parkway or place, at any time when the same is open to the free use of persons having and using other pleasure carriages, except upon such driveway, speedway or road as has been or may be expressly set apart by law for the exclusive use of horses and light carriages. But nothing herein shall prevent the passage, enforcement or maintenancce of any regulation, ordinance or rule, regulating the use of bicycles or tricycles in highways, public streets, driveways, parks, parkways and places, or the regulation of the speed of carriages, vehicles, or engines, in public parks and upon parkways and driveways in the city of New York, under the exclusive jurisdiction and control of the department of parks of said city nor prevent any such commissioners, trustees, or other authorities in any other city from regulating the speed of any vehicles herein described in such manner as to limit and determine the proper rate of speed with which such vehicles may be propelled, nor in such manner as to require, direct or prohibit the use of bells, lamps and other appurtenances nor to prohibit the use of any vehicle upon that part of the highway, street, park, or parkway, commonly known as the footpath or sidewalk. (As amended by L. 1901, chap. 531; L. 1903, chap. 625 and L. 1904, chap. 540, in effect May 3, 1904.)

§ 164. Penalties, how recovered.-All penalties or forfeitures given in this chapter, and not otherwise specially provided for, shall be recovered by the commissioners of highways, in the name of the town in which the offense shall be committed; and when recovered, shall be applied by them in improving the highways and bridges in such town.

§ 165. Stone and rubbish not to be dumped in highways.-No stone or other rubbish shall be drawn to and deposited within the limits of any highway, except for the purpose of filling in a depression or otherwise improving the highway, with the con

sent of the commissioner of highways and under the direction of a commissioner or overseer of highways. (Added by L 1898, chap 352.)

§ 166-169b. Use of highways by automobiles.-Sections added by L. 1901, chap. 531 and repealed by Motor Vehicle Law (L. 1904, chap. 540.) See p. for this act.

RIGHTS OF ABUTTING OWNERS.

Title of contiguous owner to highway.-The owner or occupant of land contiguous to a street or highway has two distinct rights in relation to the street or highway, one which he enjoys with all citizens in common and one which arises from his ownership or occupancy of contiguous property. If he is owner of the fee of the highway, his title to the land covered by the highway is absolute and exclusive, subject only to the public easement for which the highway was acquired.

Rights in general.-The owner of the fee is entitled to the mines, quarries, springs, trees, herbage, earth, the right to drain, to mine, and to employ the soil for any purpose not inconsistent with the public right of way. He may divert a spring and use the water for his own purpose. He may carry water in pipes under the highway. (Dygert v. Schenck, 23 Wend. 446; Matter of Petition of Rhinelander, 68 N. Y. 105: Beck v. Carter, 68 N. Y. 283.) If trees are cut by the highway authorities in laying cut the highway, he is entitled to the tim ber, except so far as it may be used by the highway officers in front of his premises. (H. L., § 156.) The fruits or nuts of trees planted along a highway, or on branches which extend from his land over the highway, belong to him. If the fruit or nuts fall to the ground, they belong to the owner in fee, but if they are destroyed in consequence of the use of the highway for proper highway purposes, the owner of the fee is not entitled to damages. For the infringement of any of his rights he has all the ordinary remedies of the owner of the freehold. (Jackson v. Hathway, 15 John., 447; Gas Light Co. v. Calkins, 62 N. Y., 386.) He may maintain an action against one who unlawfully cuts and carries away the grass, trees and herbage, and even against one who stands on the sidewalk in front of his premises and uses abusive language toward him, refusing to depart; for such a use of the land constitutes a trespass as much as an entry on his inclosed premises. (Adams

v. Rivers, 11 Barb. 390; Carpenter v. Owego R. R. Co., 24 N. Y.,,655; Gidney v. Earl, 12 Wend, 98; Willoughby v. Jencks, 20 Wend., 96.) The land is his, subject only to the rights of the public to use it for highway purposes. He may sell it without subjecting himself to any liability (Whitbeck v. Cook, 15 John., 486; Washington Cemetery v. R. R. Co., 68 N. Y. 591) and if the highway is abandoned or discontinued, the land reverts to the original owner or his heirs or assigns.

Presumption in relation to the fee. The presumption is that the owners of land adjoining a highway are owners of the fee, if owning the land on but one side, to the center, or if owning the land on both sides, including the entire width of the highway. (Bissell v. New York Central Railroad, 23 N. Y., 61; Wa Vager v. Troy Railroad, 25 N. Y., 529.) The presumption, however, is one which may be rebutted, for one man may own the fee of the adjoining land and another the fee of the land covered by the highway. As a general rule, a conveyance which describes land as bounded along, upon, or to a highway, infers that the middle of the street was intended (Child v. Star, 4 Hill, 369; Hammond v. McLachlan, 1 Sandf., 323), while, if the boundary is described as by the side, running along the margin, or by the line of a highway, the fee to the highway is probably not conveyed. (Jones v. Cowman, 2 Sandf., 234; Augustine v. Britt, 15 Hun, 395.)

Fee in municipality.-Where the fee of the land covered by the highway is in the municipality, the abutting owner is entitled to light, air and free access to his premises, but apart from these he has no greater right to the highway in front of his premises than any other citizen, and this for the very simple reason that the title to the land is in another.

Carrying on business in highway.-The right of the public to an uninterrupted passage in a highway being paramount to the owner's rights in the soil, it will be unlawful for him to carry on any part of his business therein to the annoyance of the public. A temporary occupation by persons engaged in building, or in receiving or delivering goods from stores or warehouses, taking up or setting down passengers from a coach or omnibus, or the like, is allowed from the necessity of the case; but a systematic and continued encroachment is not allowable. (People v. Cunningham, 1 Denio, 524; Callahan v. Gilman, 107 N. Y., 360.) As to building materials necessarily placed in the street, the consent of the local authorities is usually required. The necessity of such occupation need not be absolute, excluding the possibility of performing the labor in a dif

ferent way, but must be reasonable under the circumstances. For instance, a wagon loaded with fuel may doubtless stand in front of a private dwelling for a sufficient time to unload, if reasonable and convenient, although there may be a temporary obstruction of the highway, and the fuel might be conveyed to the house in a different manner. It seems that one doing business in a populous city has the right to temporarily obstruct the sidewalk in front of his place of business, for the purpose of loading merchandise, but he should not unnecessarily incumber the sidewalk, or continue the obstruction for an unreasonable length of time. This right has, however, been questioned. (Richardson v. Barstow [Sup. Ct., Sp. T.], 36 N. Y. State Rep'r, 983.) This subject is discussed more at length under the subject of encroachments and obstructions, §§ 104, 105,

ante.

ARTICLE VII.
Regulation of Ferries.

Section 170. Licenses.

171. Undertaking.

172. Appendages for rope ferries.

173. Superintendent of public works may lease right of passage. 174. When schedules to be posted.

§ 170. Licenses.-The county court in each of the counties of this state, or the city court of a city, may grant licenses for keeping ferries in their respective counties and cities, to such persons as the court may deem proper, for a term not exceeding five years. No license shall be granted to a person, other than the owner of the land through which that part of the highway adjoining to the ferry shall run, unless the owner is not a suitable person or shall neglect to apply after being served with eight days written notice from such other person of the time and place at which he will apply for such license, or having obtained such license, shall neglect to comply with the conditions of the license, or maintain the ferry. Every license shall be entered in the book of minutes of the court by the clerk; and a certified copy thereof shall be delivered to the person licensed. When the waters over which any ferry may be used, shall divide two counties or cities, or a county and city, a license

obtained in either of the counties or cities shall be sufficient to authorize transportation of persons, goods, wares and merchandise, to and from either side of such waters.

Cross references.-Regulation of ferries by boards of supervisors. See County L., § 78, post. Maintenance of a ferry without authority is a misdemeanor. (Penal Code, § 415.)

Notice must be given to owner of land adjoining ferry. Matter of Talcott, 31 Hun, 464.

§ 171. Undertaking.—Every person applying for such license shall, before the same is granted, exceute and file with the clerk of the court his undertaking, with one or more sureties, approved by the court, to the effect that he will attend such ferry with sufficient and safe boats and other implements, and so many men to work the same as shall be necessary during the several hours in each day, and at such rates as the court shall direct.

§ 172. Appendages for rope ferries.-Any person licensed to keep a ferry may, with the written consent of the commissioners of highways of the town where such ferry nay be, erect and maintain within the limits of the highway, at such point as shall be designated in such consent, a post or posts, with all necessary braces and appendages, for a rope ferry.

173. Superintendent of public works may lease right of passage. The superintendent of public works where ferries are now maintained at tide water, lease the right of passage for foot passengers across state lands adjoining tide water for a period not exceeding ten years, on such conditions as he may deem advantageous to the state.

§ 174. When schedules to be posted.-Every person licensed to operate or control any ferry in this state, or between this state and any other state, operating from or to a city of fifty