8. Since the second edition of this work, the decisions have been considerably numerous in regard to the right of railways

And it might have been regarded as the settled doctrine of the New York courts, until the case of Williamson v. N. Y. Central R., ante, n. 1, that the' owner of the fee of land dedicated to the use of a highway or street, and which the legislature devote to the use of a railway, had no claim upon the company for compensation, by reason of the additional servitude thereby imposed upon the land. Corey v. Buffalo, Corning, & New York Railw., 23 Barb. 482; Radcliff v. Mayor of Brooklyn, 4 Comst. 195; Gould v. Hudson River Railw., 2 Seld. 522. But this is now otherwise.

And, so late as January, 1857, the subject is elaborately examined by ViceChancellor Kindersley, in Thompson v. West Somerset Railw., 29 Law Times, 7, in relation to the cestuis que trust of a pier, over which the act of parliament, in express terms, authorized the company to construct their road, but which they had done without proceeding under the statutes, to appraise compensation, and the court held them trespassers, and an injunction was granted until the company made compensation.

And in a recent case in Indiana, the subject is considered, and although the authorities are not much reviewed, the conclusions of the court conform so closely to the broadest views of reason and justice, that we shall insert an extended note of the points decided.

A city ordinance authorized the construction of a railway, on either of two streets, through the corporate limits, under suitable restrictions as to grade. It was considered that the ordinance did not authorize the company to substantially alter the grade of the street. It was further:

Held, that besides the right of way, which the public have in a street, there is a private right, which passes to a purchaser of a lot upon the street, as appurtenant to it, which he holds by an implied covenant, that the street in front of his lot shall forever be kept open, for his enjoyment, and for any obstruction thereof, to the owner's injury, he may maintain an action.

The right which the owner of a lot has to the enjoyment of an adjoining street is part of his property, and can only be taken for public use, on just compensation being made, pursuant to the constitution. Tate v. Ohio & Miss. Railw., 7 Porter (Ind.), 479.

And in Haynes v. Thomas, Id. 38, where the cases are more fully examined, the same general propositions are maintained. It is there said, the right of the owner of a town lot, abutting upon a street, to use the street, is as much property as the lot itself, and the legislature has as little power to take away one as the other.

These general propositions are repeated, and somewhat varied, in the notes of this case. And although we think, upon principle, the right as against a railway company should be placed upon the basis of it being an additional and more oppressive burden and servitude upon the land, which entitles the land-owner to additional compensation, there can be, in our judgment, no manner of question of the general soundness of the above decisions. And the latter case, being that

to occupy the streets and highways, without making additional compensation to the owners of the fee of the lands across which the same are laid. The principles involved are much the same which have been already stated; but it will be important to the profession to know them in detail.

1. In a somewhat recent case12 it was decided, that the occupation of the highway by the track of a railway company, is the imposition of an additional servitude, and is the taking the property of the owner of the fee in the lands over which the same is laid, within those constitutional prohibitions requiring compensation where private property is taken for public use; and that consequently the company can acquire no right to such use, under legislative and municipal license, without compensation, and that there is no difference in this respect between railways operated by steam and by other motive power. But in another case it was held, that any legislative act empowering a railway company to occupy certain streets and avenues in the city of New York, should not be construed as not intended to give such permission without compensation.13 In the main, this case assumes the opposite ground from that declared by Craig v. Rochester City and Br. Railway Co.12 The question came up for revision in the Court of Appeals, in the case of the People v. Kerr,14 of the voluntary dedication of property, by the owner, for the purposes of a street and highway, is very well calculated to illustrate the hardship and injustice of wresting such use to the purposes of a railway, so much more burdensome and injurious. So that the general current of the American law upon this subject may now be regarded as the same with the English rule already stated.

Protzman v. Ind. & Cin. Railw., 9 Ind. R. 467; Evansville & C. Railw. v. Duk, 9 Ind. R. 433. See also Marquis of Salisbury v. Great Northern Railw., 5 C. B. (N. S.) 174, s. c. 5 Jur. N. S. 70.

12 Craig v. Rochester City & Br. Railw. Co., 39 Barb. 494.

13 People v. Kerr, 37 Barb. 357.

"It

14 27 N. Y. R. 188. This case must be regarded as settling the law in this state, notwithstanding some conflict in the decisions of their different supreme courts. The rule is thus laid down by Emott, J., in the case last cited. must be regarded as settled, in the jurisprudence of this state, that the appropriation of property to the construction or use of a railway for the transportation of property, is an application of such property to the use of the public. The doctrine applies to all railways, whether traversing the state or the streets of a city, and of course the motive power used does not affect the question. So, also, the uniform course of decisions and legal proceedings since Bloodgood v. Mohawk & Hudson Railw. (18 Wend. 1), and founded upon the principles there asserted,

where the court maintained the proposition that the construction of a city railway upon the surface of the streets, and without change of grade, is an appropriation of the land to some extent to public use, but the court held that the original owner of the fee of the streets in the city of New York had no such remaining interest as to justify any demand for compensation on his part, for reasons before stated.15

2. The same distinction, as to the right of the owner of the fee to demand compensation, between the use of the streets of towns and cities for the track of railways, and of highways in the country, is observed in many of the other states. Thus in two cases in Iowa this distinction is maintained.16

3. The question of the location of railways across or along the streets and highways of cities and towns, as well as in the rural districts, is extensively discussed in a late case in Maine, which came more than once before the courts.17 But most of the propositions here maintained are more or less affected by statutory provisions. It is here declared (which indeed is found in many other cases, and is sufficiently obvious in itself) that statutes regulating the operation of railways are to be considered as affecting only the general police of the state, and as applying equally to existing and future railways; but even matters of police affecting the construction of railways cannot reasonably be construed as having a retroactive operation, so as to require a railway company to undo and do over again the work of construction.

4. The cases 18 decided in Ohio, in regard to the use of highways and streets for the purpose of street railways, do not appear to be altogether decisive of the principle involved. It seems to be there regarded, that so far as a street or highway can be appropriated for such use, without appreciable damage to the is conclusive that it does not affect the question of public use in such cases, that the property applied to it is to be appropriated by a corporation or by individuals, and not directly by the state or the people, or that the road is not of a character to be actually used by any and every citizen with his own vehicle. 15 Ante, § 70, pl. 13.

16 Milburn v. City of Cedar Rapids, &c., 12 Iowa R. 246; Haight v. The City of Keokuk, &c., 4 Id. 199.

17 Veazie v. Mayo, 45 Me. R. 560; s. c. 49, Id. 156.

18 Crawford v. Delawne, 7 Ohio St. 459; Cincinnati & Spring Grove Avenue Railw. Co. v. Cumminsville, 14 Ohio St. 523.

owner of the land adjoining, that he is not entitled to any additional compensation, but that if, from change of grade or any other cause, there is any essential damage inflicted upon the abutters, by obstructing access to lands or buildings, or in any other respect, more than would have resulted from the use in the ordinary mode for a highway, the owner of the fee will be entitled to demand additional compensation.

5. But it is obvious that the difficulty, in point of principle, lies somewhat deeper. For although the rule there laid down, in point of equity, may be entirely just and reasonable, it must always prove embarrassing in practice, and compel an appraisement in each particular case, in order to insure security. The true principle undoubtedly is, that if the use is substantially the same as that of an ordinary highway, no additional compensation can be required; but if the use is new and distinct from that of an ordinary highway, the owner of the fee is entitled to additional compensation in every case, without reference to special damages; so that the question turns upon the point whether the use of a street or highway for the support of a railway track is using it for a highway only. As such use of the street for street railways is of necessity solely under municipal control, and is a use to which the municipal authorities might themselves devote the street by constructing the tracks at their own expense, allowing all travellers to use them with every species of carriage, it seemed natural to conclude that it could not be regarded as an additional servitude; but the current of authority seems to be setting in the opposite direction.

6. The present inclination seems to be to make no distinction between the use of streets by steam and street railways, and to require compensation in both cases alike.19

7. There are some few cases in different states which still adhere to the doctrine that the laying of a railway track for the passage of street railways, at the ordinary grade of the highway,

19 Ford v. Chicago and North Western Railw. Co., 14 Wisc. R. 609; City of Janesville v. Milw. & Miss. Railw. Co., 7 Id. 484; Pomeroy v. Chi. & Milw. Railw. Co., 16 Id. 640; Warren v. State, 5 Dutcher, 393; Veazie v. Penobscot Railw., 49 Me. R. 119. The same principle is maintained in Brown v. Duplessis, 14 Louis. Ann. 842. But by statute in this state the cities may sell the use of the streets for city passenger railway purposes.

is not an appropriation of any estate in the land to public use beyond that already appropriated by devoting the land to the use of a highway or street.20 And there is an elaborate opinion of Mr. Justice Ellsworth, of the Connecticut Superior Court,21 where the same views are maintained, and, as it seems to us, with more plausibility than any case we have found in the opposite direction.

8. The explanation of the singular vacillation of the courts upon the subject of railways being located on the highways, and whether the owner of the fee was thereby entitled to additional compensation, seems to arise in the following manner. At the first it was so common to designate steam railways as only an improved highway, that the courts, almost universally in this country, held the owner of the fee entitled to no additional compensation by reason of such railways being laid upon the highway, either across or along their route. But this view, upon more careful consideration, being found untenable, the retrocession of the courts from their former false assumption naturally gave them an unnatural impulse in the opposite direction, by which the conclusion was arrived at, that all railways must equally be an additional burden upon the fee. Whether the proper distinction between street railways and those occupying a distinct route and transacting mainly a distinct business will ever be clearly defined is perhaps questionable.

9. It seems very certain that the grant to a railway company of the right to pass along the streets of a city or town can confer no right to erect stations and other permanent structures in the streets, and thereby render them unfit for use as streets.22 In such cases the adjoining owners will be entitled to redress by way of damages, whether they own to the middle line of the street or only to the margin.22

10. But the owner of an unimproved building lot upon a street cannot be regarded as suffering any such injury from the location of a railway along the public street adjoining as will entitle him to an injunction.23 And the fact that the defendant

20 New Albany Railw. Co. v. O'Daily, 12 Ind. R. 551.

21 Elliott v. Fairhaven & Westville Railw. Co., 32 Conn. R. 579.

22 Lackland v. North Missouri Railw. Co., 31 Mo. R. 180.

23 Zabriskie v. Jersey City & Bergen Railw. Co., 2 Beasley, 314.