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Legal Opinion of Charles E. Pratt

The following extracts from a legal opinion of CHARLES E. PRATT, Esq., seem to prove that Bicyclers have the same right to the use of highways or parkways that the owners of other vehicles have, and that they are not liable for damages if using due care.

ALL PERSONS MAY TRAVEL ON A STREET OR HIGHWAY IN THEIR OWN COMMON MODES OF CONVEYANCE; the use is general and open to all alike. When a street or thoroughfare has been created, and at least until it is lawfully discontinued, it is forever subservient to the right of every individual in the community to pass over the thoroughfare so created at all times-[Wager v. Troy, Union R. R. Co., 25 N. H. 532; Imlay v. Branch R. R. Co., 26 Conn. 255.]

And a street is a place in which all have a right to be, for streets are for the purposes of public travel; neither footmen nor teams, nor any class or variety of teams or carriages, have any right of way therein superior to others; they each have the right in common and equally with the other, and in its exercise are bound to use reasonable care for their own safety, and to avoid doing injury to others who may be in the exercise of the equal right of way with them. In the use of the highway, each may use it to his own best advantage, but with a just regard to the like right of others. -[Coombs v. Purrington, 442 Maine 332; Barker v. Savage, 45 N. Y. 196; Commonwealth v. Temple. 14 Gray 74.]

Under these and other decisions enforcing well-established principles of law, it is clear that if [page 14] bicycles are carriages and are used for travel, they and their riders are fully entitled to the streets: and if they are pleasure carriages and used as such, they are clearly entitled to share the common freedom of driveways or park carriage-ways equally with any other form of carriage.

When the steel and rubber bicycle was first imported into this country, it was claimed by the Collector of Customs at Boston that it was a machine and by the importer that it was a carriage, a difference of ten per cent. ad valorem duty giving rise to the dispute. The question was referred to the Department of Justice, and Mr. Secretary Sherman, upon an opinion of the Attorney General, in the autumn of 1877, decided it was a carriage, and so it has been considered in every court and every market in this country without question since.

The English Court of Queen's Bench, in the case of Taylor v. Goodwin, decided, all the justices concurring, that a bicycle is a carriage, and the propulsion of it by means of a person sitting on and carried by it is a driving of a carriage. [Law Journal Reports, part B, June, 1879, Vol. 48. N. S.]

The highest courts in this country have not yet passed upon the question, though it has been raised in one or two of the lower courts, where it has been held to be a carriage, following the English law.- [McFarland v. Browne, 1 Bicycling World 27.]

So that in every court and every judicial department where the question has been raised for decision, it has been held to be a carriage; and it is of some weight that by the city authorities in this country, when the question has been brought fully and fairly to their attention for decision, they have always decided that it was a carriage.

The Law Committee of the city of Brooklyn, acting after careful deliberation and in consultation with certainly competent legal advisers, made [page 15] a report on 26th April, 1880, to the Brooklyn Common Council, in which they stated: "As a matter of legal right, your Committee believe that bicycles are entitled to the use of the streets the same as other vehicles, no more or less, subject to the same rules, liable to the same responsibility, and their violation of the laws of vehicles to be visited with the same penalties. * * * In all courts where the question has arisen it has been without exception decided that the bicycle is a vehicle, and as such has equal right with other vehicles to the use of the streets without discriminating restrictions, and that no authority exists by which the peculiar form of a vehicle for its motive power can be arbitrarily determined to the exclusion of some other particular class. Your Committee believes this to be good law and common sense." And the City Council of Brooklyn acted accordingly and removed all restrictions.– [1 Bicycling World 242.]

Said Caton, C. J., in a leading case in the Supreme Court of Illinois: "A street is made for the passage of persons and property, and the law cannot define what exclusive means of transportation and passage shall be used. * * * To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age." - [Moses v. Pittsburg, etc., R. R. Co., 21 Ill. 522.]

It is clear, therefore, that bicyclers have a right to the use of the streets with their bicycles, subject to the same restrictions and regulations and under the same general principles of law as are applicable to other carriages.

They are entitled to the same freedom of the carriage-ways in parks, unless there are restrictions under some legal authority vested in the boards of commissioners for their exclusion not applicable to the case of other streets. [page 16] The general purpose of parks is the promotion of the health and happiness of the public; and within this general are several distinct and special purposes of the appropriation and dedication of parts of it: parts for ornament and vegetation; parts for walking, that is, for foot-ways; parts for riding, that is, for animal ways; and parts for driving, that is, for carriage-ways. The uses of some parts may be more restricted than those of others, according to their purposes, but all the parts must, for all the respective purposes to which they are dedicated, remain free and common to all the people.-[Langley v. Gallipolis, 2 Ohio St. 107.]

The ways in parks are of the nature of highways -- at least to the extent that is consistent with their respective uses and appropriations. The foot-paths are highways for pedestrians; the carriage-ways are highways for pleasure carriages, at least. -- They are streets, and -- the circumstance of their being within the limits of a park or "public square" does not alter the effect.-[Commonwealth v. Bowman, 3 Pa. St. 203.]

Public squares and highways, streets within parks and without them, belong to the public, and are under the control and regulation of the Legislature exercising the sovereign power of the State, either by general or special law. Neither the city nor the Boards of Commissioners can act otherwise than as agents of the State and within its authority.--[Commonwealth v. Temple, 14 Gray 74; 4 Abbott, N. Y. Dig. Rep., and St. 555 and cases cited.]

The right of travel in the highways and streets is one of those "privileges and immunities which are in their nature fundamental." The right of a citizen of one State to travel through the highways and streets of another State for peaceable purposes and pursuits is one of those privileges and immunities guaranteed by the Constitution of the United States (Article 4,) and which no State [page 17] Legislature can take away:- [Corfield v. Coryell, 4 Wash., C. C 380.]

The power of the State Legislature over roads and over navigable waters -- that is, highways by water or by land -- is substantially the same, and is one of regulation and construction, and not of obstruction or destruction, and its power is to be exercised under the restrictions of the United States Constitution and Acts of Congress regulating commerce between the States. It has power to provide police regulations, to govern the conduct of persons using the highways (for example, to regulate speed of travel, manner of passing, etc.), and to repair and alter them for the public benefit. -- [Cooley, Const. Limit. 731, 741, and cases.]

"Every thoroughfare which is used by the public, and is, in the language of the English books common to all the King's subjects," says Chancellor Kent, "is a highway, whether it be a carriage-way, a horse-way, or a navigable river." The law with respect to them is substantially the same. The Crown is a trustee for the public, and the use of them is inalienable as long as they remain highways. -- 3 Kent Comm. 427, 432.]

I have grave doubt whether any Act of the legislature of any State, prohibiting the use of bicycles under any reasonable regulations in the streets and highways of that State, or any considerable number of them located together, would be a valid or constitutional statute. In this connection the language of Gibson, C. J., in the case. of Comm. v. Bowman, 3 Pa. St. 203, is specially pertinent:

"County Commissioners have no greater right than an individual has to disturb the citizen in the enjoyment of a municipal franchise, at least beyond the bounds of absolute necessity. * * * The public square is as much a highway as if it were a street, and neither the county nor the public can block it up to the prejudice of the public [page 18] or an individual; nor can either assert a right to it by enclosing it beyond a reasonable curtilage. It is dedicated to the use of all the citizens as a highway, and all have a right to pass over it without unreasonable let or hindrance."

One other point may be referred to in passing which has perhaps been allowed too much force in some quarters heretofore, and that is the alleged dangerous and unwelcome aspect of bicycling to the horse-using portion of the public.

It is said that horses are frightened by it. The fact is that they are not, any more than they are at umbrellas. But if they sometimes are, it is to be remembered that the highest courts have decided that the drivers of horses have no more rights in streets or carriage-ways than those using other common modes of conveyance, and that the mere frightening of horses is neither actionable as a tort nor complainable as a nuisance, nor an obstruction which city officers or public boards are accountable for.-[Moses v. Pittsburg, etc., 21 Ill. 522; Cook v. Charlestown, 98 Mass. 80; Stone v. Hubbardston, 100 Mass. 50; Keith v. Easton, 2 Allen 552; McFarland v. Brown, 1 Bicycling World 27, and Macomber v. Nichols, 34 Mich. 212, is a very good case in point. ]

"An ordinarily gentle and well broken horse" is the kind of horse to be considered, according to the language of the courts, and these are not frightened by bicycles. The common experience of cities and towns may be well indicated by quoting the language of the London Standard (not especially favorable to bicycles) in commenting editorially upon a case before magistrates relating to tolls on turnpikes in August, 1879, "The prejudice against bicycles has all but disappeared in London; the horses are now accustomed to the machines and are no more frightened by them than by other vehicles; the riders themselves are very careful, and, the number of accidents caused by them is surprisingly small; [page 19] and people in general look with pleasure upon the flying wheels as they scud noiselessly along."

To sum up, however, upon the law as I find it, and the logic of the decisions as closely as I can apply it, my opinion is. in brief, that the driveways of parks are public streets for the purpose of pleasure travel at least; that all persons have a right to use the public streets with their own common carriages; and, therefore, that all persons have an equal right to use the drive-ways of parks with their own common pleasure carriages; that bicyclers are within that class; that the bicycle is a common pleasure carriage; and that, therefore, the bicyclers have an equal right to use the driveways of parks with their bicycles.

And further, that town or city or county governments or officers have no authority to exclude or to regulate so far as practically to exclude bicyclers from the public streets; that the Commissioners of Parks have no greater authority than such other governments or officers in the matter; and, therefore, that the Commissioners of Parks have no authority to exclude, or to make such restrictions as to practically exclude, bicyclers with their bicycles from the carriage-ways of parks.

CHARLES E. PRATT.

See also, " Outing," May, 1887. Legislation as to Bicycles in Highways. C. E. PRATT.

REFERENCES.

Section 162 and 163 of the "Highway Laws." Chap. 568, New York Sessions, Laws, 1890.)

Chapter 704, Laws of 1887. New York. Legislative enactment.

Decisions as to the Rights of Bicyclers may also be found in the "Bicycling World," as follows:

Vol. 1, No. 1 (Nov. 18th, 1879). -- Case of Brockton, Mass.; men who, riding on Sunday, frightened a horse. Sunday riding not unlawful.

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Vol. 1, No. 2, page 27 (Nov. 29th, 1879). -- Case of J. E. Brown, of Worcester, Mass., who frightened a milkman's horse. -- Not liable for damages.

Vol. 1, No. l9, page 313 (.July 24th, 1880). Legal opinion of F. C. & W. C. Larned, of Chicago, as to rights in the parks and incidentally in highways.

Vol. 1, No. 20, page 330 (August 7th, 1880). Same opinion continued.

Vol. 1, No. 22, page 368 (Sept. 4th, 1880). Case in India. Judge declares that bicycles have as much right to the use of highways as any vehicle.

Vol. 15, No. 4, (May 27th, 1887). -- Supreme Court, Mass., damage case.