Definition
Use by the public refers to the full range of lawful purposes for which the general public — including all classes of users such as pedestrians, vehicles, and others — may reasonably make use of a space, thoroughfare, or facility held open or dedicated to public access. The term carries two related but distinct applications in legal research:
1. Streets and public ways. In the context of municipal streets and public rights-of-way, "use by the public" encompasses every use that members of the public have a legal right to make of a street and that a governing authority could reasonably anticipate. This includes pedestrian travel, vehicular traffic, and incidental uses associated with ordinary access. The standard is objective and practical: it asks not merely what users happen to do, but what they are entitled to do and what a reasonable municipal authority should expect them to do.
2. Public use doctrine (eminent domain and dedication). In property law and constitutional takings analysis, "use by the public" is a foundational phrase in determining whether a governmental taking or a private dedication of land satisfies the "public use" requirement. Here the phrase asks whether the property or facility will be genuinely available and beneficial to the public at large, rather than serving purely private interests under a government-sanctioned transfer.
Common Confusion
"Use by the public" should not be treated as synonymous with "public use" as that term appears in the Takings Clause, though the concepts are related and mutually informing. "Public use" in constitutional doctrine has evolved substantially — from a literal requirement that the public have access to or use of taken property, toward a broader "public benefit" or "public purpose" standard. "Use by the public" as applied to streets retains a more literal and operational meaning: it concerns actual, anticipated, and legally entitled uses of a space, not a policy rationale for government action. Researchers conflating the two risk importing constitutional takings doctrine into municipal liability questions, or vice versa.
Why It Matters in Research
The phrase surfaces most often in two distinct research contexts that require different navigational strategies.
In municipal liability and street maintenance research, "use by the public" functions as a standard of reasonable anticipation. Courts asked whether a city breached its duty of care over a street will measure that duty against the full scope of uses the public was entitled to and reasonably expected to make. This means researchers cannot limit their search to vehicular traffic cases alone — pedestrian injury cases, cases involving cyclists, vendors, or others with lawful access to public ways are all within scope. The Kentucky authority Bouvier's cites (157 Ky. 648) reflects early-twentieth-century formulation of this standard; later cases in various jurisdictions expand or qualify the definition of "public" and "reasonably expected use," so historical sources should be checked against modern municipal code and tort doctrine.
In eminent domain and dedication research, the phrase connects directly to the long-running debate over how literally "public use" must be read. Researchers tracing the doctrinal shift from strict public-access requirements toward public-benefit analysis will find "use by the public" in older sources as a near-literal test, while modern sources treat it as one factor within a broader inquiry. This evolution means that pre-Kelo and post-Kelo materials may appear to answer the same question with incompatible standards.
Historical sources — including Bouvier's — treat "use by the public" primarily in the streets context and do not fully bridge the connection to constitutional takings analysis. Researchers should not assume that the street-law definition ports directly into eminent domain arguments without tracing the separate doctrinal lineage.
Historical Dictionary Support
Bouvier's Law Dictionary defines "use by the public" specifically within the entry for Streets, drawing on a Kentucky appellate decision for its formulation: all uses to which the public, including pedestrians, have a right to put streets, and to which the city may reasonably expect the public, including pedestrians, to put them. The definition is notable for two features. First, it is explicitly inclusive of pedestrians — a deliberate expansion beyond vehicular use that reflects awareness of how courts were being asked to limit municipal duty. Second, it anchors the standard in reasonable municipal expectation, not merely actual use, creating a forward-looking and anticipatory test.
Bouvier's does not address the constitutional "public use" dimension in this entry, reflecting the historically segmented treatment of street law and eminent domain doctrine. The gap between these two bodies of law is a research trap: older legal dictionaries generally handled them separately, even though the underlying phrase is shared. No other historical dictionary in the Law Mind corpus provides a dedicated entry for this term, making Bouvier's the baseline source for historical research while highlighting the need to supplement with treatise and case law materials for either doctrinal context.
Jurisdictional Note
The street-law formulation of "use by the public" varies by jurisdiction primarily in how broadly courts define the class of users and the scope of reasonably anticipated uses. Some jurisdictions have extended the standard to encompass non-traditional users or have codified anticipatory-use duties in municipal codes. The constitutional "public use" standard is nominally uniform after federal constitutional adjudication but has been significantly shaped by state constitutional provisions, several of which impose stricter requirements than the federal baseline established post-Kelo.
Encyclopedia Cross-Reference
Eminent Domain — Public Use Requirement (Kelo v. City of New London) (The Law Mind Property Law Encyclopedia)
Eminent Domain and Public Use After Kelo v. City of New London (The Law Mind Constitutional Law Encyclopedia)
Nuisance — Public Nuisance and Land Use (The Law Mind Property Law Encyclopedia)