additional burden upon it for which the abutting owner is entitled to compensation, have lead the courts to the holding by an equally and as great a weight of authority that in the absence of a statute to the contrary 736 the use of a highway by a street railway does not impose an additional burden or servitude upon it as a legitimate use of the street, one which was intended or anticipated by the original owner and for which, therefore, he is not entitled to compensation.737 Special damages caused by the neg 736 See § 845, post. 737 Southern Bell Tel. Co. v. Francis, 109 Ala. 224, 19 So. 1; Miller v. Detroit, Y. & A. A. R. Co., 125 Mich. 171, 51 L. R. A. 955. "Street railways, in city and country, have come to be regarded as a public necessity, and their construction upon the highways universally sanctioned." Birmingham Traction Co. v. Birmingham R. & Elec. Co., 119 Ala. 137, 24 So. 502, 43 L. R. A. 233; Finch v. Riverside & A. R. Co., 87 Cal. 597; Elliott v. Fair Haven & W. R. Co., 32 Conn. 579; Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 Atl. 1107; County of Floyd v. Rome St. R. Co., 77 Ga. 614, 3 S. E. 3; Chicago & W. I. R. Co. v. General Elec. R. Co., 79 Ill. App. 569; Chicago, B. & I. R. Co. v. West Chicago St. R. Co., 156 Ill. 255, 40 N. E. 1008, 29 L. R. A. 485; Doane v. Lake St. El. R. Co., 165 Ill. 510, 46 N. E. 520, 36 L. R. A. 97; General Elec. R. Co. v. Chicago & W. I. R. Co., 184 Ill. 588, 56 N. E. 963; Eichels v. Evansville St. R. Co., 78 Ind. 261; Snyder v. Ft. Madison St. R. Co., 105 Iowa, 284, 75 N. W. 179, 41 L. R. A. 345; Ottawa, O. C. & C. G. R. Co. v. Larson, 40 Kan. 301, 19 Pac. 661, 2 L. R. A. 59; Ashland & C. St. R. Co. v. Faulkner, 106 Ky. 332, 45 S. W. 233, 51 S. W. 806, 43 L. R. A. 554; Briggs v. Lewiston & A. H. R. Co., 79 Me. 363, 10 Atl. 47; Taylor v. Portsmouth, K. & Y. St. R. Co., 91 Me. 193, 39 Atl. 560; Hodges v. Baltimore Union Pass. R. Co., 58 Md. 603; Poole v. Falls Road Elec. R. Co., 88 Md. 533, 41 Atl. 1069; Lonaconing M. & F. R. Co. v. Consolidated Coal Co., 95 Md. 630, 53 Atl. 420; Attorney General v. Metropolitan R. Co., 125 Mass. 515; Howe v. West End St. R. Co., 167 Mass. 46, 44 N. E. 386. Taylor v. Bay City St. R. Co., 80 Mich. 77, 45 N. W. 335. Abutting owners may however be entitled to compensation through special statutory provisions. Detroit City R. Co. v. Mills, 85 Mich. 634, 48 N. W. 1007. Legislative provisions authorizing the operation of a railway by horse or other animal power or by steam or by pneumatic or any other motive power or by any combination of them authorizes the use of electricity for the motive power although this was not discovered until after their enactment. Nichols v. Ann Arbor & Y. St. R. Co., 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371; Dean v. Ann Arbor St. R. Co., 93 Mich. 330, 53 N. W. 396; Elfelt v. Stillwater St. R. Co., 53 Minn. 68, 55 N. W. 116; Placke v. Union Depot R. Co., 140 Mo. 634, 41 S. W. 915. Hinchman v. Paterson Horse R. Co., 17 N. J. Eq. (2 C. E. Green) 75. Where the court in speaking of compensation with reference to a change in motive power said in part. "They are ordinarily, as in this case, required to be laid level with the surface of the street, in conformity with existing grades. No excavations or embankments to affect the land are authorized or permitted. The use of the road is nearly identical with that of the ordinary highway. The motive power is the same. The noise and jarring of the street by the cars is not greater, and ordinarily less than that produced by omnibuses and other vehicles in ordinary use." Hogencamp v. Paterson Horse R. Co., 17 N. J. Eq. (2 C. E. Green) 83; Roebling v. Trenton Pass. R. Co., 58 N. J. Law, 666, 34 Atl. 1090, 33 L. R. A. 129; People v. Kerr, 37 Barb. (N. Y.) 357; Brooklyn City & N. R. Co. v. Coney Island & B. R. Co., 35 Barb. (N. Y.) 364; Merrick v. Intramontaine R. Co., 118 N. C. 1081, 24 S. E. 667; Carolina Cent. R. Co. v. Wilmington St. R. Co., 120 N. C. 520, 26 S. E. 913. Joint use of bridge by a street railway company; additional servitude when imposed. Cincinnati Inclined Plane R. Co. v. Telegraph Ass'n, 48 Ohio St. 390, 27 N. E. 890, 12 L. R. A. 534; Schaaf v. Cleveland, M. & S. R. Co., 66 Ohio St. 215, 64 N. E. 145; Pennsylvania R. Co. v. Montgomery County Pass. R. Co., 167 Pa. 62, 31 Atl. 468, 27 L. R. A. 766; Lockhart v. Craig St. R. Co., 139 Pa. 419, 21 Atl. 26; Heilman v. Lebanon & A. St. R. Co., 145 Pa. 23, 23 Atl. 389; Cumberland Tel. & T. Co. v. United Elec. R. Co., 93 Tenn. 492, 29 S. W. 104, 27 L. R. A. 236; San Antonio Rapid Transit St. R. Co. v. Limburger, 88 Tex. 79, 30 S. W. 533; Ogden City R. Co. v. Ogden City, 7 Utah, 207, 26 Pac. 288; Reid v. Norfolk City R. Co., 94 Va. 117, 26 S. E. 428, 36 L. R. A. 274; Hobart v. Milwaukee City R. Co., 27 Wis. 194; Chicago & N. W. R. Co. v. Milwaukee R. & K. Elec. R. Co., 95 Wis. 561, 70 N. W. 678, 37 L. R. A. 856; La Crosse City R. Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923. Younkin V. Milwaukee, Light, Heat & Traction Co., 120 Wis. 477, 98 N. W. 215. Where it is held that an interurban line created an additional servitude as to points on the country highway and did not lose its character as such when passing through the city of Waukesha and that therefore it created an additional servitude upon the lots abutting on the street over which it passed. Nellis, St. Surface R. R. pp. 135 et seq. See Lewis, Em. Dom. (2d Ed.) § 115c. See, also, Philadelphia, W. & B. R. Co. v. Wilmington City R. Co. (Del.) 38 Atl. 1067; Georgetown & L. Traction Co. v. Mulholland, 25 Ky. L. R. 578, 76 S. W. 148; Green v. City & Suburban R. Co., 78 Nd. 294, 28 Atl. 626; Austin v. Detroit, Y. & A. A. R. Co., 134 Mich. 149, 96 N. W. 35; Ehret v. Camden & T. R. Co., 61 N. J. Eq. 171, 47 Atl. 562. The rule in the text above has been questioned of late in respect to the use of suburban highways by a street or interurban railway, so called. Note the following cases: Cedar Rapids & M. C. R. Co. v. Cummins, 125 Iowa, 430, 101 N. W. 176. By statute a railway extending beyond the corporate limits is known as an interurban line. Taylor v. Portsmouth, K. & Y. St. R. Co., 91 Me. 193, 39 Atl. 560; Cincinnati, L. & A. Elec. St. R. Co. v. Lohe, 68 Ohio St. 101, 67 N. E. 161. An interurban electric road, under the statute, is classed as a street railroad. Zehren V. Milwaukee ligent or unlawful construction of a street railway may, however, be recovered.738 § 845. The contrary doctrine. The contrary doctrine is held in the state of New York, and the abutting owner, even where the fee of the street is vested in the public, is entitled to compensation for its occupation by a street railway. The leading case establishing this rule 730 was decided. in 1868 and the arguments pro and con are well set out in the majority and the dissenting opinion. In the former, the court by Miller, Judge, holds in part: "The ground upon which these Elec. R. & Light Co., 99 Wis. 83, 74 N. W. 538, 41 L. R. A. 575. But see Montgomery v. Santa Ana Westminister R. Co., 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654. Newell v. Minneapolis, L. & M. R. Co., 35 Minn. 112, 27 N. W. 839, where the court say: "If it is, in fact, a passenger street railway within the city limits, how can it become anything else there because it becomes something else elsewhere? A person who desires to go from any part of Minneapolis to San Francisco has the same right to use the streets of the former city for the purpose of passing out of it on his way to his destination as a person who simply desires to pass from one place in Minneapolis to another in the same city. The use of the streets is just as legitimate, and just as clearly and completely a lawful and proper enjoyment of the public and common easement, in the one case as in the other." 738 Lorie v. North Chicago City R. Co., 32 Fed. 270; Alton & U. A. Horse R. Co. v. Deitz, 50 Ill. 210. 739 Craig v. Rochester City & B. R. Co., 39 N. Y. 404; McCruden v. Rochester R. Co., 5 Misc. (N. Y.) 59. "The amendment to the Constitution in 1874 did not at all affect the rule laid down in the Craig Case, 39 N. Y. 404. The legislature always had power to authorize the construction of street railways in any city. This they could do without compensation to the abutting owners, if the fee of the street was in the city while such owners were entitled to compensation if they had the fee." Peck v. Schenectady R. Co., 170 N. Y. 298, 27 N. Y. Law J. 165. The rule in the Craig case followed in obedience to the doctrine of stare decisis, Parker, C. J., dissenting. See, also, Wager v. Troy Union R. Co., 25 N. Y. 526, where it was said by the court: "With a single track, and particularly if the cars used upon it were propelled by horse power, the interruption of the public easement in the street might be very trifling and of no practical consequence to the public at large. But this consideration cannot affect the question of right of property or of the increase of the burden upon the soil. It would present simply a question of degree in respect to the enlargement of the easement and would not affect the principle that the use of a street for the purpose of a railroad imposed upon it is a new burden." cases are decided is, that the use of land for a railroad imposes an additional burden upon the owner of the fee. I am at a loss to see any apparent distinction in the application of the rule between cases where steam power is employed and those cases where the road is operated by horse power. It is true there is some difference in the manner in which the road is constructed, and in the speed with which its cars are propelled, at times; but there is precisely the same exclusive appropriation of the track for the purposes intended in each case, to the absolute exclusion of all who may interfere with its mode of operation. The power to use the road for the conveyance of passengers is entirely with the company, and no person can interfere with that method of conveyence, or with the right of the company to enjoy its monopoly. The use of the railroad, no matter how it is operated, whether by horse or steam power, necessarily includes, to a certain extent, an exclusive occupation of a portion of the highway, for the track of the road, and the running of its ears by the company, and a permanent occupation of the soil. It requires that all other parties shall stand aside, and make way for its progress. This is clearly inconsistent with the legal object and design of a highway, which is entirely open and free to all, for purposes of locomotion, travel and transportation. The enjoyment of the easement in a highway never confers an exclusive right upon any one who may have occasion to use it, while the laying down of rails, and the employment of cars, is to the detriment and exclusion of all others. at the time when the cars are running, and the restraint upon a free, undisturbed and general public use. It is an assertion of a right to the possession of the highway by the corporation, and an appropriation of it to private occupation, which, by lapse of time, might open into right, and vest a title in the company. Instead of being the exercise of a right of passage and repassage over a highway or a street, it cannot, I think, be denied, that it is sometimes an obstruction to travel, and the infringement upon the rights of the public, and owners of land. In narrow streets, where the rails of the road border close upon the sidewalk, it not only interposes · obstacles to the traveler, but inflicts injury upon the lot owner, by blockading up the way, and preventing a free access to the premises. The large and unwieldy vehicles which are used, which can only proceed upon a track laid for that purpose, with no capacity to turn out, so as to avoid or accommodate ordinary car riages, are often a source of annoyance and obstruction to the free passage of horses and carriages, for periods of greater or less duration, and are inconsistent with the use of an open and free passage of the highway." In the dissenting opinion written by Judge Mason and in which two judges concurred, the arguments in favor of the contention that the abutting owner is not entitled to additional compensation are well stated and will be quoted in part in the notes.740 740 Craig v. Rochester City & B. R. Co., 39 N. Y. on p. 414, dissenting opinion: "Those cases decide that the construction of a common railway to be run with steam-engines in a public street, without the consent of the owners of the fee of the street, is the imposition of a new use, and an additional burden upon the land embraced in the street, and is the taking of the property of the owner without compensation, and consequently is prohibited by the Constitution. There is certainly a broad distinction between these cases and that of a street railroad, with cars to be drawn by horses, at a speed of not more than six miles per hour. In the leading case of Williams v. New York Cent. R. Co. (16 N. Y. 97), the street was literally destroyed for any of the original common use for which the land was originally taken. With forty engines, and the trains which they draw, passing over the street daily, any use for carriages or common vehicles must be so very extremely dangerous, that the use of the street, for any such purpose, would necessarily be very limited, if not abandoned; and, besides, the railroad corpora tion, in such a case, takes the exclusive use of the street, and, in all these cases, actual and exclusive possession of the locus of the street is taken by the railroad corporations. In the case at bar, no such thing occurs. The construction of this railroad in the streets of the city of Rochester, and the operating of it, when completed, does not involve the taking of any title to the land. It is true, the iron rails are to be laid down in the street, but they are required to conform to the grade of the street, and as the same may be changed from time to time by the city authorities, and the rails to be six inches wide, and laid even with the surface of the street. The track of the road does not become the property of the railroad. All that the railroad corporation gets, is a license to construct and operate the railroad, but to be enjoyed, subject to the rules and regulations of the common council; and these regulations, in the case at bar, are well calculated to secure all the original public use of the street as an easement for public travel, and the common use for carriages and other vehicles, and no one is prohibited from passing over and along the track with teams and vehicles, but, on the contrary, these common rights are but little interfered with; all that is granted to the defendants is the right to use, not to take and hold, without at all excluding other persons from their former use of the same. The use |