will be considered in the following sections. The principle maintained in many cases of a difference in respect to nature and extent of public servitude and control between urban and rural highways is denied and with good reason by some of the later cases." L. R. A. 444; Johnston's Appeal (Pa.) 7 Atl. 167; Columbia Conduit Co. v. Com., 90 Pa. 307; Sterling's Appeal, 111 Pa. 35, 2 Atl. 105. 635 Eels V. American Telephone & Tel. Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640. "While concurring in the view that the easement in a public street in a city or village may well be greater as the actual necessities of the case are greater for sewers and gas and water pipes, yet in this case, as we have to deal only with the easement in a purely country highway, it is not important to discuss how the easement became greater in the one case than in the other, or as to the time when the right to the enlarged use of the highway or street attaches, or the method or means by which the right to such enlarged use was attained Density of population creates public necessities for water, light, drainage and other conveniences which do not exist in purely rural districts and along a purely rural highway. Yet the same land might alter from a country highway to a city street, and it might be determined that there was an implied dedication of the country highway at the time the land was taken to the uses which the future village or city street might require." Mr. Pierce, in speaking of the distinction between city and country highways, says: "But as both the highway and the street are appropriated for the same general pur 633 pose, and a highway in a district sparsely inhabited at one time may, by the growth of population, become a street in a city, this distinction does not appear to rest on a sound basis." Pierce, Railroads, 232. This doctrine has now become fully established in New York by the recent case of Palmer v. Larchmont Elec. Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672, wherein the court says: "But the owner of the fee in a country highway, taken, opened and dedicated for a public use, is entitled to no further compensation after the territory has become thickly settled and the highway has become a street of an incorporated city. This was recognized in the Eels case, and it is, therefore, apparent that, at the time the land was taken for a highway, it was impliedly dedicated to the uses which the public might in the future require." Lewis, Em. Dom. (2 Ed.) §§ 91c. et seq. "The public can no more take, without compensation, an easement for the urban uses of highways, than it can take, without compensation, an easement for the rural uses of highways. It follows, either that the public must have a very limited control and easement in country roads after they become city streets, or else that the easement is the same in both cases, and that the same principles are to be applied to both in determining what is a legitimate § 819. Abutter's special rights; lateral support. 636 One of the special rights of property owners is that of lateral support; ; he is entitled to the use of his land in its natural condition. This principle, however, by the weight of authority, excludes lateral support for artificial improvements which he may have erected or created.637 In the improvement, maintenance or control of a highway, the term used in its general sense, a public corporation cannot, therefore, take action that will result in a destruction or impairment of the lateral support to which every abutting property owner is especially entitled.038 Following the general rule stated above, this right of lateral support would exclude support for buildings or improvements." 639 § 820. Same subject continued; abutter's right to light, air and access. An abutting property owner is entitled in common with the public to the use of the highway and in addition to what may be termed an easement in the light and air that may come to his property by means or from a highway 640 and also the access to his property from it.641 A public highway is created not only for correct view, and the public easement may be defined as the right to use and improve the way for highway purposes as the public needs demand. 636 Thurston v. Hancock, 12 Mass. 220; Gilmore v. Driscoll, 122 Mass. 199; Buskirk V. Strickland, 47 Mich. 389; Nichols v. City of Duluth, 40 Minn. 389; Keating v. City of Cincinnati, 38 Ohio St. 141; Richardson v. Vermont Cent. R. Co., 25 Vt. 465; Stearns v. City of Richmond, 88 Va. 992. 637 Elliott, Roads & S. (2d Ed.) $ 205. 638 City of Rome v. Homberg, 28 Ga. 46; Roll v. City of Augusta, 34 Ga. 326; Hovey v. Mayo, 43 Me. 322; City of Pontiac v. Carter, 32 Mich. 164; Dyer v. City of St. Paul, 27 Minn. 457; Armstrong v. City of St. Paul, 30 Minn. 299; Hoffman v. City of St. Louis, 15 Mo. 651; White v. Yazoo City, 27 Miss. 357; Dodson v. City of Cincinnati, 34 Ohio St. 276; Keating v. City of Cincinnati, 38 Ohio St. 141. But see Taylor v. City of St. Louis, 14 Mo. 20; Parke v. City of Seattle, 5 Wash. 1, 20 L. R. A. 68. See, also, § 1, ante. 639 Transportation Co. v. City of Chicago, 99 U. S. 635; Mitchell v. City of Rome, 49 Ga. 19. But see Ladd v. City of Philadelphia, 171 Pa. 485; Stearns v. City of Richmond, 88 Va. 992. 640 Story v. New York, El. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. R. Co., 104 N. Y. 268; Drucker v. Manhattan R Co., 160 N. Y. 157; Stanley v. New York El. R. Co., 44 N. Y. State Rep. 889. the purpose of furnishing the public a means of passing and repassing, a way of travel for the community, but also as a means of egress from and ingress to the property of abutting owners. The general right of a public corporation to improve, repair, maintain or control public highways is, therefore, limited again by these special and peculiar rights of the abutting owner and action on the part of abutting authorities, affirmative or negative in its character that may cause the impairment or destruction of access to abutting property 642 or its use of the light and air as naturally available, will result clearly in a corporate liability. These 643 City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L. R. A. 370; State v. Berdetta, 73 Ind. 185; Chesapeake & P. Tel. Co. v. MacKenzie, 74 Md. 36; Gustafson v. Hamm, 56 Minn. 334, 57 N. W. 1054, 22 L. R. A. 565; Spencer v Metropolitan St. R. Co., 120 Mo. 154, 23 S. W. 126, 22 L. R. A. 668; Dill v. School Board of Education of Camden, 47 N. J. Eq. 421, 20 Atl. 739, 10 L. R. A. 276; Story v. New York El. R. Co., 90 N. Y. 122; Bischoff v. New York El. R. Co., 138 N. Y. 257, 33 N. E. 1073; Holloway v. Southmayd, 139 N. Y. 390; Edmison v. Lowry, 3 S. D. 77, 52 N. W. 583, 17 L. R. A. 275; Frater v. Hamilton County, 90 Tenn. 661; 19 S. W. 233; Hamilton County v. Rape, 101 Tenn. 222, 47 S. W. 416; Lewis, Eminent Domain (2d Ed.) sec. 91e, p. 170, citing many cases. 642 Hart v. Buckner, (C. C. A.) 54 Fed. 925; Jackson v. Kiel,13 Colo. 378; 6 L. R. A. 254; Pittsburg, Ft. Wayne & C. R. Co. V. Cheevers, 149 Ill. 430, 24 L. R. A. 156; Fossion V. Landrey, 123 Ind. 136, 24 N. E. 96; Dyche v. Weichselbaum, 9 Kan. App. 360, 58 Pac. 126; Eagle Tp., Highway Com'rs v. Ely, 54 Mich. 173; Gustafson V. Hamm, 56 Minn. 334, 22 L. R. A. 565; Loeber v. Butte General Elec. Company, 16 Mont. 39 Pac. 912. An electric pole may be so placed as to give an abutting owner no occasion to claim damages. Borough of Brigantine v. Holland Trust Co. (N. J. Eq.) 37 Atl. 438. The right of access includes the right to run electric wires into an abutter's buildings from poles lawfully erected in the street. Richardson & Boynton Co. v. Barstow Stove Co., 26 Abb. N. C. 150, 11 N. Y. Supp. 935. An abutting owner cannot use a sidewalk for driving and backing teams thereon. Wolfe v. Pearson, 114 N. C. 621; Mondle v. Toledo Plow Co., 6 Ohio N. P. 294; Kinnear Mfg. Co. v. Beatty, 65 Ohio St. 264, 62 N. E. 341. An abutting owner has no right to object to obstructions placed by other abutting owners upon a portion of a vacated street and which has reverted to them. Raht v. Southern R. Co. (Tenn. Ch. App.) 50 S. W. 72. But see Textor v. Baltimore & O. R. Co., 59 Md. 63. A gate at a railroad crossing necessary for public safety and authorized by law cannot be removed at the instance of an abutting owner because it obstructs the access to his premises. 643 First Nat. Bank of Montgomery v. Tyson, 133 Ala. 459, 32 So. rights, it has been repeatedly held, are property and vested rights incapable of damage or destruction without the payment of compensation."44 § 821. Abutter's rights in common with the public. An abutting property owner may also have a right in common with the public to the use of the highway for the legitimate purposes to which it may be enjoyed by the public.. A highway, as repeatedly defined, is a public way for the purpose of travel, of passing and repassing and the abutter clearly, as one of the public or of the community, is entitled to the rights that this condition or relationship affords him.645 The public corporation therefore, is again limited in the extent of its control and power over public highways by this right existing, as above stated.646 § 822. Right of abutting owners to use own property. The power of a public corporation to control or regulate the improvements or use of public ways is based upon their character and on the further fact that they are held in trust for the public for legitimate uses. This power of control and regulation clearly can go no further than the physical extent of the property 144, 59 L. R. A. 399. The easement of view from every part of public streets is an available right to the abutting property owner and will be protected by the courts against illegal encroachments. 644 See cases cited generally in this section. See this question fully considered in the N. Y. Elevated R. R. Cases, notably Story v. New York El. R. Co., 90 N. Y. 122, and Lahr v. Metropolitan El. R. Co., 104 N. Y. 268. See, also, Lewis, Em. Dom. (2d. Ed.) §§ 91e et seq., citing many cases. The principles are so well established that but few cases are given here. 645 Hetzel v. Baltimore & O. R. Co., 169 U. S. 26, reversing 7 App. D. C. 524; Hart v. Buckner (C. C. A.) 54 Fed. 925. An abutting owner has such a right in the adjoining highway as to bring a suit to enjoin its obstruction. Storm V. Barger, 43 Ill. App. 173; Earl v. City of Chicago, 136 Ill. 277; Indiana, B. & W. R. Co. v. Eberle, 110 Ind. 542, 11 N. E. 467. An abutting owner whose title extends to the middle of a highway cannot object to an obstruction in the other half of the street. Bradley v. Pharr, 45 La. Ann. 426, 12 So. 618, 19 L. R. A. 647; People v. Moore, 50 Hun, 356, 3 N. Y. Supp. 159; Drake v. Hudson River R. Co., 7 Barb. (N. Y.) 508; Parish v. Baird, 160 N. Y. 302, 54 N. E. 724. 646 Smith v. City of Leavenworth, 15 Kan. 81; Point Pleasant Land Co. v. Cranmer, 40 N. J. Eq. (13 Stew.) 81. acquired and is dependent upon the purpose for which held.647 Under this principle, public authorities have no power to regulate or control the use of private abutting property where such use does not interfere with the legitimate purposes for which the highway was created.648 Utilitarian purposes and not ornamental determine in general the legitimate uses of a highway. The establishment of a uniform building line on residence streets some distance back of the street line proper being an attempt to control private property and based upon no legal reason is, therefore, unlawful.649 Within the legal limits, however, of the highway, the corporation undoubtedly retains its complete power of control except as restricted by the suggestions made in this and preceding sections. § 823. Abutter's rights as dependent upon the passing of a fee or an easement. In addition to the special rights of abutting property owners stated in the last few sections and which they possess independent of the title acquired by the corporation in and to its highways, there are further rights dependent upon the extent of the title acquired. The public may acquire a fee of the lands occupied and controlled for highway purposes or it may legally obtain an easement only in this property, a reversionary interest vesting in the abutting owner. Upon the character of the title thus acquired will depend the rights of an abutting property owner in two particulars; namely, the personal use of a highway and the use of the materials which may be found within it. The right of the corporation to use materials will also depend upon the character of the title acquired. 647 Broadbelt v. Loew, 162 N. Y. 642, 57 N. E. 1105, affirming 15 App. Div. 343, 44 N. Y. Supp. 159. 648 City of St. Louis v. Dorr, 145 Mo. 466. 41 S. W. 1094, 42 L. R. A. 686; Thompson V. Androscoggin River Co., 54 N. H. 545; Edsall v. Howell, 86 Hun, 424, 33 N. Y. Supp. 892, construing N. Y. Laws 1863, c. 93, permitting the planting of trees along a roadside within a certain distance from the out ward line of the highway. City of Philadelphia v. Linnard, 97 Pa. 242. 649 City of St. Louis v. Hill, 116 Mo. 527, 22 S. W. 861, 21 L. R. A. 226; citing Thompson v. Androscoggin River Imp. Co., 54 N. H. 545; Wynehamer v. People, 13 N. Y. (3 Kern.) 378; City of Philadel phia v. Linnard, 97 Pa. 242; In re Chestnut St., 118 Pa. 593, 12 Atl. 585. |