1001

supply them requires the occupation, to some extent, of the public streets; a use which cannot be justified under the strict principles of law relating to public highways but which is considered legal because of the conditions and reasons noted above. The occupation of highways by railroads both steam and street, telegraph and telephone lines, has been already considered 1002 and the distribution of water and light will now be discussed.

§ 887. Control of highways by public authorities.

Whatever the use to which public highways may be put and however authorized, it still remains true that they are created primarily as a means of travel that all other uses are subordinate,1003 and that the public authorities ever retain the right to control and regulate an occupation or use of them in such a manner as to best preserve them for the original purpose for which they were established.1004 This control and regulation is vested in the state which has the unquestioned power of delegating directly or by implication the right of local regulation to inferior public agencies because these may be best fitted to accomplish the desired

1001 Smith v. Metropolitan Gaslight Co., 12 How. Pr. (N. Y.) 187; Taylor v. Portsmouth, K. & Y. St. R. Co., 91 Me. 193, 31 Atl. 560. "What servitude then does the public acquire by the taking of land for a public way? It is the right of transit for travelers, on foot and in vehicles of all descriptions. It is the right of transmitting intelligence by letter, message, or other contrivance suited for communication, as by telegraph or telephone. It is the right to transmit water, gas and sewage for the use of the public. It is a public use for the convenience of the public, to be moulded and applied as public necessity or convenience may demand and as the methods of life and communication may from time to time require. Society changes and new conditions attach them

selves. The change evolves new ways of doing things, new methods of communication, new inventions for travel." Cater v. Northwestern Tel. Exch. Co., 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310. Opinion approved by three out of five judges-two dissenting. Tuttle v. Brush Elec. Ill. Co., 50 N. Y. Super. Ct. (10 J. & S.) 464.

1002 See §§ 826 et seq., ante

1003 State v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798. See, also, cases cited note 1145 § 912, post.

1004 New Orleans Waterworks Co. v. Rivers, 115 U. S. 674; City of Brooklyn v. Fulton Municipal Gas Co., 7 Abb. N. C. (N. Y.) 19; Attorney General v. Sheffield Gas Consumers Co., 22 Law J. Ch. 811. See §§ 886, ante, and 912, post.

result. The control of public highways in fact is almost universally vested in local authorities.1005 The entire subject of regulation and control is usually a matter of minute statutory provisions and these must be considered in determining the extent of rights granted or the character of regulatory provisions adopted by municipal authorities in respect to water, gas, or electric companies.

Abutter's rights. The control of a highway by public authorities whether state or some other subordinate agency is not absɔlute but is limited in another respect in addition to those suggested in the preceding section, namely, the consideration of the rights of abutting owners. These, as already noted, are entitled to certain private easements of light, air and access to their property 1006 which are not dependent upon their title in the adjacent highway,1007 and also to additional compensation for the use of that highway by any of the various agencies when, by the holdings of a particular state, that use or occupation is regarded as an

1005 Sinton v. Ashbury, 41 Cal. 525; Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 95 Ky. 50; State v. Murphy, 130 Mo. 10, 31 L. R. A. 798; Eureka City v. Wilson, 15 Utah, 53, 48 Pac. 41.

1006 Saginaw Gaslight Co. v. City of Saginaw, 28 Fed. 529; First Nat. Bank v. Tyson, 133 Ala. 459, 32 So. 144, 59 L. R. A. 399; Smith v. Southern Pac. R. Co., 146 Cal. 164, 79 Pac. 868; Selden v. City of Jacksonville, 28 Fla. 558, 10 So. 457, 14 L. R. A. 370; O'Brien v. Central Iron & Steel Co., 158 Ind. 218, 63 N. E. 302, 57 L. R. A. 508; Long v. Wilson, 119 Iowa, 267, 93 N. W. 282; City of Newport v. Newport Light Co., 11 Ky. L. R. 840, 12 S. W. 1040; Townsend v. Epstein, 93 Md. 537, 49 Atl. 629, 52 L. R. A. 109; Nichols v. Ann Arbor & Y. St. R. Co., 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371; Gaus & Sons Mfg. Co. v. St. Louis, K. & N. W. R. Co., 113 Mo. 308, 20 S. W. 658, 18 L. R. A. 339;

Sherlock v. Kansas City Belt R. Co., 142 Mo. 172, 43 S. W. 629; De Geofroy v. Merchants' Bridge Terminal R. Co., 179 Mo. 698, 79 S. W. 386; Jaynes v. Omaha St. R. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751; Paige v. Schenectady R. Co., 178 N. Y. 102, 70 N. E. 213; Brumit v. Virginia & S. W. R. Co., 106 Tenn. 124, 60 S. W. 505; Parkersburg Gas Co. v. Parkersburg, 30 W. Va. 435, 4 S. E. 650; Linden Land Co. v. Milwaukee Elec. R. & L. Co., 107 Wis. 493, 83 N. W. 851; Wright v. Austin, 101 Am. St. Rep. 102, and monographic note. See §§ 817 et seq., and 847, ante.

additional burden or servitude upon their property.' 1008 The character of various uses of public highways as additional servitudes or otherwise, therefore, vary in different jurisdictions.1000 A servitude has been defined as a burden affecting property and rights and may arise through the use of a highway in a manner that was not anticipated or assumed at the time of its dedication as a public way, which is inconsistent with and subversive of its use as a highway and which necessarily varies with its character as an urban or a suburban way.1010 The abutting owner may, therefore, be entitled to consideration either in respect to an impairment or destruction of his private rights or through the imposition of the additional burden and these rights must be regarded and dealt with before the public authorities or private agencies acting under lawful authority can legally occupy or use the streets for the purpose of furnishing any of the commodities or services that are now being considered.

§ 888. Use of highways for above purposes.

Public highways may be used for the laying of gas and water pipes and the stringing of wires by electric companies for supplying light and power or by either the public corporation itself or a private person natural or artificial.1011 The power of a public corporation to do any one or all of these things naturally involves a consideration of the legal right in its capacity as a public corporation.1012 The right to supply on the part of the public corporation either water, light or miscellaneous service, involves a consideration of essentially identical principles, but no discrimination will be made in the cases cited as to the particular question in dispute. The subject of the construction of drains and sewers 1013

1008 Ryan v. Preston, 59 App. Div. 97, 69 N. Y. Supp. 100. Bicycle path not an additional servitude. See §§ 826 et seq., ante.

1009 See §§ 826 et seq., ante.

1010 Montgomery v. Santa Ana St. R. Co., 104 Cal. 186, 25 L. R. A. 654; Schopp v. City of St. Louis, 117 Mo. 131, 22 S. W. 898, 20 L. R. A. 783; State v. Laverack, 34 N. J. Law, 201. Use of street for market

purposes an additional burden. Brand v. Multnomah Co., 38 Or. 79, 60 Pac. 390, 62 Pac. 209, 50 L. R. A. 389. See, also, the general discussion as found in §§ 806 et seq., ante, where the question is fully considered and many cases cited.

1011 See §§ 826 et seq., ante, and 896 et seq., post.

1012 See §§ 455 et seq., ante.
1013 See §§ 437 et seq., ante.

and the expenditure of public moneys in connection with the supply of water 1014 have been fully considered in preceding sections and the authorities cited presently will relate more to the question of a supply of light. In connection with the legal power of a public corporation to furnish water, light or other service it has already been said 1015 that to govern and regulate efficiently and rightly requires complete disinterestedness, a condition which cannot exist where hope of gain or fear of loss are attendant essentials of certain acts or transactions, that it is the proper function of a public corporation to regulate and govern only and that it is neither desirable nor legal that it engage in undertakings which properly are not governmental and should be left, therefore, to private enterprise. Under an assumed exercise of the police power, municipal corporations have been authorized to supply water not only for its own uses but for those of private consumers, 1016 It scarcely seems possible to stretch the police power to the extent of authorizing a municipal corporation to supply private consumers with light or other service but this has been done in 1017 Their legal right to do so is questionable and not

some cases.

1014 See §§ 455 et seq., ante. Ruckert v. Grand Avenue R. Co., 163 Mo. 260, 63 S. W. 814. The condition may relate to the ascertaining and payment of damages for the construction of the road to real and personal property located on the line.

1015 See §§ 455 et seq., ante.

1016 City of Charlotte v. Shepard, 120 N. C. 411, 27 S. E. 109; Smith V. City of Nashville, 88 Tenn. 464, 12 S. W. 924, 7 L. R. A. 469. "Nothing should be of greater concern to a municipal corporation than the preservation of the good health of the inhabitants; nothing can be more conducive to that end than a regular and sufficient supply of wholesome water, which common observation teaches all men can be furnished, in a populous city, only through the instrumentality of well equipped water

works.

Hence, for a city to meet such a demand is to perform a public act and confer a public blessing. It is not a strictly governmental or municipal function, which every municipality is under legal obligation to assume and perform, but it is very close akin to it, and should always be recognized as within the scope of its authority, unless excluded by some positive law." Ellinwood v. City of Reedsburg, 91 Wis. 131. See § 455. Elec. Co.

1017 Thomson-Houston v. City of Newton, 42 Fed. 723; Rushville Gas Co. v. City of Rushville, 121 Ind. 206, 23 N. E. 72, 6 L. R. A. 315; City of Crawfordsville v. Braden, 130 Ind. 149, 28 N. E. 849, 14 L. R. A. 268. "The corporation (the state) possessing, as it does, the power to generate and distribute throughout its limits, electricity for the lighting of its

desirable from any standpoint. If a municipal corporation is permitted to engage in the business of supplying water or light, it should be limited, from a legal standpoint, clearly to a supply of its own necessities. 1018 The question of the legal right to supply the needs of a public corporation to engage in the business generally furnishing to private consumers a certain commodity, are radically distinct. In either case, the doctrine is well established that a municipal corporation in supplying itself and its inhabitants with water or light or contracting for these commodities is not exercising its governmental or legislative but its business or proprietary powers. 1019