58 N.H. 430 | N.H. | 1878
A person is "travelling upon a highway," within the meaning of Gen. St., c. 69, s. 1, when he is making a reasonable use of a highway as a way. He need not be on a long journey. Taking one step from his own door to the sidewalk, and another into his neighbor's house, he is travelling during the moment of his transit on the path laid out for the accommodation of the public. And, although the use of a highway as a way includes motion from one place to another more or less distant, continuous movement is not necessary. Such use does not cease with every cessation of locomotion. A person going for a physician, and meeting him accidentally in the street, may stop for a reasonable time, and at a reasonable time and place, to speak to him, without instantly terminating his rightful use of the way. And if he expects to meet the physician in the street, and goes for the reasonable and proper purpose of meeting him there, his use of the street is not wrongful on that account.
In Pearsall v. Post, 20 Wend. 111, 131, COWEN, J., says, — "The relative rights both of owner and passenger in a highway are perfectly understood and familiarly dealt with by the law. Subject to the right of mere passage, the owner of the soil is still absolute master. The horseman cannot stop to graze his steed without being a trespasser; it is only in case of inevitable or at least accidental *432 detention that he can be excused even in halting for a moment." But this is too great a limitation of the right of passage. A sum not exceeding three dollars is abated from the tax of any inhabitant who constructs and during the year keeps in repair a watering-trough, well supplied with water, sufficiently elevated and easily accessible for horses and carriages, if the selectmen deem the same necessary for the convenience of travellers. Gen. St., c. 53, s. 12. At such a trough, or at a brook, travellers may stop for water, though not inevitably or accidentally detained.
As the power of eminent domain is the public power of buying what is necessary for public use, and as a piece of land, including the fee, is not taken by that power when an easement is all the public needs, a highway taken by that power is not a public pasture, but a public way. The grass is a part of the land, and, with the soil and rocks, remains the property of the land-owner, subject to the public right of way. And although a traveller, making a reasonable use of the way as a way, is not liable for grass snatchingly taken, as he is not for mud or dust accidentally carried off by his horse, he commits a tort by grazing his horse on another's land on which he has only a right of way. But mere stopping is not necessarily a tort. It may be a reasonable use of a way as a way. In a crowded thoroughfare, at a railroad crossing, and at his own gate or door, the traveller may be obliged to stop. And as absolute necessity is not the test of his right to go upon the land on which he has a right of way, so it is not the test of his right to stop there. The easement is bought by the public when it is reasonably necessary for the public accommodation. The right, when bought, is the right of reasonably using the land as a way. And whether mere stopping, or stopping for any particular length of time, is such a reasonable use, is generally a question of fact depending upon the traveller's purpose and the circumstances of his case. The court may be required to determine whether there is any evidence upon which a jury can properly find that the traveller was making use of the way as a way, and whether his use was reasonable: but the question, whether stopping a certain time in certain circumstances is such a use, is not ordinarily a question of law. Babson v. Rockport,
A highway may be laid out as a means of public access to natural scenery, for the accommodation of pleasure-seekers. Higginson v. Nahant, 11 Allen 530. As was suggested in that case, a right of way over the top of Mt. Washington may be taken by eminent domain. Petition of Mt. Washington Road Co.,
A reasonable use may be made of highways for moving buildings, *433
unloading carts, and temporarily depositing goods, fuel, and building materials: and what is such a reasonable use is a question of fact. Graves v. Shattuck,
In Stinson v. City of Gardiner,
In Blodgett v. Boston, 8 Allen 237, the plaintiff, who at the time he was injured was eleven years old, testified that he was playing "old man on the castle," on a plank sidewalk in Washington street, and when another boy came to catch him, he in starting away put one of his feet between the planks, where it got caught, and in trying to lift it out he twisted it and caused the injury. The judge thereupon reserved the question whether the action could be maintained, and the whole court ordered judgment for the defendants, on the ground that the plaintiff was not in the use of the way for a purpose for which the city was bound to keep it in repair. But the application of the decision was carefully limited by the remark, — "We by no means intend to say that a child who receives an injury caused by a defect in a street, while passing over or through it, would be barred of all remedy against a town merely because he was also engaged in some childish sport or amusement. There would exist in such a case the important element that he was actually travelling over the way. But this element is wholly wanting in the case at bar. We have here the naked case of an appropriation of a portion of a public street to a use entirely foreign to any design to pass or repass over it for the purpose of travel, within the meaning of the statute. It is to this precise case that we confine the expression of our opinion." It being legally possible to cease moving forward or backward in a street without discontinuing a traveller's use of the street, and it being possible for a child as well as an adult to make a traveller's use of it for recreation, there may be some doubt how the line is to be drawn between the law and the fact in such a case as Blodgett v. Boston. Of the case of a boy injured while using a portion of the highway solely for the purpose of *435 enjoying the amusement of coasting, the court there say it would hardly be contended that the town could be held liable. Perhaps such a case should be considered in connection with the case of the boy's parents injured while using the same portion of the highway solely for the purpose of enjoying the amusement of a sleigh-ride. In the highway act there is no arbitrary rule of discrimination against the amusements of children, no prohibition of the use of gravitation as a motive power, and no requirement that a person going out to drive for amusement, or for fresh air, and health of body or mind, shall not turn in the road more than once, or shall not go over the same route more than twice.
In Tighe v. Lowell,
In Lyons v. Brookline,
In Hunt v. Salem,
Stickney v. Salem, 3 Allen 374, was an action brought by the administrator of one S. There was evidence that Hardy street was a highway leading to the sea. At its termination there was a sea-wall about eight feet high, and a wooden fence that had become defective. *436 A witness called by the plaintiff testified that S., who was about seventy-three years old, and lived on Hardy street, walked with him down to the fence for the purpose of showing him the harbor and surrounding objects, and stood for ten or fifteen minutes near the fence, pointing out to him various objects in and around the city and harbor, and engaged in conversation generally; S. then turned round, folded his arms, and leaned against the top rail of the fence lightly, and it gave way, and S. fell backwards over the wall on to the beach. The reasons given for setting aside the plaintiff's verdict were, that, taking the statement of the plaintiff's witness to be true, no cause of action was proved; his testimony showed that S. was not using the railing for a purpose for which the city was bound to erect and maintain it; if a person, without fault, is forced against a railing, or takes hold of it to aid his passage, or falls against it by accident, or has occasion to use it any way in furtherance of the lawful and reasonable exercise of his right as a traveller, and by reason of any defect it gives was and causes an injury, a town would be liable; but a town is not bound to erect and maintain railings for persons to sit upon or lean against; they are not intended to be used for the convenience of those who seek a place of rest while they stop in the highway to lounge, or to recover from fatigue, or to engage in conversation; if a person uses them for such purposes, he does it at his own risk; if he ties his horse to a railing, and in consequence of its being decayed the horse escapes, the town is not liable; as it appeared that S. leaned against the railing while engaged in conversation generally with his friend, and there was no evidence of any necessity or exigency which required him to use the railing at all, there was no room for an inference that he was in the exercise of a lawful right.
A person having been injured while taking a short walk in the street on Sunday, for gentle exercise in the open air, the town contended that if he was a traveller he could not recover because he was violating the Sunday law, and if he was not a traveller he had no right of action upon the highway law. In the opinion of the court he was not a traveller within the meaning of the Sunday law; and he recovered damages as a traveller within the meaning of the highway law. Hamilton v. Boston, 14 Allen 475; O'Connell v. Lewiston,
In McCarthy v. Portland,
In the present case, the formation of a procession for the decoration of soldiers' graves was not unlawful. In the absence of evidence showing its use of the street for forming, waiting, or marching, was unreasonable, its use may be presumed, as a matter of fact, to have been reasonable; and the plaintiff was not in fault as a spectator, approving and abetting a wrongful act. He was not an accomplice in any violation of law. As he passed along the street, he could rightfully look at the procession; and it is not matter of law that he had no right, as a traveller, to pass along for the purpose of looking at it. Nor is it matter of law that he could not stop an instant for that purpose, as a traveller. He had been standing in one place for that purpose from three to five minutes, when the lumber fell upon him. The law does not prescribe how long he could stand there without ceasing to use the way as a way. The question is one of reasonable use; and that is a question for the jury, if there is any evidence on which they could properly find the use was reasonable. We think there is such evidence; and the motion for a nonsuit was properly denied. Hardy v. Keene,
Judgment on the verdict.
STANLEY and CLARK, JJ., did not sit.