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A main road or thoroughfare, such as a street, boulevard, or parkway, available to the public for use for travel or transportation.
The nature of a public way is determinable from its origin, as well as the intention and plans of the appropriate authorities and the use to which it has been put. If a particular road or highway is designated as private, its character will not be altered if it is actually a public road or highway. Private Roads are intended for use by a few private individuals, as distinguished from highways that are for public use.
It is essential that a highway be established in a manner recognized by the particular jurisdiction, whether it be by extended use—prescription—or by dedication to the public by the owner of the property subject to the consent of public authorities. Prior to the time that any statutory procedure for the establishment of highways was devised, prescription and dedication were the methods used in common law. Currently, most highways are created by statute.
Extended Use or Prescription
One method of establishing a highway or public road is through prescription—the extended use of a piece of land for a certain length of time by the public, absent the owner's consent.
The actual number of persons using the road or the frequency or extent of such use is immaterial provided the property is openly and continuously used as a road with no restrictions. In addition, such public use must not be interrupted by acts of the owner that are designed to stop the use of his or her property as a public highway. For example, the posting of several "no trespassing" signs around the land and the erection of a fence would most likely prevent a highway from being recognized. Verbal objections alone, or unsuccessful attempts to curtail use as a highway, are ordinarily insufficient.
Any property subject to the right of the state to lay out a public way over it can become a highway by extended use if the conditions prescribed by statute are met. The public is given an Easement in the land as a highway, and the width and extent of a highway are determined by the extent of its actual use for such purposes.
The creation of highways is a function of the government that stems from its power of eminent domain—the authority to take private property for public use. The legislature makes the determination needed for public use and convenience and provides for establishment of highways by local boards or courts. In deciding whether the need for a highway exists, factors for consideration include topography, soil character, population, location, condition, convenience of highways already established or proposed, and the probable extent of use.
In the absence of statutory authorization, a highway cannot be constructed through lands of the state, or property that has already been designated for public use, such as a park. Additionally, some state laws proscribe the creation of highways through residences, buildings used for trade, gardens, or orchards.
Public officials, such as state highway commissioners, act on behalf of the particular county or Municipal Corporation upon which the state has conferred power to establish highways.
A highway and road district is a subdivision of the state, which the legislature creates to facilitate the administration of highways. The legislature defines and sets the territorial extent, limits, and boundaries of the road or highway district, and, generally, only lands that will be benefited are included. Highway boards and commissions are ordinarily responsible for the construction, improvement, and maintenance of highways.
Abandonment, Alteration, and Vacation
The right of the public to use a highway may be forfeited by abandonment. Nonuse might be considered Abandonment under statutory provisions. The evidence that a highway is in such a dangerous state of disrepair for a number of years that the public stops using it and a county fails to repair it constitutes abandonment in some jurisdictions. Where provided by statute, delay in opening a highway might be regarded as abandonment if it extends over an unreasonable length of time.
An alteration of a highway ordinarily refers to a change in its course that the state may effect in exercise of its Police Power. A proceeding for a change or alteration in a public road generally will not be brought unless the change will further safety, convenience, or other public interests.
Vacation of a highway occurs when its existence is terminated by the direct action of public officials. The authority to vacate is generally delegated to the appropriate authorities or local agencies. Certain statutes make the provision that highways may be vacated by a vote of the town in a town meeting. Ordinarily, highways cannot be vacated unless they are useless, inconvenient, or burdensome, and the grounds are usually regulated by statutes. A highway that has been laid out but not constructed may be discontinued due to a change of circumstances, such as where a variation in traffic patterns makes the proposed highway unnecessary.
The public only acquires the right to use a highway, whereas title to the land remains with the owner, subject to the public's rights. When a highway is constructed, the public has the right of way as well as privileges incident thereto, including the right to construct, improve, and repair the highway. When a highway is abandoned or discontinued, however, total and unlimited ownership reverts to the true owner.
An individual whose land abuts a public highway might have special rights, including the right to a reasonable passageway to the highway from his or her land.
Construction and Maintenance
The construction and maintenance of highways are assumed by either the state, local communities, or a specifically designated agency. The actual plan of work in constructing, maintaining, or repairing highways is in the discretion of the highway authorities, whereas the state legislature determines their routes. The designation and location of a federally-aided state highway must be in accordance with federal and state law. A state, in its construction of a highway under the federal-aid primary system might be required to obtain the approval of federal agencies if the highway has a marked effect on the environment. The authorities may make provisions for the drainage of surface waters and for the building of ditches and culverts.
The construction and repair of public roads may be funded by general taxation, since the public roads are for a public purpose. The power to impose highway taxes vests in the legislature, and funds may be raised from vehicle taxes, gasoline taxes, property taxes, the sale of bonds, or by special assessments on the property for the amount necessary to cover the costs of construction or improvement.
In 1998 Congress enacted a law (Transportation Equity Act for the 21st Century, Public Law (105-178) that required states to enact .08 as the blood alcohol count (BAC) needed to constitute the crime of driving while intoxicated. States that do not lower their BAC to meet this standard would lose federal highway funds. By 2003 two-thirds of the states had met this new federal standard.
The U.S. Transportation Department, established by Congress, works with the states to establish and maintain a national highway system (23 U.S.C.A. § 101 et seq.). Federal revenues pay for most of the national highway system. Congress may withhold portions of these funds if states do not enact certain laws related to highways or highway use and affecting inter-state commerce. For example, Congress may withhold funding if a state does not set the minimum age for alcohol consumption at 21 years; suspend, for at least six months, the driver's license of persons convicted of drug offenses; or prohibit driving under the influence of alcohol.
Any unauthorized obstruction that hinders the use of a public highway, such as a fence, gate, or ditch, is illegal and constitutes a Nuisance. Officials may, however, lawfully obstruct highways temporarily under their jurisdictions for a reasonable period to make necessary repairs or improvements. Anyone who causes or allows an obstruction to be placed on a public highway is liable and may be enjoined to compel its removal.
In addition, the authorities or private individuals who have sustained special damages—financial or other losses that differ from those incurred by the public—may sue for damages against one who obstructs a highway. What constitutes special damages is dependent upon the facts of each case. Special injury might exist where the obstruction blocks access to the plaintiff's property. In a number of jurisdictions the obstruction of highways is a criminal offense.
The state has the power to control and regulate the use of public highways, provided its regulations do not constitute an unreasonable interference with the right of travel or impede interstate commerce. The state may determine the character of motor vehicles that use its highways and may properly exclude vehicles weighing in excess of a maximum set by statute. A reasonable tax may be imposed on vehicles based on their excess weight in order to compensate the state for the additional costs of maintaining the highway as a result of the severe wear and tear placed on the road by such vehicles. To protect the public health, the state may prohibit trucks that transport chemicals or explosives from driving through populated or residential areas. The secretary of transportation regulates the safety performance of all commercial motor carriers transporting explosives or dangerous articles, such as flammable or radioactive materials, in interstate or foreign commerce. The state may restrict the speed of vehicles, or proscribe parking alongside the highway except in emergencies. Bicycles used on highways may be subject to reasonable restrictions, such as the requirement that they be equipped with lights at night.
The law of the road is composed of a system of rules and regulations based upon the traditional practices and customs that govern safe travel on highways. The law is often embodied in statutes or government regulations and is regarded as being so well-known that there is a legal presumption that everyone knows it. Highway travelers, therefore, may properly make the assumption that other travelers will observe the law and comply with rules and regulations. When an individual fails to observe the law of the road without justification, he or she will be held liable for injuries precipitated by the Negligence. A violation of a particular rule of the road may be justified by special circumstance.
King, Ledyard. 2003. "Delay of Road Bill Will Cost States." USA Today (September 23).
Lynch, James. 1986. "The Federal Highway Beautification Act after Metromedia." Emory Law Journal 35.
Queary, Paul. 2003. "Seat Belt Law Comes Under Fire." Seattle Post-Intelligencer (August 4).
n. any public street, road, turnpike or canal which any member of the public has the right to use, provided he/she/it follows the laws governing its use, such as having a driver's license if operating a vehicle. Thus, the use is really a privilege and not an absolute right.
highwaya road or way over which the public may pass as of right. It may be over land or water. Highways are created by statute, dedication or prescription. Preventing the public from freely, safely and conveniently passing along the highway may be a nuisance. Obstruction of the highway is an offence. See REGALIA MINORA.
HIGHWAY. A passage or road through the country, or some parts of it, for the
use of the people. 1 Bouv. Inst. n. 442. The term highway is said to be a
generic name for all kinds of public ways. 6 Mod R, 255.
2. Highways are universally laid out by public authority and repaired at the public expense, by direction of law. 4 Burr. Rep. 2511.
3. The public have an easement over a highway, of which the owner of the land cannot deprive them; but the soil and freehold still remain in the owner, and he may use the land above and below consistently with the easement. He may, therefore, work a mine, sink a drain or water course, under the highway, if the easement remains unimpaired. Vide Road; Street; Way; and 4 Vin. Ab. 502; Bac. Ab. h.t.; Com. Dig. Chemin; Dane's Ab. Index, h.t.; Egremont on Highways; Wellbeloved on Highways; Woolrych on Ways; 1 N. H. Rep. 16; 1 Conn. R. 103; 1 Pick. R. 122; 1 M'Cord's R. 67; 2 Mass. R. 127; 1 Pick. R. 122; 3 Rawle, R. 495; 15 John. R. 483; 16 Mass. R. 33; 1 Shepl. R. 250; 4 Day, R. 330; 2 Bail. R. 271; 1 Yeates, Rep. 167.
4. The owners of lots on opposite sides of a highway, are prima facie owners, each of one half of the highway,, 9 Serg. & Rawle, 33; Ham. Parties, 275; Bro. Abr. Nuisance, pl. 18 and the owner may recover the possession in ejectment, and have it delivered to him, subject to the public easement. Adams on Eject. 19, 18; 2 Johns. Rep. 357; 15 Johns. Rep. 447; 6 Mass. 454; 2 Mass. 125.
5. If the highway is impassable, the public have the right to pass over the adjacent soil; but this rule does not extend to private ways, without an express grant. Morg. Vad. Mec. 456-7; 1 Tho. Co. Lit. 275; note 1 Barton, Elem. Conv. 271; Yelv. 142, note 1.