§ 816. Control of property acquired by gift.

A public corporation may acquire by gift or grant, property, the transfer of ownership of which is conditional upon its use for a specific purpose. Familiar instances of this condition are to be found in donations of land for use as public parks or commons or for the construction of some specially designated public building.619 The use of this property is public in its character and the rule, therefore, stated in the preceding section with reference to a diversion of that use applies and the further principle obtains that a public corporation or even the sovereign cannot, without the consent of the donor, put the property to a use other than that included within the original condition.620 Land donated for the

construction of a public court house upon it cannot be used for other purposes, though they may be public; 621 neither can property donated for use as parks, public grounds or boulevards, be appropriated for any use not inconsistent with the donor's conditional grant.622 Such conveyances or grants are construed strictly in favor of the grantor and the language in each particular instance must determine the relative rights of the parties.625

§ 817. Rights of abutting owners.

The law in respect to some of the rights of abutting owners is unsettled. This condition on reason should not exist if the elementary principles relating to the creation, use and maintenance of highways be clearly understood and kept in mind at all times. A highway, as already defined, is a public way used for the purpose of public travel, for passing and repassing and as a mode of accesss to abutting property.62 Public highways are secured through dedication, prescription or the exercise of the power of

eminent domain and the fee of the land may be acquired or an easement only. The sole basis of the right of acquisition of land from private owners is its proposed public use for the well recognized purposes to which a public highway may be put.625 The former owner of the property retains certain rights in the land thus acquired by a public corporation, and these are limited by the character of the title secured being less where a fee passes and more where an easement only is acquired.626 Whatever the character of the title may be of the public highway as secured, there are, therefore, two parties interested; the public corporation holding the nominal title in trust for the public for its use and benefit as a public highway and its legitimate purposes, and the original owner of the property whose interests are twofold being first based upon the fact of servient ownership 627 and second on the further condition that, as an abutting property owner without regard to other circumstances, he is entitled not only to share in the general rights of the public but in addition he has a special and personal interest in access to his property, the improvements which he may have paid for and the further easements of light and air as coming from the highway.628 All these interests of the

625 See §§ 717 et seq.

626 Huffman V. State, 21 Ind. App. 449, 52 N. E. 713; Murray v. Norfolk County, 149 Mass. 328, 21 N. E. 757. Trees standing in a highway which become an obstruction may be removed without making compensation to the owner. Page v. Belvin, 88 Va. 985, 14 S. E. 843.

627 Town of Suffield v. Hathaway, 44 Conn. 521; Rockford Gaslight & Coke Co. v. Ernst, 68 Ill. App. 300. An abutter may recover of third persons for injuries to trees in the street in front of his premises who as against the city has no control over nor property in them. Esty v. Baker, 48 Me. 495; Adams v. Rivers, 11 Barb. (N. Y.) 390.

€28 Smith v. McDowell, 148 Ill. 51, 35 N. E. 141, 22 L. R. A. 393. But an abutter cannot because of

that mere fact, be permitted to use the street in a manner inconsistent with its due use by the public. Brakken v. Minneapolis & St. L. R. Co., 29 Minn. 41; Longworth v. Sedevic, 165 Mo. 221, 65 S. W. 260; Naschold v. City of Westport, 71 Mo. App. 508. A sidewalk in front of an abutter's property cannot be abolished nor the street unreasonably narrowed so as to destroy his rights.

Lahr v. Metropolitan El. R. Co., 104 N. Y. 268. "An abutting owner necessarily enjoys certain advantages from the existence of an open street adjoining his property, which belong to him by reason of its location, and are not enjoyed by the general public, such as the right of free access to his premises, and the free admission and circulation of light and air to, and

abutting owner are property rights.629 The acquisition and the use of the public highways is fundamentally limited by the purposes for which they are acquired and such limitations cannot be destroyed or eliminated or the elementary character of a public highway changed either by the legislature or bodies acting lawfully under its authority. A few special rights of abutting property owners will be considered directly in the immediately following sections and still others discussed indirectly in those sections relating to the extent of control by public corporations over public highways.630

§ 818. Legislative control as modified by the abutter's rights.

In a preceding section, the principle has been stated that all highways are subject to legislative control which may be exercised either by the state legislature or some public body to whom the authority is delegated. This control, complete and full as it is, includes, however, only that action which may be taken considering the character of the property over which the control is exercised and further limited by the special and peculiar rights of abutting property owners. Stated concisely in another way, the land acquired with accompanying burden of abutting property is secured for a special public use, namely, that of a public highway and all legislative action is limited by this character and this condition.632

through his property. These rights are not only valuable to him for sanitary purposes, but are indispensable to the proper and beneficial enjoyment of his property, and are legitimate subjects of estimate by the public authorities, in raising the fund necessary to defray the cost of constructing the street. He is, therefore, compelled to pay for them at their full value, and if in the next instant they may by legislative authority be taken away and diverted to inconsistent uses, a system has been inaugurated which resembles more nearly legalized robbery than any other form of acquiring property." Wolfe

v. Pearson, 114 N. C. 621, 19 S. E. 264; Perkins v. Ross (Tenn. Ch. App.) 42 S. W. 58. See, also, §§ 817 and 818, post.

629 Sorensen v. Town of Greeley, 10 Colo. 369; Brakken v. Minneapolis & St. L. R. Co., 29 Minn. 41; Story v. New York El. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. R. Co., 104 N. Y. 269; Reed v. State, 108 N. Y. 407; Dillenbach v. City of Xenia, 41 Ohio St. 207. Dillon, Mun. Corp. (4th Ed.) § 656a.

630 See §§ 797 et seq., ante. 631 See §§ 797 and 799, ante. 632 Transportation Co. v. City of Chicago, 99 U. S. 635; Dillon, Mun. Corp. (4th Ed.) § 712.

Extent of control a varying one. All streets are highways but not all highways are streets. Highways can be for the purpose of determining the exact extent of control and the liability of public corporations within whose jurisdiction they are situated divided. into urban and suburban. The legitimate uses to which urban. ways are and may be put vary in their degree and character from those which may be imposed upon suburban ways.633 The general power exists to repair, maintain, improve, use and control highways-this general power is restricted by the character of the way. The use of streets for the purpose of laying water or gas mains or pipes is clearly a proper one which cannot be said of a rural highway, and other apt illustrations familiar to all might be given here.634 Some of the proper uses of streets and rural ways