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that the cities and towns might create them, by special grants, to individuals or companies.

9. But this view has long since been abandoned, and it is now entirely well settled that such a franchise in the highways can only be created by legislative grant. It is a franchise to carry passengers, and to demand tolls. This is one of the prerogatives of sovereignty, and only derivable through the action of the legislature. It must, therefore, in its very nature, be exclusive of all interference from any quarter subordinate to the authority from which it was derived. There can then, we think, be no question whatever, that the franchise of these street railway companies is exclusive of all competition, or interference in their business, except under the paramount authority of the legislature.

10. It was indeed made a question before us, how far it was competent for the legislature even, after granting an exclusive franchise of this character to one company, to virtually repeal it, by permitting other companies to come upon the same track and do a competing business. This is one of those things, where the legislative power of a state may sometimes do that indirectly, provided they act in good faith (which is always to be presumed), which they could not do directly. For instance, it could not be claimed that the legislature, after creating such a franchise, could, by a direct act of legislation, either repeal the charter, or take away the right of compensation by way of tolls or fare. But they may, nevertheless, allow other persons, either natural or corporate, to do a similar business in the same streets; or to do it, upon the tracks of an existing company, by making compensation to the other company, whenever in their judgment the public good requires it. In the one case, the grant being wholly independent, is understood to be made because the amount of travel is supposed to require two such modes of conveyance; and in the other, the compensation being regarded as an equivalent for the use.

11. But where the legislature do not grant a distinct company to do similar business along the same routes, it is fair to conclude that there is no purpose of abridging, or in any manner qualifying, the rights before conceded to a similar company. And the mere permission of a branch road to come upon the track of an existing trunk route, where the object, whether for the transportation of its own passengers, or to take up and set down other passengers along the line of the trunk route, is not specifically defined, is not, ordinarily, to be so construed, as to effect an essential abridgment of the rights and interests of the trunk line. All reasonable implications should be made in the opposite direction, both upon the ground that the legislature must be presumed to intend to act with entire justice towards the company first chartered, and first investing capital upon the route, and also, upon the ground that the provision for compensation clearly shows that there was no purpose of abridging the rights of the first company, by allowing the second company to run its cars over the track of the former.

12. It is upon this ground that we have come to the conclusion already stated in regard to compensation for the use of a trunk line by a branch company, when it diverts a portion of the traffic. But we cannot regard this rule of compensation, or the presumptions of law upon which it is based, as imposing any

restrictions upon the power of the legislature, or that the general law of the Commonwealth or the Constitution of the United States restrains the legislature, in regard to permitting subsequently chartered companies from coming upon the track of other and older companies. From the very fact that the franchise of street railways is made to exist only in the public easement of the highway, there arises a clear presumption, that the use of such tracks was intended to remain forever subject to the control of the legislature, and that they could either control such use, by legislation, or make it subject to the absolute control of the municipalities. It does not seem to us possible for the companies to escape this state of uncertainty, so long as their franchise is vested only in the public easement of the highway, unless they can induce the legislature to give them exclusive and independent rights in the highway, by express grant; and it is doubtful whether even this would bind future legislatures.

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13. A claim, for additional compensation to the abutters, has been maintained against such companies, in some states, wherever it becomes necessary to alter the grade of the streets in laying the rails, in such a manner as to cause special damage to such adjoining proprietors. But this, we think, unless allowed by special statute, is a virtual concession, that the laying a street railway may, certain contingencies, prove an additional servitude upon the soil, requiring compensation beyond that of the easement for the highway; and if this proposition be conceded, it will be impossible to escape the conclusion that the street railway is something distinct from the public easement of the highway. And if it be not a part of the same thing, and identical with it, then the owner of the fee of the land in which such easement exists, may always claim damages for the location of a street railway. But this is not the view of the rights of such companies which has generally been taken, or which we think sound.

14. On the other hand, if the street railway is only a part of the highway, inherent in the public easement, then no additional compensation to the landowner is due, in consequence of any alteration in the grade of the street or highway, unless granted by special statute. That will be only one of those legitimate contingencies which were fairly within the range of the purposes for which the easement of the highway was originally taken, and which should have been taken into account, and is therefore presumed to have been taken into account, in estimating compensation to the land-owner in the first instance. For, in assessing damages for a highway, there must be taken into the judgment, not only the present injury, from building the highway in the first instance, but from all future and allowable alterations of the same. And this will embrace, not only the accommodation of the way to the present modes of ordinary travel and transportation, but to all such modes of travel and transportation as may hereafter arise in the ordinary course of improvement, without extending it beyond the contemplated use of an ordinary highway. And if the street railway comes within this range, the fact that it is new, or that in some instances it may require to be accommodated with a different grade, to some extent, will be no ground for claiming additional compensation to the owner of the fee. This is often true in laying a plank road over an ordinary highway,

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but we are not aware that any additional compensation is ever required, on that account, in the case of laying a plank road upon an existing highway. So, too, in altering the grade of the highway, without introducing any change in the mode of construction, great injury may occur to the abutters, and one not contemplated, precisely in that form, at the time the land was taken; and still no additional compensation can be claimed, or allowed, unless by statute, since it comes within the range of the purpose for which the land was originally taken. Each party assumes the risk of any change in the use, or its entire abandonment as a highway. In the one case no additional compensation can be claimed, and in the other, there is no duty of refunding what is already paid by way of damages.

15. We must, therefore, to sum up the results of the argument upon this point, conclude, that the street railway companies in the Commonwealth, by the grant of their charters, acquired a franchise of a prerogative character, not liable to be intruded upon, after the location and construction of their roads, except by authority derived from the legislature, or by virtue of some condition annexed either to the grant or the location.

16. But we think, so long as the grant is not exclusive in terms, it must be regarded as a fair implication, from the fact of the franchise residing only in the public easement of the highway, that the legislative authority of the commonwealth has entire control of the use of such erections as are made by virtue of the first grant; and that it may, at any time, define such use by the public generally; and by natural or corporate persons, for transporting passengers for hire, by making compensation. And from the same view it must equally result, that the legislature may delegate the control of this use to the municipal authorities.

17. And consequently we have not been able to devise any legal mode in which the property rights of these companies can, with propriety, so long as they exist only in the public franchise of the highway, be made more secure. The franchise is exclusive of all interference except by authority derived from the legislature, but it exists where its continuance is only at the will of others who have the legitimate control of the highways.

18. If it is taken or interfered with, by the authority of the legislature, for merely public uses, such as the greater accommodation of public travel, then no compensation is demandable, since that is one of the conditions or contingencies upon which the grant was accepted. But so far as this franchise is taken, or interfered with, for the advancement of private ends and enterprises, the first grantee is entitled to full compensation, as much as for any other property.

19. This, then, although an exclusive franchise, so far as the carrying of passengers and taking tolls is concerned, is a mere estate at will, so far as the legislative power is concerned, or the general demands of the public interest may require, through the action of the municipal authorities.

*SECTION XV.

Conflicting Rights in different Companies.

1. Railway company subservient to another, | 2. Where no apparent conflict in route first can only take of the other land enough located acquires superior right. for its track.

§ 77. 1. Where the defendants' statutory powers were subject to those conferred upon the plaintiffs, whose charter was first granted, *providing that the plaintiffs' powers shall not be so exercised as to prevent the defendants from compulsorily taking and using land sufficient to construct their branch lines, not exceeding twenty-two feet in width, at the level of the rails, the plaintiffs having first purchased, with the consent of the owner, lands which the defendants proposed to take, beyond the twentytwo feet, for purposes of building stations, &c., it was held, that the plaintiffs having occupied the ground first, were entitled to hold so much as was not actually necessary for the formation of defendants' railway.1

2. Where two railway companies were incorporated to complete independent lines across the state, only the termini of either being prescribed, there being no apparent or necessary conflict of the routes, it was held, that the company which first surveyed and adopted a route, and filed the survey in the proper office, were entitled to hold it, without reference to the date of the charters, both being granted at the same session of the legislature.2

1 Lancaster & Carlisle Railw. v. The Maryport & Carlisle Railw., 4 Railw. C. 504; post, § 105.

2 Morris & Essex Railw. v. Blair, 1 Stockton (N. J.) Ch. 635.

A similar decision, in principle, is made in Gawthern v. Stockport, Disley & W. Railw., 29 Law Times, 308, Rolls Court, March, 1857. In this case the railway first chartered was laid out and partly built, but had been lying by some time, and the Master of the Rolls held, a subsequent railway was not precluded from interfering with the contemplated route of the first railway. One railway may be laid across the line of another company, but the latter will be entitled to damages, although the former is laid upon piles over tide water. Grand J. & Depot Co. v. County Commissioners, 14 Gray, 553. And it is here said, where * 164, 165

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3. His rights in the water subservient to pub-10, 11. Large rivers held navigable in this country.

lic use. 4. Legislative grant paramount, except the 12. Land being cut off from wharves is “innational rights. juriously affected."

5. State interest in flats where tide ebbs and 13. Paramount rights of Congress infringed Alous.

6. Rights of adjoining owners in Massachu

setts.

7. Railway grant to place of shipping.

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creates a nuisance.

Party specially

injured may have action.

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§ 78. 1. In regard to navigable streams, it seems to be a conceded point, that the owner of land adjoining the stream has no property in the bed of the stream, and hence that the legislature in England may give permission to a railway company to so construct their road, as to interfere with and alter the bed of such a stream, to the damage of any owner of adjoining land, in regard to flowage, or otherwise, even to the hinderance of accustomed navigation, without compensation; and that the railway company, in constructing their road within the provisions of the act, do not become liable to an action for damages, to any such proprietor of adjoining land.1

two railway companies file a joint location, they are jointly liable for damages to land-owners; and a location may refer to a plan so as to make that part of the location.

"The legisla

1 Abraham v. Great Northern Railw., 5 Eng. L. & Eq. 258. ture might authorize defendants to construct a causeway or bridge across navigable or tide-waters, although the navigation might be thereby impaired." And in a very recent case in the Queen's Bench (Jan. 1858), Regina v. Musson, 30 Law Times, 272, it is held that a pier, built into the sea, is not liable to the parish rates, except so far as it is above high-water mark. Lord Campbell, Ch. J. said, "As to the part between high and low-water mark, it is quite clear that the soil between high and low-water mark is in the Crown, and primâ facie extra parochial. If so, the onus lies on the parish of showing it is within the limits of the parish. That may be done by evidence of perambulating it, in the parish

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