Highway , a place over which the public have a right of passage. It may be a footpath, a bridle path, a cart way, or a road wide enough for vehicles of any kind to pass each other; and for many purposes there may be a highway over water, whether it bo a running stream or a lake. The origin of the word is not certainly known; but a simple derivation refers it to the time when all public roads were raised above the surrounding fields, by the addition of materials, for the purpose of securing a dry road bed. In English law it is usually called the king's highway, because by the theory of that law it was considered as having been originally given by him. In the United States a highway may exist by proscription, or by the dedication of the land to the public use by the owner, which may be expressed or implied from long and uninterrupted use by the public. But as highways are to be kept in repair by the public, no person can make a highway over his land by merely opening and surrendering it for that purpose, unless it be formally accepted by those having authority to do so; although this also may be implied from usage and lapse of time. With us, nearly all highways are now laid out by the proper officers; and, when laid out, they are generally either county roads or town roads.
The public have, by the right of eminent domain, full power to take land for this purpose upon making compensation to the owner. But the public can take only what it needs; and as it needs for the purpose of a highway only the right of passage, or, as it is called in law, the right of way (which is what the law calls an easement), it leaves the absolute property in the land to the original owner; and should the highway bo discontinued, the land would remain in the hands of the owner, free from the easement. Presumptively the abuttors upon a road, by which is meant those who own to it, own to the middle of it, subject to the public right of way. This ownership does not exist if the grant or conveyance to the abuttor expressly and distinctly limited him to the edge of the road; but merely bounding a piece of land by the road has not this effect, for by the road there is meant the middle or thread of the road. A highway may be discontinued and the easement lost, either by the express action of competent authority, or by a complete nonuser for a sufficient length of time.
The obligation of the public to keep highways in repair is not so far absolute as to give individuals injured by the neglect an action for damages unless so declared by statute; but in many of the states such actions are given, either against the town or county; and in most of the states municipal corporations existing under special charters are held liable to such actions on their implied undertaking with the state to keep their streets in safe condition.