jury are confined to the value of the land taken. He is also
entitled to the amount of the damage done to his remaining land by
such laying out or alteration.[6] But in such estimation of damages
any direct or peculiar benefit or increase of value accruing to his
adjoining land is to be allowed as a betterment, by way of set-off;
but not any general benefit or increase of value received by him in
common with other land in the neighborhood.[7]
[4] 7 Cush. 394.
[5] 5 Pick. 492.
[6] 14 Gray, 214.
[7] 4 Cush. 291.
The cost of making and altering ways, including damages caused
thereby, is to be paid by the city or town wherein the same are
located, provided the proceedings originate with the town or city
authorities; but when the proceedings originate with the county
commissioners, they divide the cost between the towns and the county
in such manner as they think to be just and reasonable.[8]
[8] 6 Met. 329.
CHAPTER VI.
LAW AS TO REPAIRS.
After highways, town-ways, streets, causeways, and bridges have been
established, they are to be kept in such repair as to be reasonably
safe and convenient for travellers at all seasons of the year at the
expense of the town or city in which they are situated.
It is the duty of each town to grant and vote such sums of money as
are necessary for repairing the public ways within its borders; and
if it fails to do so, the highway surveyors, in their respective
districts, may employ persons, as directed in the statutes, to
repair the roads, and the persons so employed may collect pay for
their labor of the town. In order to make such repairs, city and
town authorities may select and lay out land within their respective
limits as gravel and clay pits from which may be taken earth and
gravel necessary for the construction and repairs of streets and
ways.[9] And they may turn the surface drainage of the roads upon
the land of the adjoining owners without liability.[10] But no
highway surveyor has a right, without the written approbation of the
selectmen, to cause a watercourse, occasioned by the wash of the
road, to be so conveyed by the roadside as to incommode a house, a
store, shop, or other building, or to obstruct a person in the
prosecution of his business.[11] Properly authorized city or town
officers may trim or lop off trees and bushes standing in the public
ways, or cut down and remove such trees; and may cause to be dug up
and removed whatever obstructs such ways, or endangers, hinders, or
incommodes persons travelling therein.[12] Even the boundaries of
public ways are so well guarded that when they are ascertainable no
length of time less than forty years justifies the continuance of a
fence or building within their limits; but the same may, upon the
presentment of a grand jury, be removed as a nuisance.[13]
[9] Pub. St. c. 49, § 99.
[10] 13 Gray, 601.
[11] Pub. St. c. 52, § 12.
[12] St. 1885, c. 123.
[13] Pub. St. c. 54.
It is so important that the public ways be kept free for travel,
that any person may take down and remove gates, rails, bars, or
fences upon or across highways, unless the same have been there
placed for the purpose of preventing the spreading of a disease
dangerous to the public health, or have been erected or continued by
the license of the selectmen or county commissioners.[14] A highway
surveyor acting within the scope of his authority may dig up and
remove the soil within the limits of the public ways for the purpose
of repairing the same, and may carry it from one part of the town to
another;[15] and he has a right to deposit the soil thus removed on
his own land, if that is the best way of clearing the road of
useless material.[16]
[14] Pub. St. c. 54.
[15] 125 Mass. 216.
[16] 128 Mass. 546.
Though the law is imperative that the roads must be kept in good
condition, and to this end gives municipal corporations great
powers, yet let no one who is not a highway surveyor or in his
employ imagine that he can repair a road not on his own land with
impunity; for it has been decided that if an unauthorized person
digs up the soil on the roadside by another person's land for the
purpose of repairing the road, he is a trespasser and liable for
damages, although he does only what a highway surveyor might
properly do.[17] It is also the duty of cities and towns to guard
with sufficient and suitable railings every road which passes over a
bank, bridge, or along a precipice, excavation, or deep water; and
it makes no difference whether these dangerous places are within or
without the limits of the road, if they are so imminent to the line
of public travel as to expose travellers to unusual hazard.[18] But
towns are not obliged to put up railings merely to prevent
travellers from straying out of the highway, where there is no
unsafe place immediately contiguous to the way.[19]
[17] 8 Allen, 473.
[18] 13 Allen, 429.
[19] 122 Mass. 389.
The roads are for the use of travellers, and a city or town is not
bound to keep up railings strong enough for idlers to lounge against
or children to play upon.[20]
[20] 3 Allen, 374; 8 Allen, 237.
The travelled parts of all roads ought to be wide enough to allow of
the ordinary shyings and frights of horses with safety, for shying
is one of the natural habits of the animal;[21] although it seems
that switching his tail over the reins is not a natural habit of the
animal, as it has been decided that if a horse throws his tail over
the reins and thereby a defect in the road is run against, no
damages can be recovered.[22]
[21] 100 Mass. 49.
[22] 98 Mass. 578.
CHAPTER VII.
GUIDE-POSTS, DRINKING-TROUGHS, AND FOUNTAINS.
The statutes undertake to provide for the erection and maintenance
of guide-posts at suitable places on the public ways; but a person
has to travel but little in many of the towns of the State to come
to the conclusion that the law is either deficient in construction
or a dead letter in execution. The law makes it incumbent upon the
selectmen or road commissioners of each town to submit to the
inhabitants, at every annual meeting, a report of all the places in
which guide-posts are erected and maintained within the town, and of
all places at which, in their opinion, they ought to be erected and
maintained. For each neglect or refusal to make such report they
shall severally forfeit ten dollars. After the report is made the
town shall determine the several places at which guide-posts shall
be erected and maintained, which shall be recorded in the town
records. A town which neglects or refuses to determine such places,
and to cause a record thereof to be made, shall forfeit five dollars
for every month during which it neglects or refuses to do so.
At each of the places determined by the town there shall be erected,
unless the town at the annual meeting agrees upon some suitable
substitute therefor, a substantial post of not less than eight feet
in height, near the upper end of which shall be placed a board or
boards, with plain inscription thereon, directing travellers to the
next town or towns and informing them of the distance thereto.
Every town which neglects or refuses to erect and maintain such
guide-posts, or some suitable substitutes therefor, shall forfeit
annually five dollars for every guide-post which it neglects or
refuses to maintain.[23] These forfeitures can be recovered either by
indictment or by an action of tort for the benefit of the county
wherein the acts of negligence or refusal occur; and any interested
or public-spirited person can make complaint of such negligence or
refusal to the superior court, or to any trial justice, police,
district or municipal court, having jurisdiction of the matter.[24]
[23] Pub. St. c. 53, §§ 1-5.
[24] Pub. St. c. 217; 108 Mass. 140.
The selectmen may establish and maintain such drinking-troughs,
wells, and fountains within the public highways, squares, and
commons of their respective towns, as in their judgment the public
necessity and convenience may require, and the towns may vote money
to defray the expenses thereof.[25] But the vote of a town
instructing the selectmen to establish a watering-trough at a
particular place would be irregular and void, because towns in their
corporate capacity have not been given the right by statute to
construct drinking-troughs in the public highways. And towns would
not be liable for the acts of the selectmen performed in pursuance
of this statute, because the law makes the selectmen a board of
public officers, representing the general public, and not the agents
of their respective towns. However, if the inhabitants of a town
should construct a drinking trough or fountain of such hideous
shape, and paint it with such brilliant color, that it would
frighten an ordinarily gentle and well-broken horse, by reason of
which a traveller should be brought in contact with a defect in the
way or on the side of the way, and thus injured, the town might be
held liable to pay damages.[26]
[25] Pub. St. c. 27, § 50.
[26] 125 Mass. 526.
It is my purpose to state what the law is, and not what it ought to
be; but I will venture the suggestion that it would not be an
unreasonable hardship on towns to require them to establish and
maintain suitable watering-troughs at suitable places, and it would
be a merciful kindness to many horses which now frequently have to
travel long distances over dusty roads in summer heat without a
chance to get a swallow of water from a public drinking-trough.
CHAPTER VIII.
SHADE TREES, PARKS, AND COMMONS.
The law of the Commonwealth not only requires the public ways to be
kept safe and convenient, but of late years statutes have been
passed allowing owners of land, improvement societies, cities and
towns, to do something to beautify the roadsides and public squares
of any city or town. A city or town may grant or vote a sum not
exceeding fifty cents for each of its ratable polls in the preceding
year, to be expended in planting, or encouraging the planting by the
owners of adjoining real estate, of shade trees upon the public
squares or highways.[27] Such trees may be planted wherever it will
not interfere with the public travel or with private rights, and
they shall be deemed and taken to be the private property of the
person so planting them or upon whose premises they stand.[28]
[27] St. 1885, c. 123.
[28] Pub. St. c. 54, § 6.
Improvement societies, properly organized for the purpose of
improving and ornamenting the streets and public squares of any city
or town by planting and cultivating ornamental trees therein, may be
authorized by any town to use, take care of, and control the public
grounds or open spaces in any of its public ways, not needed for
public travel. They may grade, drain, curb, set out shade or
ornamental trees, lay out flower plots, and otherwise improve the
same; and may protect their work by suitable fences or railings,
subject to such directions as may be given by the selectmen or road
commissioners. And any person who wantonly, maliciously, or
mischievously drives cattle, horses, or other animals, or drives
teams, carriages, or other vehicles, on or across such grounds or
open spaces, or removes or destroys any fence or railing on the
same, or plays ball or other games thereon, or otherwise interferes
with or damages the work of such corporation, is subject to a fine
not exceeding twenty dollars for each offence, for the benefit of
the society.[29]
[29] St. 1885, c. 157.
It is also a legal offence for any one wantonly to injure or deface
a shade tree, shrub, rose, or other plant or fixture of ornament or
utility in a street, road, square, court, park, or public garden, or
carelessly to suffer a horse or other beast driven by or for him, or
a beast belonging to him and lawfully on the highway, to break down
or injure a tree, not his own, standing for use or ornament on said
highway.[30] And no one, even if he be the owner of the land, has the
right to cut down or remove an ornamental or shade tree standing in
a public way, without first giving notice of his intention to the
municipal authorities, who are entitled to ten days to decide
whether the tree can be removed or not. And whoever cuts down or
removes or injures such tree in violation of the law shall forfeit
not less than five nor more than one hundred dollars for the benefit
of the city or town wherein the same stands.[31]
[30] Pub. St. c. 54, §§ 7, 8.
[31] Pub. St. c. 54, §§ 10, 11.
CHAPTER IX.
PUBLIC USE OF HIGHWAYS.
After the roads are ready for use and beautified by shade trees and
green parks at convenient places, we are confronted with the
question, How are they to be used by the public and the owners of
adjoining estates? We, as a people, are not only continental and
terrestrial travellers, but we are continually passing hither and
thither over the public ways of this State, and consequently it is
important for us to know how to travel the common roads in a legal
and proper manner.
In the first place, every one who travels upon a public thoroughfare
is bound to drive with due care and discretion, and to have an
ordinarily gentle and well trained horse, with harness and vehicle
in good roadworthy condition, as he is liable for whatever damages
may be occasioned by any insufficiency in this respect.[32]
[32] 4 Gray, 178.
Another duty which every traveller is bound to observe is to drive
at a moderate rate of speed. To drive a carriage or other vehicle on
a public way at such a rate or in such a manner as to endanger the
safety of other travellers, or the inhabitants along the road, is an
indictable offence at common law, and amounts to a breach of the
peace; and in case any one is injured or damaged thereby, he may
look to the fast driver for his recompense. But it does not follow
that a man may not drive a well-bred and high-spirited horse at a
rapid gait, if he does not thereby violate any ordinance or by-law
of a town or city; for it has been held that it cannot be said, as
matter of law, that a man is negligent who drives a high-spirited
and lively-stepping horse at the rate of ten miles an hour in a dark
night.[33]
[33] 8 Allen, 522.
It then behooves every one to drive with care and caution, whether
he is going fast or slow; and it also behooves him to see that his
servants drive with equal care and caution, for he is responsible to
third persons for the negligence of his servants, in the scope of
their employment, to the same extent as if the act were his own,
although the servants disobey his express orders. If you send your
servant upon the road with a team, with instructions to drive
carefully and to avoid coming in contact with any carriage, but
instead of driving carefully he drives carelessly against a
carriage, you are liable for all damages resulting from the
collision; and if the servant acts wantonly or mischievously,
causing thereby additional bodily or mental injury, such wantonness
or mischief will enhance the damage against you.[34]
[34] 3 Cush. 300; 114 Mass. 518.
You may think this a hard law; but it is not so hard as it would be
if it allowed you to hire ignorant, wilful, and incompetent servants
to go upon the road and injure the lives and property of innocent
people without redress save against the servants, who perchance
might be financially irresponsible. It should however be stated in
this connection that if your team should get away from you or your
servant, without any fault on your or his part, and should run away
and do great damage, by colliding with other teams, or by running
over people on foot, you would not be held responsible, as in law it
would be regarded as an inevitable accident. Thus, if your horse
should get scared by some sudden noise or frightful object by the
wayside, or through his natural viciousness of which you were
ignorant, or by some means should get unhitched after you had left
him securely tied, and in consequence thereof should plunge the
shaft of your wagon into some other man's horse, or should knock
down and injure a dozen people, you would not be liable, because the
injury resulted from circumstances over which you had no control.[35]
[35] 1 Addison on Torts, 466.
CHAPTER X.
"THE LAW OF THE ROAD."
There are certain rules applicable to travellers upon public ways,
which are so important that everybody ought to know and observe
them. The law relative thereto is known as "the law of the road."
These rules relate to the meeting, passing, and conduct of teams on
the road; and it is more important that there should be some well
established and understood rules on the subject than what the rules
are. In England the rules are somewhat different, and some of them
are the reverse of what they are in this country. But the rules and
the law relating thereto in this country are about the same in every
State of the Union. Our statutes provide that when persons meet each
other on a bridge or road, travelling with carriages or other
vehicles, each person shall seasonably drive his carriage or other
vehicle to the right of the middle of the travelled part of such
bridge or road, so that their respective carriages or other vehicles
may pass each other without interference; that one party passing
another going in the same direction must do so on the left-hand side
of the middle of the road, and if there is room enough, the foremost
driver must not wilfully obstruct the road.[36]
[36] Pub. St. c. 93.
Although these are statutory rules, yet they are not inflexible in
every instance, as on proper occasions they may be waived or
reversed. They are intended for the use of an intelligent and
civilized people; and in the crowded streets of villages and cities,
situations or circumstances may frequently arise when a deviation
will not only be justifiable but absolutely necessary. One may
always pass on the left side of a road, or across it, for the
purpose of stopping on that side, if he can do so without
interrupting or obstructing a person lawfully passing on the other
side.[37] And if the driver of a carriage on the proper side of the
road sees a horse coming furiously on the wrong side of the road, it
is his duty to give way and go upon the wrong side of the road, if
by so doing he can avoid an accident.[38] But in deviating from the
"law of the road," one must be able to show that it was the proper
and reasonable thing to do under the circumstances, or else he will
be answerable for all damages; for the law presumes that a party who
is violating an established rule of travelling is a wrongdoer.[39] Of
course a person on the right side of the road has no right to run
purposely or recklessly into a trespasser, simply because he has
wrongfully given him the opportunity to receive an injury, and then
turn round and sue for damages arising from his own foolhardiness
and devil-may-care conduct.[40]
[37] Angell on Highways, § 336.
[38] Shear. & Red. on Negligence, § 309.
[39] 121 Mass. 216.
[40] 12 Met. 415.
Every one seeking redress at law on account of an accident must be able
to show that he himself was at the time in the exercise of ordinary
care and precaution, and it is not enough for him to show that somebody
else was violating a rule of law. When the road is unoccupied a
traveller is at liberty to take whichever side of the road best suits
his convenience, as he is only required "seasonably to drive to the
right" when he meets another traveller; but if parties meet _on the
sudden_, and an injury results, the party on the wrong side of the
road is responsible, unless it clearly appears that the party on the
proper side has ample means and opportunity to prevent it.[41]
[41] 10 Cush. 495; 3 Carr. & Payne, 554; Angell on Carriers,
§ 555.
Where there is occasion for one driver to pass another going in the
same direction, the foremost driver may keep the even tenor of his
way in the middle or on either side of the road, provided there is
sufficient room for the rear driver to pass by; but if there is not
sufficient room, it is the duty of the foremost driver to afford it,
by yielding an equal share of the road, if that be practicable; but
if not, then the object must be deferred till the parties arrive at
ground more favorable to its accomplishment. If the leading
traveller then wilfully refuses to comply, he makes himself liable,
criminally, to the penalty imposed by the statute, and answerable at
law in case the rear traveller suffers damage in consequence of the
delay. There being no statute regulations as to the manner in which
persons should drive when they meet at the junction of two streets,
the rule of the common law applies, and each person is bound to use
due and reasonable care, adapted to the circumstances and place.[42]
[42] 12 Allen, 84.
By the "travelled part" of the road is intended that part which is
usually wrought for travelling, and not any track which may happen
to be made in the road by the passing of vehicles; but when the
wrought part of the road is hidden by the snow, and a path is beaten
and travelled on the side of the wrought part, persons meeting on
such beaten and travelled path are required to drive their vehicles
to the right of the middle of such path.[43] Many drivers of heavily
loaded vehicles seem to think that all lightly loaded ones should
turn out and give them all the travelled part of the road. No doubt
a lightly loaded vehicle can often turn out with less inconvenience
than a heavily loaded one, and generally every thoughtful and
considerate driver of a light vehicle is willing to, and does, give
the heavy vehicle more than half the road on every proper occasion;
but the driver of the heavy vehicle ought to understand that it is
done out of courtesy to himself and consideration for his horses,
and not because it is required by any rule of law. The statute law
of the road in this State makes no distinction between the lightly
and the heavily loaded vehicle. Both alike are required to pass to
the right of the travelled part of the road. In case of accident the
court would undoubtedly take into consideration the size and load of
each vehicle, as bearing upon the question of the conduct of the
drivers under the circumstances, and their responsibility would be
settled in accordance with "the law of the road," modified and
possibly reversed by the situation of the parties and the
circumstances surrounding them at the time.[44]
[43] 4 Pick. 125; 8 Met. 213.
[44] 111 Mass. 360.
A traveller in a common carriage may use the track of a street
railway when the same is not in use by the company; but the company
is entitled to the unrestricted use of their rails upon all proper
occasions, and then such traveller must keep off their track, or
else he renders himself liable to indictment under the statutes of
the State.[45]
[45] Pub. St. c. 113, § 37; 7 Allen, 573.
CHAPTER XI.
EQUESTRIANS AND PEDESTRIANS.
In England "the law of the road" applies as well to equestrians as
to travellers by carriage, and I can see no good reason why it
should not do so here. The statutes are silent on the subject, and I
cannot find that our Supreme Court has ever had occasion to pass
upon the question; but it has been decided in some of the States
that when a traveller on horseback meets another equestrian or a
carriage, he may exercise his own notions of prudence, and turn
either to the right or to the left at his option.[46] By common
consent and immemorial usage an equestrian is expected to yield the
road, or a good share of it, to a wagon or other vehicle. It has
been decided in Pennsylvania that if he has a chance to turn out and
refuses to do so, and his steed or himself is injured by a
collision, he is remediless.[47]
[46] 24 Wend. 465.
[47] 23 Penn. St. 196.
It is clear that the statute law of the road in this State is not
applicable to people on horseback, as it is expressly limited to
carriages or other vehicles, and therefore equestrians are amenable
only to the common law of the land. By this law they are required to
ride on the public ways with due care and precaution, and to
exercise reasonably good judgment on every occasion, under all the
attendant circumstances. When they meet wagons, whether heavily
loaded or not, they ought to yield as much of the road as they can
conveniently,--certainly more than half, as they do not need that
much of the road to pass conveniently,--but when they meet a vehicle
in the form of a bicycle there seems to be no good reason why they
should yield more than half the road. For the convenience of
themselves and the public at large, on meeting vehicles or each
other, they ought to pass to the right, as by adopting the statute
law of the road in this respect order is promoted and confusion
avoided.
A public thoroughfare is a way for foot-passengers as well as
carriages, and a person has a right to walk on the carriage-way if
he pleases; but, as Chief Justice Denman once remarked, "he had
better not, especially at night, when carriages are passing
along."[48] However, all persons have an undoubted right to walk on
the beaten track of a road, if it has no sidewalk, even if infirm
with age or disease, and are entitled to the exercise of reasonable
care on the part of persons driving vehicles along it. If there is a
sidewalk which is in bad condition, or obstructed by merchandise or
otherwise, then the foot-passenger has a right to walk on the road
if he pleases. But it should be borne in mind that what is proper on
a country road might not be in the crowded streets of a city. In law
every one is bound to regulate his conduct to meet the situations in
which he is placed, and the circumstances around him at the time. A
person infirm with age or disease or afflicted with poor eyesight
should always take extraordinary precaution in walking upon the
road.[49] Thus, a man who traverses a crowded thoroughfare with edged
tools or bars of iron must take especial care that he does not cut
or bruise others with the things he carries. Such a person would be
bound to keep a better lookout than the man who merely carried an
umbrella; and the man who carried an umbrella would be bound to take
more care when walking with it than a person who had nothing.[50]
[48] 5 Carr. & Payne, 407.
[49] 1 Allen, 180.
[50] 1 Addison on Torts, § 480.
Footmen have a right to cross a highway on every proper occasion,
but when convenient they should pass upon cross-walks, and in so
doing should look out for teams; for it is as much their duty, on
crossing a road, to look out for teams, as it is the duty of the
drivers of teams to be vigilant in not running over them. "The law
of the road" as to the meeting of vehicles does not apply to them.
They may walk upon whichever side they please, and turn, upon
meeting teams, either to the right or to the left, at their option,
but it is their duty to yield the road to such an extent as is
necessary and reasonable; and if they walk in the beaten track or
cross it when teams are passing along, they must use extraordinary
care and caution or they will be remediless in case of injury to
themselves. They may travel on the Lord's day for all purposes of
necessity or charity; and they may also take short walks in the
public highway on Sundays, simply for exercise and to take the air,
and even to call to see friends on such walks, without liability to
punishment therefor under the statutes for the observance of the
Lord's day, and they can recover damages for injuries wrongfully
sustained while so walking.[51]
[51] 14 Allen, 475; Barker v. Worcester, 139 Mass. 74.
CHAPTER XII.
OMNIBUSES, STAGES, AND HORSE-CARS.
Nearly every one has occasion, more or less often, to travel over
the public ways in the coaches of passenger carriers. Whoever
undertakes to carry passengers and their baggage for hire from place
to place is bound to use the utmost care and diligence in providing
safe and suitable coaches, harnesses, horses, and coachmen, in order
to prevent such injuries as human care and foresight can guard
against.
If an accident happens from a defect in the coach or harness which
might have been discovered and remedied upon careful and thorough
examination, such accident must be ascribed to negligence, for which
the owner is liable in case of injury to a passenger happening by
reason of such accident.
On the other hand, where the accident arises from a hidden and
internal defect, which careful and thorough examination would not
disclose, and which could not be guarded against by the exercise of
sound judgment and the most vigilant oversight, then the proprietor
is not liable for the injury, but the misfortune must be borne by
the sufferer as one of that class of injuries for which the law can
afford no redress in the form of a pecuniary recompense.
If a passenger, in peril arising from an accident for which the
proprietors are responsible, is in so dangerous a situation as to
render his leaping from the coach an act of reasonable precaution,
and he leaps therefrom and breaks a limb, the proprietors are
answerable to him in damages, though he might safely have retained
his seat.[52]
[52] 9 Met. 1.
When the proprietors of stages or street-car coaches, which are
already full and overloaded, stop their coaches, whether at the
signal or not of would-be passengers, and open the doors for their
entrance, they must be considered as inviting them to ride, and
thereby assuring them that their passage will be a safe one, at
least so far as dependent upon the exercise of reasonable and
ordinary care, diligence, and skill, on their part, in driving and
managing their horses and coaches; and, in fact, they are rather to
be held responsible for such increased watchfulness and solicitous
care, skill, and attention, as the crowded condition of the vehicle
requires. If, under such circumstances, a passenger is thrown out of
or off the coach by its violent jerk at starting or stopping, or in
any other way through the negligence of the proprietors or their
agents, he may hold them liable for his injuries.[53] A passenger
must pay his fare in advance, if demanded, otherwise he may have to
pay a fine for evading fare; and if he is riding free, the
proprietors are not responsible, except for gross negligence; and he
must also properly and securely pack his baggage, if he expects to
recover damages in case of loss. A mail-coach is protected by act of
Congress from obstructions, but is subject in all other respects to
"the law of the road."[54]
[53] 103 Mass. 391.
[54] 1 Watts, Pa. 360.
If the proprietors of coaches used for the common carriage of
persons are guilty of gross carelessness or neglect in the conduct
and management of the same while in such use, they are liable to a
fine not exceeding five thousand dollars, or to imprisonment not
exceeding three years.[55] And if a driver of a stage-coach or other
vehicle for the conveyance of passengers for hire, when a passenger
is within or upon such coach or vehicle, leaves the horses thereof
without some suitable person to take the charge and guidance of
them, or without fastening them in a safe and prudent manner, he may
be imprisoned two months or fined fifty dollars.[56]
[55] Pub. St. c. 202, § 34.
[56] Pub. St. c. 202, § 35.
CHAPTER XIII.
PURPOSES FOR WHICH HIGHWAYS MAY BE USED.
As before intimated, the public ways are mainly for the use of
travellers; but in the progress of civilization it has become
convenient and necessary to use them for other purposes of a public
nature. It is the great merit of the common law, that while its
fundamental principles remain fixed from generation to generation,
yet they are generally so comprehensive and so well adapted to new
institutions and conditions of society, new modes of commerce, new
usages and practices, that they are capable of application to every
phase of society and business life. Time and necessity, as well as
locality, are important elements in determining the character of any
particular use of a public way. Many public ways are now used for
gas, water-pipes, and sewers, because the public health and
convenience are subserved by such use.[57] They are also used for the
transmission of intelligence by electricity, and the post-boy and
the mail-coach are disappearing.
[57] 35 N.H. 257.
The horse-railroad was deemed a new invention; but it was held that
a portion of the road might well be set aside for it, although the
rights of other travellers to some extent were limited by the
privileges necessary for its use.[58]
[58] 136 Mass. 75.
And now motor cars and elevated railroads are making their
appearance in the centres of civilized life, and the bicycle and
tricycle are familiar objects on all the great thoroughfares. Should
human ingenuity discover any new modes of conveying persons and
property over the public ways, or of transmitting intelligence along
the same, which should prove convenient to the everyday life of
humanity, no doubt the highway law will be found applicable to all
the needs of advancing civilization. The underlying principle of the
law is that every person may use the highway to his own best
advantage, but with a just regard to the like rights of others. The
law does not specify what kind of animals or vehicles are to be
allowed upon the road, but leaves every case to be decided as it
shall arise, in view of the customs and necessities of the people
from time to time. All persons may lawfully travel upon the public
ways with any animal or vehicle which is suitable for a way prepared
and intended to afford the usual and reasonable accommodations
needful to the requirements of a people in their present state of
civilization; but if any person undertakes to use or travel upon the
highway in an unusual or extraordinary manner, or with animals,
vehicles, or freight not suitable or adapted to a way opened and
prepared for the public use, in the common intercourse of society,
and in the transaction of usual and ordinary business, he then takes
every possible risk of loss and damage upon himself.[59]
[59] 14 Gray, 242.
If a party leads a bull or other animal through a public way without
properly guarding and restraining the same, and for want of such
care and restraint people rightfully on the way and using due care
are injured, the owner of the animal is responsible, because under
such circumstances he is bound to use the utmost care and diligence,
especially in villages and cities, to avoid injuries to people on
the road.[60] So, if a man goes upon the highway with a vehicle of
such peculiar and unusual construction, or which is operated in such
a manner, as to frighten horses and to create noise and confusion on
the road, he is guilty of an indictable offence and answerable in
damages besides. An ycleped velocipede in the road has been held in
Canada to be a nuisance, and its owner was indicted and found guilty
of a criminal offence.[61] In England a man who had taken a traction
steam-engine upon the road was held liable to a party who had
suffered damages by reason of his horses being frightened by it.[62]
It has been held to be a nuisance at common law to carry an
unreasonable weight on a highway with an unusual number of
horses.[63] And so it is a nuisance for a large number of persons to
assemble on or near a highway for the purpose of shouting and making
a noise and disturbance; and likewise it is a nuisance for one to
make a large collection of tubs in the road, or to blockade the way
by a large number of logs, cattle, or wagons; for, as Lord
Ellenborough once said, the king's highway is not to be used as a
stable or lumber yard.
[60] 106 Mass. 281; 126 Mass. 506.
[61] 30 Q.B. Ont. 41.
[62] 2 F. & F. 229.
[63] 3 Salk. 183.
Towns and cities have authority to make such by-laws regulating the
use and management of the public ways within their respective
limits, not repugnant to law, as they shall judge to be most
conducive to their welfare.[64] They may make such by-laws to secure,
among other things, the removal of snow and ice from sidewalks by
the owners of adjoining estates; to prevent the pasturing of cattle
or other animals in the highways; to regulate the driving of sheep,
swine, and neat cattle over the public ways; to regulate the
transportation of the offal of slaughtered cattle, sheep, hogs, and
other animals along the roads; to prohibit fast driving or riding on
the highways; to regulate travel over bridges; to regulate the
passage of carriages or other vehicles, and sleds used for coasting,
over the public ways; to regulate and control itinerant musicians
who frequent the streets and public places; and to regulate the
moving of buildings in the highways. Many people are inclined to
make the highway the receptacle for the surplus stones and rubbish
around their premises, and to use the wayside for a lumber and wood
yard; and some farmers are in the habit of supplying their hog-pens
and barn cellars with loam and soil dug out of the highway.
[64] Pub. St. c. 27, § 15, and c. 53; 97 Mass. 221.
Again, some highway surveyors have very little taste for rural
beauty, and show very poor judgment, and perhaps now and then a
little spite, in ploughing up the green grass by the roadside and
sometimes in front of houses. These evils can be remedied by every
town which will pass suitable by-laws upon the subject and see that
they are enforced. Such by-laws might provide that no one should be
allowed to deposit within the limits of the highway any stones,
brush, wood, rubbish, or other substance inconvenient to public
travel; that no one should be permitted to dig up and carry away any
loam or soil within the limits of the highway; and that no highway
surveyor should be allowed to dig or plough up the greensward in
front of any dwelling-house, or other building used in connection
therewith, without the written direction or consent of the
selectmen.
CHAPTER XIV.
USE OF HIGHWAYS BY ADJOINING OWNERS.
The owner of land adjoining a highway ordinarily owns to the middle of
the road; and while he has the same rights as the public therein, he
also has, in addition thereto, certain other rights incident to the
ownership of the land over which the road passes. When land is taken
for a highway, it is taken for all the present and prospective purposes
for which a public thoroughfare may properly be used, and the damages
to the owner of the land are estimated with reference to such use; but
the land can be used for no other purpose, and when the servitude
ceases the land reverts to him free from encumbrance. During the
continuance of the servitude he is entitled to use the land, subject to
the easement, for any and all purposes not incompatible with the public
enjoyment. If the legislature authorizes the addition of any new
servitude, essentially distinct from the ordinary use of a highway,
like an elevated railroad, then the land-owner is entitled to
additional compensation; for it cannot be deemed, in law, to have been
within the contemplation of the parties, at the time of the laying out
of the road, that it might be used for such new and additional
purposes. It has been held in New York, Illinois, and some of the
United States circuit courts, that the use of a highway for a telegraph
line will entitle such owner to additional compensation; but in the
recent case of Pierce _v._ Drew[65] the majority of our Supreme Court
decided that the erection of a telegraph line is not a new servitude
for which the land-owner is entitled to additional compensation.
[65] 136 Mass. 75.
A minority of the court, in an able argument, maintained that the
erection of telegraph and telephone posts and wires along the roads,
fitted with cross-beams adapted for layer after layer of almost
countless wires, which necessitate to some extent the destruction of
trees along the highways or streets, the occupation of the ground,
the filling of the air, the interference with access to or escape
from buildings, the increased difficulty of putting out fires, the
obstruction of the view, the presentation of unsightly objects to
the eye, and the creation of unpleasant noises in the wind, is an
actual injury to abutting land along the line, and constitutes a new
and increased servitude, for which the land-owner is entitled to a
distinct compensation. After the rendering of the majority decision,
the legislature very promptly passed a law allowing an owner of land
abutting upon a highway along which telegraph or telephone, electric
light or electric power, lines shall be constructed, to recover
damages to the full extent of the injuries to his property, provided
he applies, within three months after such construction, to the
mayor and aldermen or selectmen to assess and appraise his
damage.[66]
[66] St. 1884, c. 306.
The public has a right to occupy the highway for travel and other
legitimate purposes, and to use the soil, the growing timber, and
other materials found within the space of the road, in a reasonable
manner, for the purpose of making and repairing the road and the
bridges thereon.[67] But the public cannot go upon the land of an
adjoining owner without his consent, to remove stones or earth, to
repair a bridge or the highway; and if in consequence of such
removal the land is injured, by floods or otherwise, he can recover
damages therefor.[68] He is not obliged to build or maintain a road
fence, except to keep his own animals at home, but if he does build
a fence he must set it entirely on his own land; and likewise, if a
town constructs an embankment to support a road or bridge, it must
keep entirely within the limits of the highway, for if any part of
the embankment is built on his land he can collect damages of the
town.[69] He may carry water-pipes underground through the highway,
or turn a watercourse across the same below the surface, provided he
does not deprive the public of their rights in the way.[70] From the
time of Edward IV. it has been the settled law that the owner of the
soil in the highway is entitled to all the profits of the freehold,
the grass and trees upon it and the mines under it. He can lawfully
claim all the products of the soil and all the fruit and nuts upon
the trees. He may maintain trespass for any injury to the soil or to
the growing trees thereon, which is not incidental to the ordinary
and legitimate uses of the road by the public. His land in the
highway may be recovered in ejectment just the same as any of his
other land. No one has any more right to graze his highway land than
his tillage land.[71] He may cut the hay on the roadside, gather the
fruit and crops thereon, and graze his own animals there; and the
by-laws of the cities and towns preventing the pasturing of cattle
and other animals in the highway are not to affect his right to the
use of land within the limits of the road adjoining his own
premises.[72]
[67] 15 Johns, 447.
[68] 107 Mass. 414.
[69] 4 Gray, 215; 136 Mass. 10.
[70] 6 Mass. 454.
[71] 16 Mass. 33; 8 Allen, 473.
[72] Pub. St. c. 53, § 10.
It is not one of the legitimate uses of the highway for a traveller
or a loafer to stop in front of your house to abuse you with
blackguardism, or to play a tune or sing a song which is
objectionable to you; and if you request him to pass on and he
refuses to go, you may treat him as a trespasser and make him pay
damages and costs, if he is financially responsible.[73] And
likewise, if any person does anything on the highway in front of
your premises to disturb the peace, to draw a crowd together, or to
obstruct the way, he is answerable in damages to you and liable to
an indictment by the grand jury.[74]
[73] 38 Me. 195.
[74] 24 Pick. 187.
Although the owner of the fee in a highway has many rights in the
way not common to the public, yet he must exercise those rights with
due regard to the public safety and convenience. Perhaps, in the
absence of objections on the part of the highway surveyor, or of
prohibitory by-laws on the part of the town, he has a right to take
soil or other material from the roadside for his own private use,
but he certainly has no right to injure the road by his excavations,
or to endanger the lives of travellers by leaving unsafe pits in the
wayside. He can load and unload his vehicles in the highway, in
connection with his business on the adjoining land, but it must be
done in such a manner as not unreasonably to interfere with or
incommode the travelling public. When a man finds it necessary to
crowd his teams and wagons into the street, and thereby blockade the
highway for hours at a time, he ought either to enlarge his premises
or remove his business to some more convenient spot. He has a right
to occupy the roadside with his vehicles, loaded or unloaded, to a
reasonable extent; but when he fills up the road with logs and wood,
tubs and barrels, wagons and sleighs, pig-pens and agricultural
machinery, or deposits therein stones and rubbish, he is not using
the highway properly, but is abusing it shamefully, and is
responsible in damages to any one who is injured in person or
property through his negligence, and, moreover, is liable to
indictment for illegally obstructing the roadway.[75] As before said,
he has a perfect right to pasture the roadside with his animals; but
if he turns them loose in the road, and they there injure the person
or property of any one legally travelling therein, he is answerable
in damages to the full extent of the injuries, whether he knows they
have any vicious habits or not.[76] If his cow, bull, or horse, thus
loose in the highway, gore or kick the horse of some traveller, he
is liable for all damages;[77] and in one instance a peaceable and
well-behaved hog in the road cost her owner a large sum of money,
because the horse of a traveller, being frightened at her looks, ran
away, smashed his carriage, and threw him out.[78]
[75] 1 Cush. 443; 13 Met. 115; 107 Mass. 264; 14 Gray, 75;
Pub. St. c. 112, § 17.
[76] 4 Allen, 444.
[77] 10 Cox, 102.
[78] 25 Me. 538.
As an offset to his advantages as adjoining owner there are a few
disadvantages. Highways are set apart, among other things, that
cattle and sheep may be driven thereon; and as, from the nature of
such animals, it is impossible even with care to keep them upon the
highways unless the adjoining land is properly fenced, it follows
that when they are driven along the road with due care, and then
escape upon adjoining land and do damage their owner is not liable
therefor, if he makes reasonable efforts to remove them as speedily
as possible.[79] Likewise, if a traveller bent upon some errand of
mercy or business finds the highway impassable by reason of some
wash-out, snowdrift, or other defect, he may go round upon adjoining
land, without liability, so far as necessary to bring him to the
road again, beyond the defect.[80] If a watercourse on adjoining land
is allowed by the land-owner to become so obstructed by ice and
snow, or other cause, that the water is set back, and overflows or
obstructs the road, the highway surveyor may, without liability,
enter upon adjoining land and remove the nuisance, if he acts with
due regard to the safety and protection of the land from needless
injury.[81]
[79] 114 Mass. 466.
[80] 7 Cush. 408.
[81] 134 Mass. 522.
A town or city has a right, in repairing a highway, to so raise the
grade or so construct the water-bars within its limits, as to cause
surface water to flow in large quantities upon adjoining land, to
the injury of the owner thereof; but, on the other hand, the
land-owner has a right to cause, if he can, the surface water on his
land to flow off upon the highway, and he may lawfully do anything
he can, on his own land, to prevent surface water from coming
thereon from the highway, and may even stop up the mouth of a
culvert built by a town across the way for the purpose of conducting
such surface water upon his land, providing he can do it without
exceeding the limits of his own land.[82]
[82] 13 Allen, 211, 291; 136 Mass. 119.
When the owner of land is constructing or repairing a building
adjoining the highway, it is his duty to provide sufficient
safeguards to warn and protect passing travellers against any danger
arising therefrom; and if he neglects to do so, and a traveller is
injured by a falling brick, stick of timber, or otherwise, he is
responsible.[83]
[83] 123 Mass. 26.
If the adjoining owner of a building suffers snow and ice to
accumulate on the roof, and allows it to remain there for an unusual
and unreasonable time, he is liable, if it slides off and injures a
passing traveller.[84] And, generally, the adjoining owner is bound
to use ordinary care in maintaining his own premises in such a
condition that persons lawfully using the highway may do so with
safety.
[84] 101 Mass. 251; 106 Mass. 194.
The general doctrine as to the use of property is here, as elsewhere,
_Sic utere tuo ut alienum non lædas_,--"So use your own property as not
to injure the rights of another." If you make an excavation on your
land so near to a highway that travellers are liable accidentally to
fall therein, you had better surround it with a fence or other
safeguard sufficient to protect reasonably the safety of travellers. If
you have any passage-ways, vaults, coal-holes, flap-doors, or traps of
any kind on your premises, which are dangerous for children or unwary
adults, you had better abolish them, or at any rate take reasonable
precaution to cover or guard them in such manner as ordinary prudence
dictates, and especially if they are near the highway; for if you do
not you may, some time when not convenient for you, be called upon to
pay a large claim for damages or to defend yourself against an
indictment. But if you have so covered and guarded them, and by the act
of a trespasser, or in some other way without fault on your part, the
cover, fence, or guard is removed, you are not liable until you have
had actual or constructive notice of the fact, and have had reasonable
opportunity to put it right.[85]
[85] 4 Carr. & Payne, 262, 337; 51 N.Y. 229; 19 Conn. 507.
CHAPTER XV.
PRIVATE WAYS.
A private way is the right of passage over another man's land. It
may be established and discontinued in the same manner as a public
way, and it may also arise from necessity. A way of necessity is
where a person sells land to another which is wholly surrounded by
his own land, or which cannot be reached from the public highways or
from the land of the purchaser. In such case the purchaser is unable
to reach his land at all unless he can go over some of the
surrounding estates; and inasmuch as he cannot go over the premises
of those who are strangers to him, in law, and inasmuch as public
policy and simple justice call for a passage-way to his land, for
his use in the care and cultivation of it, the law gives him a way
of necessity over his grantor's land, which runs with his land, as
appurtenant thereto, so long as the necessity exists, even if
nothing is said in the deed about a right of way, because it is
presumed that when the grantor sells the land he intends to convey
with it a right of way, without which it could not be used and
enjoyed; but when the necessity ceases, the right ceases also.[86] In
the absence of contract, it belongs to the owner of a private way to
keep it in repair,[87] and for this purpose he may enter upon the way
and do whatever is necessary to make it safe and convenient; but if
in so doing he removes soil and stones which are not needed on the
way, such surplus material belongs to the owner of the land over
which the way passes.[88] If a defined and designated way becomes
impassable for want of repair or by natural causes, the owner of the
way has not the right of a traveller on a public road to go outside
the limits of the way in order to pass from one point to another.[89]
But if the owner of the land obstructs the way, a person entitled to
use it may, without liability, enter upon and go over adjoining land
of the same owner, provided he does no unnecessary damage.[90] The
reason for this distinction in the law between a public and a
private way is that in the case of a private way the owner of the
way, who alone has the right to its use, is bound to keep it in
repair, whereas in the case of a public way the traveller is under
no obligation to keep it in passable condition. A private way once
established cannot be re-located except with the consent of both the
owner of the land and of the way; but if both are agreed, the old
way may be discontinued and re-located in another place.[91] The
owner of the soil of a private way may, the same as the owner of the
fee in a highway, make any and all uses thereof to which the land
can be applied.[92] In the absence of agreement to the contrary, he
may lawfully and without liability cover such way with a building or
other structure, if he leaves a space so wide, high, and light that
the way is substantially as convenient as before for the purpose for
which it was established.[93] And so, in the absence of agreement, he
may maintain such fences across the way as are necessary to enable
him to use his land for agricultural purposes, but he must provide
suitable bars or gates for the use and convenience of the owner of
the way. He is not required to leave it as an open way, nor to
provide swing gates, if a reasonably convenient mode of passage is
furnished; and if the owner of the way or his agents leave the bars
or gates open, and in consequence thereof damage is done by animals,
he is liable to respond in damages.[94] "The law of the road" applies
as well to private as to public ways, as the object of the law is to
prescribe a rule of conduct for the convenience and safety of those
who may have occasion to travel, and actually do travel, with
carriages on a place adapted to and fitted and actually used for
that purpose.[95] The description of a way as a "bridle-road" does
not confine the right of way to a particular class of animals or
special mode of use, but it may be used for any of the ordinary
purposes of a private road.[96]
[86] 14 Mass. 49; 2 Met. 457; 14 Gray, 126.
[87] 12 Mass. 65.
[88] 10 Gray, 65.
[89] Wash, on Ease. *196.
[90] 2 Allen, 543.
[91] 5 Gray, 409; 14 Gray, 473.
[92] Wash, on Ease. *196.
[93] 2 Met. 457.
[94] 31 N. Y 366; 44 N.H. 539; 4 M. & W. 245.
[95] 23 Pick. 201.
[96] 16 Gray, 175.
CHAPTER XVI.
DON'T.
In school, church, and society many things are taught by the
prohibitory don't; and thus many rules of law relating to public and
private ways may be taught and illustrated in the same way. For
instance:--
Don't ever drink intoxicating liquor as a beverage, at least in
large quantities. If you ever have occasion to use it at all, use it
very sparingly, especially if you are travelling or are about to
travel with a team; for if you should collide with another team, or
meet with an accident on account of a defect in the way, in a state
of intoxication, your boozy condition would be some evidence that
you were negligent. The law, however, is merciful and just, and if
you could satisfy the court or jury that notwithstanding your
unmanly condition you were using due care, and that the calamity
happened through no fault of yours, you would still be entitled to a
decision in your favor; but when you consider how apt a sober human
mind is to think that an intoxicated mind is incapable of clear
thought and intelligent action, I think you will agree with the
decisions of the courts, which mean, when expressed in plain
language, "You had better not be drunk when you get into trouble on
the highway."[97]
[97] 3 Allen, 402; 115 Mass. 239.
Don't ever approach a railway crossing without looking out for the
engine while the bell rings, and listening to see if the train is
coming; for there is good sense as well as good law in the suggestion
of Chief Baron Pollock, that a railway track _per se_ is a warning of
danger to those about to go upon it, and cautions them to see if a
train is coming. And our court has decided that when one approaches a
railway crossing he is bound to keep his eyes open, and to look up and
down the rails before going upon them, without waiting for the engineer
to ring the bell or to blow the whistle.[98] It is a duty dictated by
common sense and prudence, for one approaching a railway crossing to do
so carefully and cautiously both for his own sake and the sake of those
travelling by rail. If one blindly and wilfully goes upon a railway
track when danger is imminent and obvious, and sustains damage, he must
bear the consequences of his own rashness and folly.
[98] 12 Met. 415.
Don't drive horses or other animals affected by contagious diseases
on the public way, or allow them to drink at public watering-places,
or keep them at home, for that matter. The common law allows a man
to keep on his own premises horses afflicted with glanders, or sheep
afflicted with foot-rot, or other domestic animals afflicted with
any kind of diseases, provided he guards them with diligence and
does not permit them to escape on to his neighbor's land or the
public way. But under the statute law of this State, a man having
knowledge of the existence of a contagious disease among any species
of domestic animals is liable to a fine of five hundred dollars, or
imprisonment for one year, if he does not forthwith inform the
public authorities of such disease.[99] Aside from the penalty of the
statute law, it is clearly an indictable offence for any one to take
domestic animals affected with contagious diseases, knowing or
having reason to know them to be so affected, upon the public ways,
where they are likely to give such diseases to sound animals; and he
would be answerable in damages, besides.[100]
[99] St. 1885, c. 148.
[100] 2 Rob. N.Y. 326; 16 Conn. 200.
If you are afflicted with a contagious or infectious disease, don't
expose yourself on a highway or in a public place; and don't expose
another person afflicted with such disease, as thereby you may
jeopardize the health of other people, and your property also, in
case you should be sued by some one suffering on account of your
negligence.[101]
[101] 4 M. & S. 73; Wood on Nuisances, 70.
When there is snow on the ground, and the movement of your sleigh is
comparatively noiseless, don't drive on a public way without having
at least three bells attached to some part of your harness, as that
is the statute as well as the common law. By the statute law you
would be liable to pay a fine of fifty dollars for each offence. And
by the statute and common law, in case of a collision with another
team, you would probably be held guilty of culpable negligence and
made to pay heavy damages. Of course you would be allowed to show
that the absence of bells on your team did not cause the accident or
justify the negligence of the driver of the other team, but it would
be a circumstance which would tell against you at every stage of the
case.[102]
[102] 12 Met. 415; 11 Gray, 392; 8 Allen, 436.
If you have no acquaintance with the nature and habits of horses,
and no experience in driving or riding them, don't try to ride or
drive any of them on a public way at first, but confine your
exercise in horsemanship to your own land until you have acquired
ordinary skill in their management; for the law requires every
driver or rider on a highway to be reasonably proficient in the care
and management of any animal he assumes to conduct through a public
thoroughfare.[103]
[103] 2 Lev. 173.
Don't ride with a careless driver, if you can help it, because every
traveller in a conveyance is so far identified with the one who
drives or directs it, that if any injury is sustained by him by
collision with another vehicle or railway train through the
negligence or contributory negligence of the driver, he cannot
recover damages for his injuries. The passenger, in law, is
considered as being in the same position as the driver of the
conveyance, and is a partaker with him in his negligence, if not in
his sins.[104]
[104] Addison on Torts, § 479.
If you have a vicious and runaway horse, and you know it, you had
better sell him, or keep him at work on the farm. Don't, at any
rate, use him on the road yourself, or let him to other people to
use thereon; for if in your hands he should commit injuries to
person or property, you would have to foot the bills; and if he
should injure the person to whom you had let him, unless you had
previously informed him of the character and habits of the horse,
you would be liable to pay all the damages caused by the viciousness
of the horse. If you should meet with an accident by reason of a
defect in the highway, you could not recover anything, however
severely you might be injured or damaged, provided the vicious
habits of the horse contributed to the accident.[105]
[105] 4 Gray, 478; 117 Mass. 204.
In riding or driving keep hold of the reins, and don't let your
horses get beyond your control; for if you do your chances of
victory in a lawsuit will be pretty slim. If you tie up your reins
for the purpose of walking in order to get warm or to lighten the
load, and let your horses go uncontrolled, and they run over a child
in the road and kill it or seriously injure it, you will probably
have to pay more than the value of the horses, unless they are very
good ones. Or if, going thus uncontrolled, they fail to use due care
and good judgment in meeting other teams, and in consequence thereof
damages occur, you would be expected to make everything
satisfactory, because your team is required to observe "the law of
the road" whether you are with it or not, especially if you turn it
loose in the highway. Even if you have hold of the reins, and your
horses get beyond your control by reason of fright or other cause,
and afterwards you meet with an accident by reason of a defect in
the highway, you cannot recover anything.[106]
[106] 101 Mass. 93; 106 Mass. 278; 40 Barb. 193.
Don't encroach upon or abuse the highway, either by crowding fences
or buildings upon its limits or by using it as a storage yard. If
you set a building on the line of the road, and then put the
doorsteps, the eaves, and the bow-windows of the building over the
line, you are liable to an indictment for maintaining a public
nuisance; and possibly you may be ordered by the court to remove
them forthwith at your own expense.[107] If you build an expensive
bank-wall for a road fence, and place any part of it over the line,
you must remove it upon the request of the public authorities, or
else take your chances on an indictment for maintaining an illegal
obstruction in the highway. If you deposit on the roadside logs,
lumber, shingles, stones, or anything else which constitutes an
obstruction to travel or a defect in the way, or which is calculated
to frighten horses of ordinary gentleness, and allow the same to
remain for an unreasonable length of time, you are liable to respond
in damages for all injuries resulting therefrom. Even if the town
should have to settle for the damages in the first instance, you
might still be called upon to reimburse the town.[108]
[107] 107 Mass. 234.
[108] Wood on Nuisances, §§ 326, 327; 102 Mass. 341; 18 Me.
286; 41 Vt. 435.
Don't ride on the outside platform of a passenger coach; for if you
cling upon a crowded stage-coach or street car, and voluntarily take
a position in which your hold is necessarily precarious and
uncertain, you have no right to complain of any accident that is the
direct result of the danger to which you have seen fit to expose
yourself. However, if the coach is stopped for you to get on and
fare is taken for your ride, the fact that you are on the platform
is not conclusive evidence against you; but the court will allow the
jury to determine, upon all the evidence and under all the
circumstances, whether you were in the exercise of due care,
instructing them that the burden of proof is upon you to show that
the injury resulted solely by the negligence of the proprietors of
the coach.[109]
[109] 103 Mass. 391; 8 Allen, 234; 115 Mass. 239.
Don't jump off a passenger coach when it is in motion; for if you
get off without doing or saying anything, or if you ring the bell
and then get off before the coach is stopped, without any notice to
those in charge of it, and without their knowing, or being negligent
in not knowing, what you are doing, the coach proprietors are not
liable for any injury you may receive through a fall occasioned by
the sudden starting of the coach during your attempt to get off.[110]
[110] 106 Mass. 463.
Don't wilfully break down, injure, remove, or destroy a milestone,
mile-board, or guide-post erected upon a public way, or wilfully
deface or alter the inscription on any such stone or board, or
extinguish a lamp, or break, destroy, or remove a lamp, lamp-post,
railing, or posts erected on a street or other public place; for if
you do you are liable to six months' imprisonment or a fine of fifty
dollars.[111]
[111] Pub. St. c. 203, § 76.
If in travelling you find the road impassable, or closed for
repairs, and you find it convenient to turn aside and enter upon
adjoining land in order to go on your way, don't be careless or
imprudent; for if you take down more fences and do more damage than
necessary, you may have to answer in damages to the owner of the
land; and if you meet with an accident while thus out of the road,
you cannot look to the town for any remuneration therefor, because
when you go out of the limits of the way voluntarily, you go at your
peril and on your own responsibility.[112]
[112] 8 Met. 391; 7 Cush. 408; 7 Barb. 309.
Don't make the mistake of supposing that everything that frightens
your horse or causes an accident in the highway is a defect for
which the town is liable. If a town negligently suffers snowdrifts
to remain in the road for a long time, and thereby you are prevented
from passing over the road to attend to your business, or, in making
an attempt to pass, your horses get into the snow and you are put to
great trouble, expense, and loss of time in extricating them, you
are remediless unless you receive some physical injury in your
person or property; as the remedy provided by the statutes, in case
of defects in the highway, does not extend to expenses or loss of
time unless they are incident to such physical injury. In other
words, the statute gives no one a claim for damages sustained in
consequence of inability to use a road.[113] And so a town or city is
not obliged to light the highways, and an omission to do so is not a
defect in the way for which it is liable.[114]
[113] 13 Met. 297; 6 Cush. 141.
[114] 136 Mass. 419.
Nor is the mere narrowness and crookedness of a road a defect within
the meaning of the statutes. Towns and cities are only required to
keep highways in suitable repair as they are located by the public
authorities, and they have no right to go outside the limits defined
by the location in order to make the road more safe and convenient
for travel. If a highway is so narrow or crooked as to be unsafe,
the proper remedy is by an application to the county commissioners
to widen or straighten it.[115] Nor is smooth and slippery ice, in
country road or city street, a defect for which a town or city is
liable, if the road whereon the ice accumulates is reasonably level
and well constructed. In our climate the formation of thin but
slippery ice over the whole surface of the ground is frequently only
the work of a few hours; and to require towns and cities to remove
this immediately or at all is supposing that the legislature
intended to cast upon them a duty impossible to perform, and a
burden beyond their ability to carry.[116]
[115] 105 Mass. 473.
[116] 12 Allen, 566; 102 Mass. 329; 104 Mass. 78.
If you meet with an accident on the highway by reason of a defect
therein, don't fail to give notice in writing within thirty days, to
the county, town, place, or persons by law obliged to keep said
highway in repair, stating the time, place, and cause of the injury
or damage.[117] This notice is a condition precedent to the right to
maintain an action for such injury or damage, and cannot be waived
by the city or town.[118] Nothing will excuse such notice except the
physical or mental incapacity of the person injured, in which case
he may give the notice within ten days after such incapacity is
removed, and in case of his death it may be given by his executors
or administrators.[119] Formerly it was essential that the time,
place, and cause of the injury should be set forth in the notice
with considerable particularity, but now the notice is not invalid
by reason of any inaccuracy in stating the time, place, and cause,
if the error is not intentional and the party entitled to notice is
not misled.[120]
[117] Pub. St. c. 52, §§ 19-21.
[118] 128 Mass. 387.
[119] Pub. St. c. 52, § 21.
[120] St. 1882, c. 36.
Don't convey by warranty deed a piece of land over which there is a
public or a private way, without conveying subject to such way; for
if you do you may be called upon to make up the difference in value
in the land with the incumbrance upon it and with it off, which is
regarded as a just compensation for the injury resulting from such
an incumbrance.[121]
[121] 2 Mass. 97; 15 Pick. 66; 2 Allen, 428.
Finally, don't keep a dog that is in the habit of running into the
road and barking at passing teams. You had better get rid of him or
break him of the habit. Under our statutes the owner or keeper of a
dog is responsible to any person injured by him, either in person or
property, double the amount of damage sustained; and after he has
received notice of the bad disposition of his dog, he is liable to
have the damage increased threefold.
Every dog that has the habit of barking at people on the highway is
liable any day to subject his owner or keeper to large liabilities;
for if he frightens a horse by leaping or barking at him in mere
play, and the horse runs away, or tips over the vehicle to which he
is hitched, his owner or keeper is responsible for double the
damages thus caused by his dog. Hence I repeat the injunction, Get
rid of such a dog or break him of the habit; and if this cannot be
done, then break his neck.
Perhaps it might be well to say, in this connection, that any
traveller on the road, either riding or walking peaceably, who is
suddenly assaulted by a dog, whether licensed or not, may legally
kill him, and thus relieve his owner or keeper of a disagreeable
duty.[122]
[122] 11 Gray, 29; 1 Allen, 191; 3 Allen, 191.
CHAPTER XVII.
FOOT-PATHS.
Air, sunlight, and exercise are absolutely essential for the proper
physical and intellectual development of human beings. Thoreau
thought it necessary for people who wished to preserve their health
and spirits to spend four hours a day in the open air, sauntering
through the woods and over the hills and fields, free from all
worldly engagements. No doubt he spoke from his own personal
standpoint, and many persons do not require so much exercise in the
open air as he did in order to preserve their health and spirits;
but the proper observance of the laws of health certainly requires
every one to spend a portion of every pleasant day in the open air,
and on foot if possible. Since the morning stars first sang
together, the whole creation has been groaning and travailing in
preparing the earth for the habitation of man; and the influence and
teachings of Nature have ever aided powerfully in perfecting man and
upbuilding the ruling nations of the world.
The progenitors of every vigorous race have always found in forest
and wilderness the tonics and sources of their strength. It took
forty years of wandering in the wilderness to prepare the Israelites
for the occupation of the promised land. In the open and out-door
life of the Athenians was developed a civilization noble in high
aspirations for the ideal in beauty and life, rich in literary and
oratorical achievements, and glorious in the great and profound
thoughts of immortal teachers and philosophers. The august and
all-conquering civilization of the Romans had its origin on Palatine
Hill when herdsmen and wolves roamed over it. In Holland, where the
people are ever in conflict with the elements of Nature, the land
has been reclaimed by human effort from "the multitudinous waves of
the sea." The streams that once spread over the land or hid
themselves in quicksands and thickets are made to flow in channels
and form a network of watery highways for commerce and the
fertilization of the soil; and where formerly lagoons and morasses
found a home, there are now pleasant homesteads, great cities, and
beautiful villages. The Anglo-Saxon race, which is now and has been
for centuries the most vigorous and progressive in the world, has
always had an insatiable hunger for the earth, and a love for a life
in the fields by stream or by roadside. Everywhere we find the
highest type of civilization where man has gained the mastery of
Nature by the work of his hands. The home of such a civilization is
usually found where forests have been removed, and the wild
vegetation of primitive times has been expelled to make room for the
thousand and one productions of modern cultivation; where hillsides
and mountain-cliffs have been festooned with vines and made to
blossom like the rose; where watercourses have been made highways
for trade and utilized for purposes of manufacture; and where gloomy
morasses and damp lowlands have been dried up and made fertile and
habitable by drainage and cultivation.
As close contact with Nature is necessary for the making of nations,
so her teachings are essential for the largest expansion of the
human mind. All the great teachers of the race have found in Nature
the germs of the thoughts which have widened the bounds of human
knowledge "with the process of the suns." "Speak to the earth, and
it will teach thee," was the basis of Job's philosophy. When David
wanted light and assistance, he lifted up his eyes unto the hills,
from whence came his help. Plato taught in the consecrated groves of
the Academy, and Aristotle in the pleasant fields of Nymphäeum or in
the shady walks of the Lyceum. Christ taught his disciples to heed
the teachings of Nature, and he sought strength and inspiration in
the wilderness and the mountains. Wordsworth's library was in his
house, but his study was out of doors. But why enumerate, when the
entire intellectual history of our race demonstrates that every
invention or thought which has extended man's mental vision and
knowledge has been evolved from the discovery of some hitherto
hidden law of the material world, or from the teachings of Nature,
which always foreshadow the fundamental principles regnant in the
seen and the unseen world? Hence anything which tends to bring
people into the open air and into a closer communion with Nature is
worthy of encouragement.
Good foot-paths would furnish an easy and convenient way of getting
at Nature; and being free from the dust and heat of the highway, and
somewhat retired and secluded, they would be, during a considerable
portion of the year, musical with the song of birds and beautiful
with green foliage and lovely flowers. These paths would invite and
encourage people to take long walks, and this habit would
undoubtedly conduce to their longevity and robust health. And the
promotion of health is now regarded, in every enlightened community,
as one of the objects of government. The enjoyment of life depends
in great measure upon the state of our health. When the air feels
bracing, and food and drink taste sweet to us, much else in life
tastes sweet which would otherwise taste sour and disagreeable. Good
drainage and vaccination are not the only means available for the
promotion of the public health. People should be encouraged and
educated into the habit of taking plenty of exercise in the open
air, as in this way the public health will be improved.
One of the charms of old England is to be found in her numerous
foot-paths and green lanes, which are recognized by law, for many of
them are older than the highways. When a walker tires of the public
road or is in a hurry, if he knows the country, he can turn into
some foot-path and reach the place of his destination by short cuts
through green lanes, across pleasant meadows, and along shady
hedgerows. As one passes along these cosey byways, he sees, from
every eminence or turn, a new prospect over the landscape
interspersed with trees, now and then the bright gleam of water
through the foliage, and occasionally some beautiful vista view
across parks and homesteads. In this way one can go from town to
town, and get about the country quite independently of the highways.
Most of the country churches are approachable by lanes and
foot-paths which seem to run by all the houses in the vicinage, and
by their sweet attractiveness to invite all the people to go to
church, at least in pleasant summer weather.
In Massachusetts and some of the other States, towns and cities have
authority to lay out foot-paths in the same manner as public ways.
It is to be hoped ere-long that the intelligent and public-spirited
citizens of our towns and cities will cause now and then a good
foot-walk to be constructed, where it would shorten the distance
from one place to another, and possibly pass through pleasant fields
and woods, and over hills commanding beautiful and extensive views.
It is not pleasant to walk in the dust and publicity of highways,
nor on gravel walks in artificial parks, where sign-boards and
policemen warn you frequently to "keep off the grass."
Before our towns and cities spend any more money building boulevards
and opening new parks, would it not be well for them to consider the
advisability of laying out some foot-paths for the comfort and
convenience of pedestrians? At any rate, foot-paths could be made
alongside of the road-bed of some of the public ways, so that every
pedestrian would not of necessity have to trudge along in the dust
or mud incident to the middle of the road.
CHAPTER XVIII.
WITHIN AND WITHOUT THE ROADSIDE.
Besides the legal duty every dweller by a highway is under, to use
it with due regard to the rights of the public, he is under a moral
and Christian obligation to maintain order and neatness within and
without his roadside. The occupations and amenities of life are so
interwoven and intermixed that no one can live for himself alone
with justice to himself or to society. There is something in the
very nature of things which makes for the reward of unselfish
exertion and for the condemnation of selfish acts. "Whosoever shall
seek to save his life, shall lose it; and whosoever shall lose his
life, shall preserve it." Public spirit, like virtue, is its own
exceeding great reward. When one benefits the community in which he
lives, he thereby also benefits himself; and when he is possessed of
the right kind of a public spirit, he will beautify and improve his
homestead and his roadside, and will even throw the cobble-stones
out of the roadway in front of his house without compensation or
even hope of financial reward.
When he plants a tree for the sole purpose of doing something for
posterity, and then watches its growth and expansion from day to day
until he becomes familiar with its varied aspects in sunny and in
stormy weather, and finally, walking beneath its cooling shade and
seeing its limbs swaying gracefully over surrounding objects, his
heart goes out towards it with a feeling of tenderness and love, and
he feels that he has been paid a thousand times for setting it out.
When after years of endeavor in trying to keep his roadside neat and
clean and covered with greensward, he finds that his example is
having some influence on his neighbors, and that even the
road-menders begin to respect his efforts to improve the wayside, he
feels that he has been amply compensated for all his trouble and
care in his own increased enjoyment and in the increased enjoyment
he has been the means of giving to the public.
First impressions always have great influence upon our minds.
Nothing will give a traveller a poorer and meaner opinion of a town
and its inhabitants than dilapidated buildings surrounded by rubbish
and broken-down fences. When a traveller passes a house of this
character, he instinctively says to himself, "Some shiftless and
poverty-stricken family lives here;" but when he passes a well-kept
house with pleasant surroundings, he says, "This must be the abode
of intelligent and well-to-do people." He feels like stopping and
forming their acquaintance, for he is sure that their acquaintance
would be worth having. Our opinion of a person's character is always
more or less influenced by the clothes he wears and by the house in
which he lives. The surroundings of every home of intelligence and
tidiness should indicate that it is not the abode of the vulgar and
ignorant. Therefore every owner of a homestead should strive to make
it a cosey and pleasant home for himself and family. He should take
a just pride in keeping his buildings in good repair, well painted
and suitably arranged for the purposes of his business and a happy
and healthy home life. The surroundings should be made neat and
attractive, by the absence of rubbish, and the presence of green
grass and shade trees.
If he owns much land, he ought to be landscape gardener enough to
set out his fruit and shade trees and to lay out his fields in the
best way for convenience and scenic effect. He should also have
sufficient rural taste not to locate his barn and other
out-buildings in such a way as to shut off the best views from his
house. He ought also to have a general knowledge of the nature and
uses of trees and forests, and the necessity of their cultivation
for the good of himself and mankind at large.
Forest and shade trees greatly enhance the beauties of a country,
and no country can be beautiful in the highest degree without them.
If the green hills and mountains of New England were stripped of
their woods, the lovers of natural scenery and rural life would seek
elsewhere the gratification of their tastes. Even the stately homes
of England would appear commonplace in the absence of the majestic
trees and forests which now encircle them. A plain, modest house,
situated in the midst of an open grass-plat and sheltered by a few
handsome shade trees, is more beautiful and appeals more strongly to
the feelings than the stateliest mansion unprotected from the sun.
Who would care to live by the side of the purest stream or body of
water, if it were not fringed with trees? Were it not for trees,
would there be any beauty in mountain, hill, or valley,--for who can
conceive of a beautiful landscape scene devoid of trees?
The love of trees seems to be implanted in all noble natures. The
ancients believed that "the groves were the first temples of the
gods." Christopher North says that the man who loves not trees would
make no bones of murdering.
Some people give as an excuse for not planting trees that it takes
so long for them to grow that they will not live to enjoy them. The
selfishness of this excuse is enough to condemn it; but it is not
tenable from any point of view. It has been said that he who makes
two blades of grass grow where only one grew before is a benefactor
of his race; and of all the pursuits connected with the interests of
mankind what can be the source of more true and disinterested
happiness than the knowledge that one has been instrumental in
changing a waste and unproductive piece of land into a scene of
umbrageous and waving beauty? Cicero speaks of tree-planting as the
most delightful occupation of advanced life; and Sir Robert Walpole
once said that among the various actions of his busy life none had
given him so much satisfaction in the performance and so much
unsullied pleasure in the retrospect as the planting with his own
hands many of those magnificent trees that now form the pride of
Houghton.
Of course it is not claimed that every one should have expensive
buildings upon his homestead, or wide-spreading lawns around his
house. Many are so situated that they cannot afford to live in
costly houses or to spend much money on their surroundings; but
every one can make his home, however humble, pleasant and homelike,
and can keep his dooryard and wayside free from old rubbish. I can
understand how love can be happy in a cottage, but I do not believe
it possible for a family to grow in knowledge and virtue and enjoy
life while dwelling in mean and dirty apartments.
Cleanliness is next to godliness, and it is just as true of the
outside of the house as of the inside. A pleasant and beautiful
exterior usually signifies pleasantness and peace within. While
well-fenced and well-tilled farms are always pleasing to the
eyesight, and neatly dressed roadsides are generally desirable, it
does not follow that no shrubbery or sylvan tangles of trees should
be allowed to grow on farms or by the wayside. A bare and rocky hill
or knoll suggests images of bleak and barren desolation, cold
blasts, and parching sun; while a hill clothed and capped with woods
gives the impression of a rich and charming country. Therefore the
land unsuitable for pasturage or cultivation on a farm had better be
covered with clusters of trees or with forests; and frequently an
old stone-wall or heaps of stones can be advantageously hidden by
vines and shrubbery, as they add beauty to the landscape, furnish
shelter to birds, and often protect the crops from cold winds. Many
a wayside in country by-roads is so rough and uneven, so rocky and
full of earth-pits, that it had better be covered with the wild
shrubbery of Nature than to be cleared up in such a way as to expose
to view all its unsightly objects. Whenever the roadside cannot be
covered by greensward, the native shrubs and wild vines ought to be
allowed to hide its nakedness with green foliage and beautiful
flowers. They give beauty to wayside scenery, and increase the
interest and pleasure of those travelling along the road.
CHAPTER XIX.
ENJOYMENT OF THE ROAD.
In travelling, whether one is riding or walking, it is not
sufficient for the proper enjoyment of the way to know how to get
along in a legal manner, but he should know how to put himself in
harmony with the elements of Nature, and to feel the "gay, fresh
sentiment of the road." The first requisite for this enjoyment is to
have a hopeful and sunshiny disposition. When people are buoyed up
by hope they will find enjoyment under very adverse circumstances.
Adam and Eve, according to Milton, saw without terror for the first
time the sun descend beneath the horizon, and the darkness close in
upon the earth, and "the firmament glow with living sapphires,"
although they did not then know of a sunrise to come. Yet even in
such a time as that, according to this poet, these hopeful natures
walked hand in hand "in the grateful evening mild," and held such
sweet converse with each other that they forgot all time, all
seasons and their change, for all pleased alike. Thus it was in the
beginning, and thus it will be at the end; for even in the darkest
as in the brightest hours hopeful humanity looks forward to
something better, as--
"Of better and brighter days to come
Man is talking and dreaming ever."
And who would have it otherwise? As sunshine is the most important
thing in the natural world, so it is the best thing in human life.
People with sunshiny dispositions are always happy and welcome
everywhere, whether on the road, in the sick-room, or in the halls
of gayety. They drive away the blues and bring in hope and good
cheer; without them, life would not be worth living.
The French philosopher Figuier was so impressed with the value of
sunshine in human nature that he taught that the rays of the sun,
which bring light and heat and life and all blessings to the earth,
are nothing but the loving emanations of the just spirits who have
reached the sun, the final abode of all immortal souls; and its
light and heat are the result of their effulgent goodness and
sunshiny dispositions.
Every traveller, then, who wishes to experience even the common and
apparent enjoyments of the way, should start out with a light heart and
rich in hope; but if he wishes to taste also the _latent_ enjoyments of
the way, he must have an observing eye, and the love of Nature in his
heart. It is astonishing how the systematic cultivation of the
observing faculties will develop in one the habit of seeing and
enjoying his environment. This habit grows as rapidly as heavenly
wisdom in one who has made an honest attempt to obtain a knowledge of
God, when--
"Each faculty tasked to perceive Him
Has gained an abyss where a dewdrop was asked."
What a source of pleasure, solace, and recreation, then, is open to
him who knows how to distinguish and appreciate the beautiful in
Nature! He hears in every breeze and every ripple of water a voice
which the uncultivated ear cannot hear; and he sees in every
fleeting cloud and varied aspect of Nature some beauty which the
ignorant cannot see.
"Earth's crammed with heaven,
And every common bush afire with God;
But only he who sees takes off his shoes."
There is truth in the quaint language of Platen: "The more things
thou learnest to know and to enjoy, the more complete and full will
be for thee the delight of living."
We frequently find that when two persons are placed in the same
situation, one will find much to enjoy while the other will not, and
simply because one has the love of Nature in his heart, and the
other has not. One person, living in the midst of the most beautiful
natural scenery, is not charmed by anything he sees on the earth or
in the sky. To him all Nature is like an empty barnyard, in which
there is nothing to inspire him with a noble thought or stir him
with a generous emotion. Another person living in the same vicinity
sees much in his surroundings to admire and to enjoy. He looks at
the sunset glows with delight; he sees beauty in the grass, and
glory in the flowers; he sees with admiration and awe the
storm-clouds, black and terrible, rushing together like veritable
war-horses, or piling themselves up like mountains, reverberating
with the artillery of heaven and tongued with fire; wherever he
looks nearly every prospect pleases; and to him Nature, like the
Scriptures, is new every morning and new every night. Such a person
is more likely to be a better neighbor, a better citizen, and a
better Christian than one who has not the love of Nature in his
heart. Ruskin says: "The love of Nature is an invariable sign of
goodness of heart and justice of moral perception; that in
proportion to the degree in which it is felt, will probably be the
degree in which all nobleness and beauty of character will also be
felt; that when it is absent from any mind, that mind in many other
respects is hard, worldly, and degraded." The love of Nature has
ever been characteristic of the greatest and the noblest minds. To
Wordsworth the meanest flower that blows gave him thoughts too deep
for tears; and to Christ the lily of the field was more beautifully
arrayed than Solomon in all his glory. Likewise we often find that
two travellers will pass together over the same route, and one will
see much to admire and to enjoy by the way, and the other will see
nothing to admire or to enjoy. The one who has an observing eye, and
enjoys beautiful and grand natural scenery, sees in every nook and
corner by the way some lovely flower or comely shrub to admire, and,
like Wordsworth,--
"Beside the lake, beneath the trees,
Fluttering and dancing in the breeze,
He sees the golden daffodils."
And he not only enjoys the present sight, but he enjoys the scene as
often as he thinks of it afterwards, as in imagination he views the
scene over and over again,--
"For oft when on his couch he lies
In vacant or in pensive mood,
They flash upon the inward eye
Which is the bliss of solitude;
And then his heart with pleasure fills,
And dances with the daffodils."
And in the common and unnoticed grass by the roadside or in the
field, he can see in each blade a system of masonry and architecture
that no human skill has ever been able to equal. The stem is very
slender, but is so elastic and strong that it waves gracefully in
the breeze and bends to the earth in the storm without breaking, and
assumes an upright attitude again. It is made up of delicate cells
and perfect and intricate channels, through which hidden currents of
life throb and flow as mysteriously as the vital blood through the
human frame. It is colored with an emerald tint of such beautiful
hues that it has been the despair of artists to imitate it in every
age. Ages and ages before the human hand learned its cunning, the
command went forth for grass to bring forth seed after its kind; and
to-day it is waving gracefully in every field, and crowned with the
same beautiful flowers and tasselled seed-vessels as of old. Men in
their haughty ambition have builded much larger structures. They
have erected towers, pyramids, obelisks, spires, monuments, and
triumphal arches, which have commanded the admiration of their
builders and of their fellow-men in every part of the world; but
every principle of their masonry and architecture is an imitation of
that in the humblest spear of grass. Thus every traveller on a
country road is surrounded by monuments more ancient, more
impressive, and more beautiful than the ancient or modern world can
show as the production of human hands.
He finds much enjoyment in the study of the forms and
characteristics of the different trees by the wayside. If the road
passes over highland, on a breezy day he can look down upon or
across the tops of undulating forest trees, whose swaying movements
remind him of the waves of the sea. He can see in each species not
only a variety in the color and form of its foliage, but some
characteristic which reminds him of some human being. The rugged oak
or apple tree recalls to his mind some sturdy man, of great strength
and honesty of character, with picturesque but awkward manners. The
gracefully swaying branches of the stately elm or weeping willow
remind him of some woman whose elegant form and manners make her as
lovely as the moon and as beautiful as light. The rapid and constant
motion of the foliage of the poplar and the aspen reminds him of
some nervous and excitable person who is never quiet or easy for a
moment. The prim spruce-tree suggests to him some person of formal
habits and primness of dress. The symmetrical maple and pine remind
him of some quiet and dignified character who is well balanced and
rounded at every point. The patriarchal tree which has outlived all
its companions and stands alone with few and withered branches, but
still raising its majestic head to heaven as if in supplication for
blessings on the earth, reminds him of some gray-haired person who,
full of years and rich in faith, after a well-spent life is
approaching and can almost see the other side of the river which
separates this life from the eternal world.
If he has a taste for domestic and pastoral scenery, it is gratified
as he views the green pastures and meadows, the waving grain-fields,
and the occasional gleam of water through the foliage. Ever and anon
he passes by some dwelling where the charms of culture have been
added to the charms of Nature. By kind treatment the grass-plat
before the door has become a refreshing piece of verdure. By careful
pruning and training the trees on the lawn have become objects of
beauty, and cast their graceful shadows over the velvety greensward
beneath. The woodbine tastefully trained over the porch, the
flower-bed in the yard brilliant with flowers, and the garden and
the fruit orchard in the field, all tend to cheer and sanctify human
life in such an abode. Perchance the road runs by some rural
homestead which reminds him of his own ancestral home, humble yet
beautiful to him, and all the scenes of his childhood come vividly
to mind as fond recollection presents them to view. He is once more
a barefoot boy, and all is outward sunshine and inward joy. He
slacks his thirst once more from the well by the door or at the
spring on the hillside; and he visits again the old familiar
play-ground, the lane through which the cows are driven, the brook
where the sheep are washed, the fish are caught, and the boys go in
swimming.
When the road leads him into the mountains or in sight of them, he
is charmed by their majesty and awed by their sublimity. A mountain
panorama presents all the characteristic phases of Nature and all
the moving variation of the atmosphere. At one time they are
cloud-capped and surrounded with fog, and then in an incredibly
short time they are glittering in a halo of sunlight. As one beholds
their majestic heads, around which the storms of centuries have
beat, disappear as twilight changes into night, he can but feel
oppressed with the gloom and melancholy of the scene. But in the
morning, when--
"Night's candles are burnt out, and jocund day
Stands tiptoe on the misty mountain-tops,"
he can but conclude with Ruskin, that "mountain scenery has been
prepared in order to unite as far as possible and in the closest
compass every means of delighting and sanctifying the heart of man.
Mountains seem to have been built for the human race, as at once
their schools and cathedrals, full of treasures of illuminated
manuscript for the scholar, kindly in simple lessons to the worker,
quiet in pale cloisters for the thinker, glowing in holiness for the
worshipper."
Then, again, a country road is a good place to become acquainted
with some forms of animal and vegetable life. The odors of growing
vegetation, the movement of squirrels and other creatures, and the
song of birds, all have a tendency to impress one with the idea that
the material world is animated with life. And when the sun pours
down a flood of glowing sunlight, and swathes the traveller and the
whole world with its glowing and life-giving beams, he realizes that
the sun is the source of every material blessing. In the city people
know in a general way that the sun is the source of heat and light,
and that he adds to their comfort and convenience, as do the
electric light and the fire on the hearth; but they hardly realize
that his rays are necessary for their existence, to say nothing of
their comfort, for even a week. But when a traveller in the morning
sees all animated Nature stirring and rejoicing with the throbbings
of warmed and rejuvenated life; when he looks out over the landscape
and sees the sun raising in misty vapors the water which supplies
our springs, lakes, and streams, and refreshes the earth in showers
of rain, he realizes that the sun is not only the fire which warms
the world, but it is also the mighty hydraulic engine of Nature.
These are some of the enjoyments of the way; but every thoughtful
and observing traveller knows that they cannot be enumerated. Like
Burroughs, "he is not isolated, but one with things, with the farms
and industries on either hand. The vital, universal currents play
through him. He knows the ground is alive: he feels the pulses of
the wind, and reads the mute language of things. His sympathies are
all aroused; his senses are continually reporting messages to his
mind. Wind, frost, rain, heat, cold, are something to him. He is not
merely a spectator of the panorama of Nature, but a participator in
it. He experiences the country he passes through,--tastes it, feels
it, absorbs it."
Neither is he confined to the material demonstrations of Nature for
his enjoyment of the way. Some of the greatest sermons and speeches
have been thought out on the road. A solitary traveller can think
calmly and thoughtfully on the great problems of life and death, and
can learn to appreciate the fact that "the gods approve the depth,
and not the tumult, of the soul."
* * * * *
University Press: John Wilson & Son, Cambridge.
End of Project Gutenberg's The Road and the Roadside, by Burton Willis Potter
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