MUNICIPAL CORPORATIONS.

CHAPTER IX (Cont'd.)

PUBLIC PROPERTY.

I. ITS ACQUIREMENT.

(For Complete Analysis of this Subdivision see Vol. II, p. 1693.) II. ITS CONTROL AND USE.

(For Partial Analysis of this Subdivision see Vol. II, p. 1893, and its completion, Vol. III, p. 1981.)

III. ITS DISPOSITION.

(For Complete Analysis of the Subdivision see p. 2189.)

II. ITS CONTROL AND USE (Cont'd).

§ 835. Railroads in streets.

836.

837.

838.

839.

Classification of railroads.

Authority for occupation of highways

Power indirectly exercised.

Authority as dependent upon abutter's consent.

840. Abutting owner's compensation for use of highways by rail

ways.

841. The use of highways by steam railways regarded as an additional servitude.

842. Right to compensation as dependent upon abutter's interest in a highway.

846. Reasons for the difference in the rule as applied to steam

and street railways.

847. Abutting owner. When entitled to compensation.

848.

Elevated railroads.

849. Other street railroads.

850. General summary.

851. Railways in streets.

852. Construction of grant of authority.

853. Right to impose conditions for use of highways.

854. Conditions based upon the police power.

Abb. Corp. Vol. III

§ 855. Conditions imposed as revenue measures.

856. Conditions having for their purpose the maintenance of the

highway in its original condition.

857. The duty to restore and repair.

859.

Highway crossings.

860. Duty to restore and maintain.

861. Restoration of highways. The duty to construct overhead or underground crossings.

862. Highway crossings. Right of the public corporation to make. 863. Same subject. Duty to maintain and repair.

864. Temporary obstructions.

865. Concrete illustrations of temporary obstructions.

866. Limitations upon power of regulating temporary obstructions.

870. Miscellaneous uses of a street regarded as obstructions.

871.

872.

Miscellaneous uses of a street regarded as a nuisance.
Regulation of traffic.

882. Public highways or grounds must be legally established or

886. Use of public highways by agencies distributing water,

power or light and furnishing telephone and telegraph or transportation services.

887. Control of highways by public authorities.

888. Use of highways for above purposes.

889. Legal right to supply light.

890. Direct authority necessary.

891. Mode of establishing municipal plant.

892. Operation of plant.

893. Rules and regulations.

894. Other restrictions upon power to acquire and operate plants

for the supply of water and light.

895. Sale or lease of property.

904. Exercise of the grant; the element of time.

905. Same subject. Manner of exercise in respect to time and

place.

906. New streets or extension of corporate limits.

907. Change of commodity furnished.

908. Grant of license upon condition.

911.

Destruction of or injury to trees.

912. Regulation by public corporations, extent and character.
913. Character of right; regulation.

921. Licenses or privileges of an exclusive nature.

922. Legal power to grant.

923. Same subject continued.

924.
925.

Must be express authority. Manner in which granted. 926. Grant strictly construed.

927. Nature of grant or license.

928. Impairment of contract obligation by grantor of exclusive

license or privilege.

929. Forfeiture or revocation of grant or license.

930.

Assignment of exclusive privilege or license.

931. Grants to street railway companies.

932. Option to purchase.

933. Exclusive contracts for supply of commodity.

934. Additional servitude; subject further considered.

§835. Railroads in streets.

A very large proportion of the highways of this country are permanently occupied in part by railroads. The litigation in connection with this occupation has been great. The losses and annoy

ance suffered by abutting property owners has been a question for much discussion and the law still differs upon important questions in the different states. It is well known as a matter of common observation that there exists different classes of railroads and the law with respect to the rights of each of these divisions varies although in many cases upon an assumed rather than a real and substantial basis of difference. The kind of equipment and method of operation, a difference in motive power, the character of the services rendered, whether local or otherwise, have each in turn served as a basis for distinction in the application of conceded principles of law."

§ 836. Classification of railroads.

707

Mechanical and commercial conditions connected with the transportation of both freight and passengers are constantly changing in the United States and the future is likely to see as great a development and change as the past has witnessed It is an impossibility, therefore, to make a classification which will serve as a basis of a legal discussion by which any set of principles can be definitely stated as rigidly applying to one class of railroads and not to another. The extension of the trolley car system from a mere local street road, entirely within the limits of a village or city, to a system extending from one town to another and adapted and designed for carrying both passengers, freight and express matter, is a good illustration of a change which has very recently taken place and which must necessarily lead to a shifting of distinctions in a determination of the rights of both abutters and municipalities. The classification commonly adopted at the present time, however, is that of commercial or steam and street railroads, the latter including those constructed and intended solely for the transportation of local passenger traffic within and along the streets of towns and cities irrespective of the motive power whether that be horse, electric, steam or cable, and whether the road be upon, over or under the surface of the streets."

707 Massachusetts Loan & Trust Co. v. Hamilton, 88 Fed. 588, 32 C. C. A. 46. The word "railroad" has no such fixed meaning as will enable a court to decide whether it

708

applies to street railways without the use of other language. Kane v. New York El. R. Co., 125 N. Y. 164, 26 N. E. 278, 11 L. R. A. 640.

708 Williams v. City Elec. St. R.

§ 837. Authority for occupation of highways.

The highways of the country in common with all other public property are under the direct and ultimate authority of the different state legislatures as representing the law-making branch of the sovereign body.709 They have the right to grant the authority to persons or corporations to use these highways in a manner which, without that authority, would render the use a nuisance, an encroachment upon public rights and, therefore, liable to abatement and removal.710 The necessity for the legislative grant of a right of this character is entirely independent of the question of compensation for private property which may be taken in the large sense of that term in the exercise of the granted right. The legislature may itself directly grant to persons, natural or artificial, the right and power to construct and operate in, along and upon the highways within its jurisdiction, railways of all classes, and which, because of the existence of this legislative grant, are not to be regarded as public nuisances or as interfering with the

Co., 41 Fed. 556; Board of Railroad Com'rs v. Market St. R. Co., 132 Cal. 677, 64 Pac. 1065. Street railway companies are not railroad or transportation companies within the meaning of Constitution, art. 12, § 22, defining the jurisdiction of a railroad commission and authorizing it to establish rates of charges for the transportation of passengers and freight by railroad and other transportation companies.

Newell v. Minneapolis, L. & M. R. Co., 35 Minn. 112; Appeal of Montgomery, 136 Pa. 96, 20 Atl. 399, 9 L. R. A. 369. By the way the terms "railroad" and "railway" are used in the Constitution of Pa., art. 17, it is evident that "railroad" is applied to steam railroads and "railway" to street railways. Rafferty v. Central Traction Co., 147 Pa. 579.

709 Daly v. Georgia S. & F. R. Co., 80 Ga. 793, 7 S. E. 146; Davis v. East Tennessee, V. & G. R. Co., 87 Ga. 605, 13 S. E. 567, following Daly Abb. Corp. Vol. III — 1

v. Georgia, Southern & F. R. Co., 80 Ga. 793.

Prince v. Crocker, 166 Mass. 347, 44 N. E. 446, 32 L. R. A. 610. The legislature may provide for the construction of a railroad subway in a city without its consent though this deprives it, to a certain extent, of the control of the street. Powers given cities or town by general or special laws do not become vested rights as against the legislature. Com. v. Erie & N. E. R. Co., 27 Pa. 339. See, also, § 851, post.

710 Burns v. Multnomah R. Co., 15 Fed. 177. This power is limited, however, to grants of authority upon legal highways only. Brown v. Atlanta R. & Power Co., 113 Ga. 462, 39 S. E. 71; County of Stearns v. St. Cloud, M. & A. R. Co., 36 Minn. 425, 32 N. W. 91; State v. Corrigan Consol. St. R. Co., 85 Mo. 263. The principle applies only with respect to street railways.

Inhabitants of Burlington V.