This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Some courts hold that the public rights to use land for a highway may be lost by adverse possession on the part of an individual, they taking the view that the maxim "Nullum tempus occurrit regi" is not applicable, since the ownership of the highway is to be regarded as vested in the municipality or quasi municipality, rather than in the state.45 Other courts, however, deny that a highway can be thus extinguished;46 and this
43. 15 Am. & Eng. Law, 396 et seq.; Elliott, Roads & Streets, Sec.Sec. 879-881.
44. 1 Lewis, Eminent Domain, Sec. 200 et seq.; 3 Dillon, Mun. Corp., Sec. 1160; 3 Mcquillan, Mun. Corp., Sec. 1405; Elliott, Roads and Streets, Sec. 877. See Oler v. Pittsburgh, C, C. & St. L. Ry. Co., 184 Ind. 431, 111 N. E. 619; Jones v. Aurora, 97 Neb. 825, 151 N. W. 958; Cham-bersburg Sboe Mfg. Co. v. Cumberland Valley R. Co., 240 Pa. 519, 87 Atl. 968. Compare Chenault v. Collins, 155 Ky. 312, 159 S. W. 834.
44a. See editorial note, 16 Columbia Law Rev. at p. 139; 3 Dillon, Mun. Corp., p. 1842.
45. City of Fort Smith v. Mc-kibbin, 41 Ark. 45, 48 Am. Rep. 19; Inhabitants of Town of Litchfield v. Wilmot, 2 Root (Conn.) 288; Dudley v. Trustees of Frankfort, 12 B. Mon. (Ky.) 612; City of Big Rapids v. Comstock, 65 Mich. 78; Meyer v. City of Lincoln, 33 Neb. 566, 29 Am. St. Rep. 500. 18 L. R. A. 146, 50 N. W. 763; Ostrom v. City of San Antonio, 77 Tex. 345, 14 S. W. 66; Knight v. Heaton. 22 Vt. 480.
46. Reed v. City of Birmingham, 92 Ala. 339, 9 So. 161; Hoad-ley v. City of San Francisco, 50 Cal. 265; Ulman v. Charles Street Ave. Co., 83 Md. 130; Bice v. Town of Walcott, 64 Minn. 459, would seem to be the better view, since the municipality, so far as it can be considered as the owner of the highway, is so merely as an agent of the state, and as any adverse acts by an individual constitute an obstruction of the highway, and are consequently a public nuisance, the effect of the opposite view is to validate, by lapse of time, a public nuisance, - a thing which, by the authorities generally, cannot be done.47
- Abandonment. There are a number of decisions to the effect that the abandonment and consequent extinction of a highway may be shown by nonuser, in conjunction with other circumstances.48 It is sometimes said that a highway is not lost by nonuser,49 but in this respect the same principle apparently applies as in the case of private easements;50 nonuser itself not extinguishing the highway, but being a circumstance to be considered with other circumstances, in determining whether there has been an abandonment thereof.
67 N. W. 69; City of Vicksburg v. Marshall, 59 Miss. 563; Thompson v. Major, 58 N. H. 242; Ho-boken Land & Improvement Co. v. City of Hoboken, 36 N. J. Law 540; Driggs v. Phillips, 103 N. Y. 77, 8 N. E. 514; Heddleton v. Hen-dicks, 52 Ohio St. 460; Com. v. Moorehead, 118 Pa. St. 344, 4 Am. St. Rep. 599; Almy v. Church, 18 R. I. 182, 26 Atl. 58; Ralston v. Town of Weston, 46 W. Va. 544. 76 Am. St. Rep. 834, 33 S. E. 326; Yates v. Town of Warren-ton, 84 Va. 337, 10 Am. St. Rep. 860. 4 S. E. 818.
47. Reed v. City of Birmingham, 92 Ala. 339. 9 So. 161; City of Visalia v. Jacob, 65 Cal. 434, 52 Am. Rep. 303, 4 Par. 433; Wolfe v. Town of Sullivan, 133 Ind. 331, 32 N. E. 1017; Territory v. Deegan, 3 Mont. 82; Driggs v. Phillips, 103 N. Y. 77; Simmons, v. Cornell, 1 R. I. 519. See 2 Wood, Nuisances, Sec. 936.
48. Beardslee v. French, 7 Conn. 125, 18 Am. Dec. 86; Greist v. Amrhyn, 80 Conn. 280, 68 Atl. 521; City of Peoria v. Johnston, 56 111. 45; People v. Cleveland, C. C. & St. L. Ry. Co., 269 111. 555, 109 N. E. 1064; Louisville, N. A. & C. Ry. Co. v. Shanklin, 98 Ind. 573; Larson v. Fitzgerald, 87 Iowa, 402, 54 N. W. 441; Holt v. Sargent, 15 Gray (Mass.) 97; Burgwyn v. Lockhart, 60 N. C. 264; Elliott, Roads & Streets, Sec.Sec. 1172-1177.
49. Thompson v. Major, 58 N. H. 242; Com. v. Mcnaugher, 131 Pa. St. 55, 18 Atl. 934; Galbraith v. Littiech, 73 111. 209; Mccarl v. Clarke County, 167 Iowa, 14, 148 N. W. 1015.
50. See ante, Sec. ;;77.
The statute occasionally provides that the failure to open a highway for use within a certain time after its establishment by statutory proceedings shall be regarded as an abandonment,51 and sometimes there is a provision that this shall be the result of a failure to use, for a period named, a highway which has been opened.52
- Effect of extinction. When the highway involves merely a right of user by the public, the owner of the "fee," upon the extinction of the highway, resumes entire dominion over the land, free from any rights in the public.53 Usually, the owner of the fee is the abutting proprietor, and thus the extinction enures to his benefit.54 In some jurisdictions there is a statutory provision that the abutting owner shall have the land in such case.55
When the "fee" is in the public, there is, by some cases, a reverter of the land to the original owner upon the extinction of the highway, upon the theory that the public, or rather the state, has merely a determinable
51. Trotter v. Barrett, 164 111. 262, 45 N. E. 149; Horey v. Village of Haverstraw, 124 N. Y. 273, 26 N. E. 532; Mcclelland v. Miller, 28 Ohio St. 488; Pickford v. City of Lynn, 98 Mass. 491; 15 Am. & Eng. Enc. Law, 406.
52. Mcrose v. Bottyer, 81 Cal. 122, 22 Pac. 393; Herrick v. Town of Geneva, 92 Wis. 114, 65 N. W. 1034; Freeholders of Mercer County v. Pennsylvania R. Co., 45 N. J. Law, 82; Barnes v. Midland Railroad Terminal Co., 218 N. Y. 91, 112 N. E. 926.
53. Harris v. Elliott, 10 Pet. (U. S.) 25, 9 L. Ed. 333; Benham v. Potter, 52 Conn. 248; Smith v. Horn, 70 Fla. 484, 70 So. 435; Waller v. River Forest, 259 111. 223, 102 N. E. 290; Steenerson v.
Fontaine, 106 Minn. 225, 119 N. W. 400; Blain v. Staab, 10 N. Mex. 743, 65 Pac. 177; Heard v. Brooklyn, 60 N. Y. 242; Lankin v. Ter-williger, 22 Ore. 97, 29 Pac. 268; Paul v. Carver, 24 Pa. St. 207. 64 Am. Dec. 649.
54. Thomsen v. Mccormick, 136 111. 135; Harrison v. Augusta Factory, 73 Ga. 447; Paul v. Carver, 24 Pa. St. 207, 64 Am. Dec. 649; Healey v. Babbitt, 14 R. I. 533; Dickenson v. Arkansas City Imp. Co., 77 Ark. 570, 92 S. W. 21, 113 Am. St. Rep. 170.
55. 15 Am. & Eng. Enc. Law, 420. See Scudder v. City of Detroit, 117 Mich. 77; Haseltine v. Nuss, 97 Kan. 228, 155 Pac. 55: Edwards v. Smith, 42 Okla. 544. 142 Pac. 302.
Fee.50 By other decisions, there is a fee simple, and not a mere determinable fee, in the public, and no right of reverter exists.57
- Turnpikes. Turnpikes are highways, the use of which by a member of the public is conditional upon payment by him of a certain fixed compensation or "toll." Turnpikes are usually, if not always, established by private corporations or associations of individuals, under authority granted by the state,58 and the right of way may be acquired under the power of eminent domain, as in the case of any ordinary highway.59 The proprietors of the turnpike usually have an easement onlv in the land for use as a highway,60 but may have the ownership or "fee."61 The turnpike must be kept in repair by the proprietors thereof, and for injuries caused by negligent failure to make repairs they are liable.62