Hoge, John Hampton

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Volume 38 Issue 3 Article 13 April 1932 Highways--Reasonable Highway Uses--Erection of Screens to Hide Billboards John Hampton Hoge West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Transportation Law Commons Recommended Citation John H. Hoge, Highways--Reasonable Highway Uses--Erection of Screens to Hide Billboards, 38 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol38/iss3/13 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. RECENT CASE COMMENTSthe elimination of this trap into which so many blunder withdisastrous consequences seems sustained by justice and commonsense. Yet one cannot but regret that the court did not see fitto overrule its previous decisions in express terms.-DONALD M. HUTTON.HIGHWAYS -. REASONABLE HIGHWAY USES - ERECTION OpSCRENS TO HIDE BILLBOARDS. - The Superintendent of PublicWorks of New York State has evidently taken to heart the amusingsatire by Stephen Leacock depicting George Washington marchingtoday through New Jersey and across the Delaware to Phila-delphia, guided by modern billboards.' And the Superintendent'smeans of remedying the situation is indeed a novel one. Landadjoining a highway had been leased for the purpose of erectinga billboard, and immediately the state erected a screen or boardupon the highway right of way to hide the billboard. In a suitto compel the state to remove the screen the state defended uponthe ground that its object was "to prevent motorists from seeingthe billboard and thus afford no reason for their taking their eyesoff the wheel". The court, however, found that this was not thepurpose of the screen, and, since it was not erected for a highwaypurpose, compelled the state to remove it.2'Whether the state has a fee in the right of way or only aneasement, modern cases seem to hold that the adjoining propertyowner is entitled to compensation, if the highway is used for apublic purpose, but a different purpose than that for which theproperty was originally taken. In either case the state takes only forthe particular purpose set out at the beginning.' As the taking ofexcusat, is in regard to the public; ignorance cannot be pleaded in excuse ofcrimes, but does not hold in civil cases."Martindale v. Falkner, 2 C. B. 719 (1846), Maule, J., "There is no pre-sumption in this country that every person knows the law, it would be contraryto common sense and reason if it were so."Thayer, P'esumptions and the Law of Evidence (1889) 3 HAV. L. REV.141, 165: "Many of these maxims and ground principles get perversely andinaccurately expressed in this form of a presumption, as when the rule thatignorance of the law excuses no one is put in the form that everyone is pre-sumed to know the law."155 HARPER's MAGAziNE 382 (1927).'Perlmutter v. Greene, 249 N. Y. Supp. 495 (1931).Spencer v. R. R. Co., 23 W. Va. 406 (1884); Davis v. Spragg, 72 W. Va.672, 79 S. E. 652 (1913); Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224(1877). See DnmoN, MumoPAT. CoroRATIONS (5th ed, 1911) § 1136,1Hoge: Highways--Reasonable Highway Uses--Erection of Screens to Hide BiDisseminated by The Research Repository @ WVU, 1932WEST VIRGINIA LAW QUARTERLYprivate property for other than public uses is denied, the erectionof the screen for other than a highway, or other public purposewould be wrongful.' But, regardless of whether the state ownedthe highway in fee or had only an easement, the screen wouldviolate such abutter's rights as means of access and right of view,which can be interfered with only by reasonable highway regula-tions.,The anxiety of the state to remove billboards is to be com-mended, but the means employed to remove them is perhaps notso praiseworthy, inasmuch as it creates two undesirable structuresinstead of one. A better approach to the difficulty would seemto be by billboard legislation. The modern trend of decisions uponzoning ordinances and billboard legislation would lead one to be-lieve that at least a mild legislative enactment regulating theplace and kind of billboards erected and placing a license taxupon the same would be sustained.' Courts may still refuse togive verbal support to aesthetic considerations and hunt for fanci-ful and fictitious grounds to sustain such legislation, but it seemsthat the time is not far ahead when courts will openly recognizethat some obnoxious sights are just as objectionable as obnoxioussounds or odors and will then go the limit in sustaining legisla-tion directed primarily at aesthetic purposes.-JOHN HAMPTON HOGE.INSANE PERSONS - REC IVERS. - July 1, 1931, W. E. Temple-man was adjudged of unsound mind and committed to an asylum.From this judgment he appealed. There was a refusal by theproper authority to appoint a guardian for Templeman until theappeal had been decided. Pending its decision his eleven yearold daughter, on July 8, 1931, filed a petition to have the courtappoint a receiver for her father's estate. She alleged that theinsane man's estate was being dissipated and was falling into'Secombe v. Milwaukee Ry. Co., 23 Wall. 108, 23 L. Ed. 67 (1874); Hentchv. Pritt, 67 W. Va. 270, 57 S. E. 808 (1910).'McCaffrey v. Smith, 41 Hun. (N. Y.) 117 (1886); Hyde v. MinnesotaRy., 29 S. D. 220, 136 N. W. 92 (1912); See DILLoN, op. cit. supra n. 3,§§ 1126, 1166, 1167, 1245; ELLIOTT: ROADS iA)N STunETS (4th ed. 1926) §§882, 883.'See Goodrich, Billboard Begulation, (1928) 17 CAL.. L. R. 120.2West Virginia Law Review, Vol. 38, Iss. 3 [1932], Art. 13https://researchrepository.wvu.edu/wvlr/vol38/iss3/13

Highways--Reasonable Highway Uses--Erection of Screens to Hide Billboards

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Highways--Reasonable Highway Uses--Erection of Screens to Hide Billboards

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