Planning notes [Number 15, 25 August 1961]

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NO     THOROUGHFARE
OR
HOW   TO CLOSE A   STREET
W.  G.  Dodson*
While the proverbial statement "once a
highway always a highway" is generally true,
it is also subject to many exceptions and
qualifications. Insofar as the rights of the
public are concerned, a highway's existance
may be terminated either by vacating the
right-of-way or by abandonment of it. Vacating a street requires formal action by the City
Council while abandonment may be carried out
either by action showing a clear intent to
abandon or through neglect by the public to use
the thoroughfare.
The nature of the public right-of-way
eludes specific definition. Black's Law
Dictionary defines Right-of-Way thusly: "The
right of passage or of way is a servitude
imposed by law or by convention, and by
virtue of which one has a right to pass on foot,
or horseback, or in a vehicle, to drive beasts
of burden or carts through the estate of
another . . . . " In its strict meaning, then,
Right-of-Way is the right of passage over
another man's ground. The public easement
or right-of-way, is coextensive with the limits
of the street or highway and extends to its
whole surface. The public right-of-way is not
limited to the surface of the highway. It
extends both upward and downward for a
distance sufficient to accommodate as well as
to protect all proper uses to which the way is
subject.
The use of highways for purposes of
travel and transportation is not a mere
privilege, but a common and fundamental
right, of which the public and individuals
cannot rightfully be deprived. The rights of
the public to the use of highways cannot be
encroached upon by private individuals or
corporations. Moreover, streets and highways
are for the use of the public in general, for
passage and traffic without distinction; and all
persons have an equal right to use them for
purposes of travel by proper means, and with
due regard for the corresponding right of
others. The whole community has an equal
interest in and right to all the privileges and
advantages of the highways.
The right to use streets, however, is not
an absolute and unqualified right. No one person or group can exclude the rest of the public.
But,, equal right of all persons to use a street
does not mean that any person can us all
parts of it for all known modes of travel. The
convenience of the public in using a street
should not be allowed to outweigh a great and
disproportionate injury to private interests in
advancing the public convenience. The rights
of the public and of abutting owners must each
be exercised with due consideration for the
other.
As     important    as      streets     are    in    the
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IPEPAQTMCNTI
*City Planner,
Department of Planning