(dissenting). I am unable to concur in a modification and affirmance of the judgment, as suggested in the opinion of Brother WILLIAMS.
The evidence shows that the quarrying of this stone involves the entire removal of the roadbed and the construction of a new road, and practically all that will be left of the present road will be the location; that this work will occupy probably seven years, and that during this time the roadbed will be occupied by the workmen and machinery of the defendant in removing the soil, preparing for the actual quarrying, and then in the removal of the stone. I think this shows that it is not a temporary use of the highway, and that the contemplated use by the defendants is so utterly inconsistent with the use of the premises as a highway as to destroy its usefulness for the passage of the public.
I find no fault with the general proposition that a temporary use of a highway by an adjoining owner, under certain circumstances, is justifiable, but it must not unreasonably interfere with the rights of the public. The fundamental doctrine is that the public is at all times entitled to the free and uninterrupted use of the highways, and any one seeking to exercise rights in the highway must do so in subordination to the general rights of the public as above stated. It seems to me impossible that a business such as quarrying stone may be conducted in a highway for a number of years without serious interruption to the rights of the public, and therefore it cannot be said to be a reasonable *533use. The proposition may be summed up in the statement that the use-of the premises as a highway and as a quarry are utterly inconsistent, and, the rights of the public being superior, the subordinate right of the owner must yield.
The evidence does not clearly show the cost of constructing the highway after the stone shall have been removed, but it would seem that common experience would indicate that such expense would be so great as to render the proposed reconstruction impracticable. While it may be said that the bond may be of sufficient amount to accomplish the rebuilding of the road, yet, unless we are satisfied that it is practicable, we ought not to inconvenience the public, or put the town authorities to the hazard of being compelled to reconstruct the road and recover the cost many years hereafter from the defendant, or, perhaps, its bondsmen.
I think the judgment should be affirmed.