Highway

Highway, a public road over which all persons have full right of way—walking, riding or driving. Such roads in England for the most part either are of immemorial antiquity or have been created under the authority of an act of parliament. But a private owner may create a highway at common law by dedicating the soil to the use of the public for that purpose; and the using of a road for a number of years, without interruption, will support the presumption that the soil has been so dedicated. At common law the parish is required to maintain all highways within its bounds; but by special custom the obligation may attach to a particular township or district, and in certain cases the owner of land is bound by the conditions of his holding to keep a highway in repair. Breach of the obligation is treated as a criminal offence, and is prosecuted by indictment. Bridges, on the other hand, and so much of the highway as is immediately connected with them, are as a general rule a charge on the county; and by 22 Henry VIII. c. 5 the obligation of the county is extended to 300 yds. of the highway on either side of the bridge. A bridge, like a highway, may be a burden on neighbouring land ratione tenurae. Private owners so burdened may sometimes claim a special toll from passengers, called a “toll traverse.”

Extensive changes in the English law of highways have been made by various highway acts, viz. the Highway Act 1835, and amending acts of 1862, 1864, 1878 and 1891. The leading principle of the Highway Act 1835 is to place the highways under the direction of parish surveyors, and to provide for the necessary expenses by a rate levied on the occupiers of land. It is the duty of the surveyor to keep the highways in repair; and if a highway is out of repair, the surveyor may be summoned before justices and convicted in a penalty not exceeding £5, and ordered to complete the repairs within a limited time. The surveyor is likewise specially charged with the removal of nuisances on the highway. A highway nuisance may be abated by any person, and may be made the subject of indictment at common law. The amending acts, while not interfering with the operation of the principal act, authorize the creation of highway districts on a larger scale. The justices of a county may convert it or any portion of it into a highway district to be governed by a highway board, the powers and responsibilities of which will be the same as those of the parish surveyor under the former act. The board consists of representatives of the various parishes, called “way wardens” together with the justices for the county residing within the district. Salaries and similar expenses incurred by the board are charged on a district fund to which the several parishes contribute; but each parish remains separately responsible for the expenses of maintaining its own highways. By the Local Government Act 1888 the entire maintenance of main roads was thrown upon county councils. The Public Health Act 1875 vested the powers and duties of surveyors of highways and vestries in urban authorities, while the Local Government Act 1894 transferred to the district councils of every rural district all the powers of rural sanitary authorities and highway authorities (see England: Local Government).

The Highway Act of 1835 specified as offences for which the driver of a carriage on the public highway might be punished by a fine, in addition to any civil action that might be brought against him—riding upon the cart, or upon any horse drawing it, and not having some other person to guide it, unless there be some person driving it; negligence causing damage to person or goods being conveyed on the highway; quitting his cart, or leaving control of the horses, or leaving the cart so as to be an obstruction on the highway; not having the owner’s name painted up; refusing to give the same; and not keeping on the left or near side of the road, when meeting any other carriage or horse. This rule does not apply in the case of a carriage meeting a foot-passenger, but a driver is bound to use due care to avoid driving against any person crossing the highway on foot. At the same time a passenger crossing the highway is also bound to use due care in avoiding vehicles, and the mere fact of a driver being on the wrong side of the road would not be evidence of negligence in such a case.

The “rule of the road” given above is peculiar to the United Kingdom. Cooley’s treatise on the American Law of Torts states that “the custom of the country, in some states enacted into statute law, requires that when teams approach and are about to pass on the highway, each shall keep to the right of the centre of the travelled portion of the road.” This also appears to be the general rule on the continent of Europe.

By the Lights on Vehicles Act 1907, all vehicles on highways in England and Wales must display to the front a white light during the period between one hour after sunset and one hour before sunrise. Locomotives and motor cars, being dealt with by special acts, are excluded from the operation of the act, as are bicycles and tricycles (dealt with by the Local Government Act 1888), and vehicles drawn or propelled by hand, but every machine or implement drawn by animals comes within the act. There are two exceptions: (1) vehicles carrying inflammable goods in the neighbourhood of places where inflammable goods are stored, and (2) vehicles engaged in harvesting. The public have a right to pass along a highway freely, safely and conveniently, and any wrongful act or omission which prevents them doing so is a nuisance, for the prevention and abatement of which the highways and other acts contain provisions. Generally, nuisance to highway may be caused by encroachment, by interfering with the soil of the highway, by attracting crowds, by creating danger or inconvenience on or near the highway, by placing obstacles on the highway, by unreasonable user, by offences against decency and good order, &c.

The use of locomotives, motor cars and other vehicles on highways is regulated by acts of 1861-1903.

Formerly under the Turnpike Acts many of the more important highways were placed under the management of boards of commissioners or trustees. The trustees were required and empowered to maintain, repair and improve the roads committed to their charge, and the expenses of the trust were met by tolls levied on persons using the road. The various grounds of exemption from toll on turnpike roads were all of a public character, e.g. horses and carriages attending the sovereign or royal family, or used by soldiers or volunteers in uniform, were free from toll. In general horses and carriages used in agricultural work were free from toll. By the Highways and Locomotives Act of 1878 disturnpiked roads became “main roads.” Ordinary highways might be declared to be “main roads,” and “main roads” be reduced to the status of ordinary highways.

In Scotland the highway system is regulated by the Roads and Bridges Act 1878 and amending acts. The management and maintenance of the highways and bridges is vested in county road trustees, viz. the commissioners of supply, certain elected trustees representing ratepayers in parishes and others. One of the consequences of the act was the abolition of tolls, statute-labour, causeway mail and other exactions for the maintenance of bridges and highways, and all turnpike roads became highways, and all highways became open to the public free of tolls and other exactions. The county is divided into districts under district committees, and county and district officers are appointed. The expenses of highway management in each district (or parish), together with a proportion of the general expenses of the act, are levied by the trustees by an assessment on the lands and heritages within the district (or parish).

Highway, in the law of the states of the American Union, generally means a lawful public road, over which all citizens are allowed to pass and repass on foot, on horseback, in carriages and waggons. Sometimes it is held to be restricted to county roads as opposed to town-ways. In statutes dealing with offences connected with the highway, such as gaming, negligence of carriers, &c., “highway” includes navigable rivers. But in a statute punishing with death robbery on the highway, railways were held not to be included in the term. In one case it has been held that any way is a highway which has been used as such for fifty years.

See Glen, Law Relating to Highways; Pratt, Law of Highways, Main Roads and Bridges.

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