We have before referred to rights as to the use of the land of an individual for a public or quasi public purpose, such as a right of way for a railroad, for a drain, or for irrigation purposes.1 These, however, though they involve a public use of the land, do not usually give a right of user to each member of the public, while the rights which we will now consider may ordinarily be exercised by any individual member of the public, or of that part of the public resident in a particular locality.

The most usual instance of a right, in each member of the public, thus to make use of another's land, exists in the case of a "highway" over private land; this being, in effect, a right of way in gross, in favor of each member of the public.

Though the existence of a highway does not, at common law, affect the ownership of the soil, which remains in the original owner, subject to use by the public for highway purposes, under some state statutes bearing upon the creation of highways, not only the right of user but the ownership, or "fee," as it is generally termed, of the land, is in the public, or in the state or municipality in trust for the public, in which case the rights of user in the public are not rights as to the

1. See ante, Sec. 365.





Parks, squares, and commons.


Customary rights.


Rights of fishing.


Rights of navigation.

User of another's land, but rather rights incident to ownership.2

- Creation. A highway may be created either (1) by "dedication" of the land by the owner to use ms a highway; (2) by prescription, - that is, user of the land by the public for highway purposes for the prescriptive period; or (3) by statutory proceedings, involving, if necessary, the taking of the land upon the payment of compensation under the power of eminent domain.

Statutory proceedings are usually, in the case of suburban highways, instituted by owners of land interested in procuring the establishment of the highway: and in cities, by the municipal authorities. All persons interested in the land over or through which the highway is to run are made parties to the proceeding; and it is the ordinary practice, in one proceeding, to determine the damages to be paid to the owners of the land utilized for the highway, and to apportion among the owners of the land to be benefitted thereby the cost of the undertaking. The preliminary question whether the proposed highway is necessary for the public welfare may be determined by the legislature, or delegated to the local authorities, or left to be adjudicated by the tribunal which determines the question of damages.

The question whether, by proceedings of this character, the ownership or "fee" of the land is vested in the public, or merely a right of user, is to be determined by the terms of the statute; and unless this plainly contemplates that the "fee" shall be appropriated, it is generally held that the public acquires a right of user only.3

2. The use of the word "fee" in this connection to designate the ownership, as distinct from the mere right of user, of the land, though sanctioned by almost universal practice, is unfortunate, since the word is properly descriptive of the duration of a right, rather than of its character, and its use erroneously implies that a mere right of user is necessarily less in duration than a fee.

3. 1 Lewis, Eminent Domain, Sec. 449; Elliott, Roads & Streets,

The dedication of land to the public for use as a highway, and the creation of highways by prescription, will be considered in another part of this work.4

- Rights of owner of land. When the public have a right of passage merely, the owner of the land or "fee" therein may use it in any way not interfering with its use by the public for passage.5 He is, in the ordinary case, alone entitled to cut and appropriate the trees,6 or herbage,7 within the highway limits, and to remove the soil or minerals under the highway.8 The municipal authorities may, however, remove trees, earth or stone for the purpose of opening or improving the highway, and by some decisions they may utilize materials so obtained for the purpose of repairing other parts of the highway.9

The owner of the land may bring ejectment against one unlawfully inclosing or encroaching within the

Sec. 254; 2 Dillon, Municipal Corporations, Sec. 589.

4. See post, Sec.Sec. 479, 514.

5. Elliott, Roads & Streets, Sec.Sec. 259, 876; 15 Am. & Eng. Enc. Law (2nd Ed.) 416; Cloverdale Homes v. Town of Cloverdale, 182 Ala. 419, 47 L. R. A. (N. S.) 607, 62 So. 712; Perley v. Chandler, 6 Mass. 454. 4 Am. Dec. 159; Glen-coe v. Reed, 93 Minn. 518, 67 L. R. A. 901, 101 N. W. 956; Daily v. State, 51 Ohio St. 348, 46 Am. St. Rep. 578; Lynch v. Town of Northview, 73 W. Va. 609, 52 L. R. A. (N. S.) 1038, 81 S. E. 833.

6. City of Atlanta v. Holliday. 96 Ga. 546, 23 S. E. 509; Crismon v. Deck, 84 Iowa, 344, 51 N. W. 55; Bigelow v. Whitcomb, 72 N. H. 473, 65 L. R. A. 676, 57 Atl. 680; Weller v. Mccormick, 52 N. J. L. 470, 8 L. R. A. 798, 19 Atl. 1101; Dalley v. State, 51 Ohio St. 348.

24 L. R. A. 724, 46 Am. St. Rep. 578, 37 N. E. 710; Sanderson v. Haverstick, 8 Pa. St. 294; Tucker v. Eldred, 6 R. I. 404.

7. Stackpole v. Healy, 16 Mass. 33. 8 Am. Dec. 121; Cole v. Drew, 44 Vt. 49, 8 Am. Rep. 363; People v. Foss, 80 Mich. 559, 45 N. W. 480, 20 Am. St. Rep. 532; Woodruff v. Neal, 28 Conn. 165; 1 Lewis, Eminent Domain, Sec. 853.

8. Town of Suffield v. Hathaway, 44 Conn. 521, 26 Am. Rep. 483; Aurora v. Fox, 78 Ind. 1; Deaton v. Polk County, 9 Iowa, 594; West Covington v. Freking, 8 Bush (Ky.) 121; Glencoe v. Reed, 93 Minn. 518, 67 L. R. A. 901, 10 N. W. 956; Higgins v. Reynolds, 31 N. Y. 151.

9. See Dillon. Mun. Corp.. Sec. 1149; 15 Am. & Eng. Encyc. Law (2nd Ed.) 417, 418.

Limits of the highway,10 or trespass against one who uses the land for a purpose not within the scope of its use as a highway,10a or who injures trees or herbage thereon.11

A city street is a highway, but a distinction is frequently asserted between such a highway and an ordinary rural highway, it being said that, while in the latter case the public have merely a right of passage, in the case of a city street there exists, besides this right of passage in individual members of the public, power in the municipal authorities to change the surface, to cut down trees, place sewers and pipes beneath the bed of the street, and in effect to exclude the owner of the land from any use thereof other than that of passage common to all individuals.12 The cases, however, which assert such a distinction do not usually decide that a use can be made of a city street which