220 BOARD OF AGRICULTURE. [Pub. Doc. 



It is important for the traveller to understand that it is 

 only that portion of the road used for travel that nuist be 

 kept free from defects. If the wayfarer drives on the un- 

 travelled portion of the road, he ordinarily does so at his 

 peril ; so that, if a traveller on foot where a sidewalk is 

 provided walks outside the limits and is injured by a defect,- 

 he has no redress unless his progress on the sidewalk was 

 somehow impeded, or unless it was out of repair. 



If there are dangerous objects so near the travelled jjortion 

 of the road, however, as to be likely to cause injm-y, they 

 will be classed as defects, unless a suitable railing or fence 

 protects a traveller from inadvertently straying on them ; 

 but it has been held that a dangerous place twenty-five feet 

 from the travelled road is not in such proximity to it as to 

 require a protection. 



It is only travellers on the highway who can hold a to\vn 

 responsible for defects. If a horse and carriage are hitched 

 outside the highway, and the horse gets loose and runs away 

 on the highway, and the horse or the carriage is injiu*ed by 

 a defect in the road, there can be no recovery. The fact 

 that the plaintiff' is playing in the street is usually a defence 

 in an action to recover damages. 



Ownership in the Fee of the Highavay. 

 The right of the public in highways is only an easement, 

 subject to the rights of the abutters or the owners of the soil 

 on either side, the owner holding title to the middle of the 

 road. The right of the public is sufficiently broad to protect 

 all individuals in the legitimate use of the highway, but such 

 right extends no further than this. Bej^ond that the public 

 cannot go, or they are guilty of trespass against the abutters 

 if they do so. "VNHiat is a legitimate use of the highway is a 

 question that has caused a great deal of litigation. The dif- 

 ficulty is, to apply the general principles to the particular 

 case in hand. Of course walking, riding or driving over 

 the highway constitutes a legitimate use of it. Running a 

 steam railroad over it would not be, and the abutters would 

 have the right to complain about it. It is now settled 

 everywhere that tlie use of tlu^ highway to sujiport tclegra})h, 

 telephone and electric light poles is legitimate ; also that 



