case decided some years ago 1094 said in an opinion by Mr. Justice Davis in sustaining privileges extending over a long period of time, "the purposes to be attained are generally beyond the ability of individual enterprise, and can only be accomplished through the aid of associated wealth. This will be risked unless privileges are given and securities furnished in an act of incorporation. The wants of the public are often so imperative, that a duty is imposed on government to provide for them; but as experience has proved that a state should not directly attempt to do this, it is necessary to confer on others the faculty of doing what the sovereign power is unwilling to undertake. The legislature, therefore, says to public spirited citizens: If you will emba rk, with your time, money, and skill, in an enterprise which will accommodate the public necessities, we will grant to you, for a limited period, or in perpetuity, privileges that will justify the expenditure of your money, and the employment of your time and skill.' Such a grant is a contract, with mutual considerations, and justice and good policy alike require that the protection of the law should be assured to it."

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

In the granting of a license or right, the public corporation has the power to impose upon the grantee all reasonable conditions and these may include conditions in respect to the commencement

Tex. 548, 19 S. W. 127; Waco Water & Light Co. v. City of Waco (Tex. Civ. App.) 27 S. W. 675; City of Palestine v. Barnes, 50 Tex. 538. The rule applied to the grant of exclusive market privileges for a period of twenty-one years. Townsend Gas & Elec. Co. v. City of Port Townsend, 19 Wash. 407, 53 Pac. 551; Oconto City Water Supply Co. V. City of Oconto, 105 Wis. 76, 80 N. W. 1113.

1094 The

Binghampton Bridge Co., 70 U. S. (3 Wall.) 51. See, also, Fidelity Trust & Guaranty Co. v. Fowler Water Co., 113 Fed. 560.

Beach, Monopolies, § 118. "Where the length of time for which a franchise is granted is plainly unreasonable and inconsistent with the public welfare, the grant is not void, but voidable. It is voidable as an ultra vires act of the municipal authorities. A grant may be made for a term of years, and a privilege which is not a monopoly at the time at which it is granted does not become a monopoly by the lapse of any reasonable period. In municipal grants there is a necessity for a fixed and somewhat extended time. As the cost of sup

of work or the completion of a specified part within a designated time.1095

Place of exercise. A sidewalk is a part of a highway and the grant of the right to occupy and use streets would necessarily convey the privilege of using that portion of the street occupied by the sidewalk. 1096 The language of the grant may be definite in respect to the particular streets or public ways to be occupied and used by the grantee. Where this is true it will be unlawful for the one exercising the grant to occupy or use other streets or grounds not so designated without the express permission of the public authorities lawfully granted. 1097 Where the grant is general in its terms and gives to the grantee his privileges without expressly designating the streets or public places, then it is not necessary, according to the weight of authority, for a special permit to be granted each time a new street is occupied or used for the lawful purposes of the grant." 1098 In a New York case 1099 it was said: "It cannot reasonably be contended that the relator is obliged to apply for a new grant whenever a new street is opened or an old one extended, as would be the case if the consent applied only to the situation existing when made. When the right to use the streets has been once granted in general terms to a corporation engaged in supplying gas for public and private

plying a city with gas or water is large and involves an expensive plant, it would not be undertaken by a private corporation on any temporary or uncertain franchise."

1095 Chicago Municipal Gas Light & Fuel Co. v. Town of Lake, 130 Ill. 42, 22 N. E. 616; Inhabitants of West Springfield v. West Springfield Aqueduct Co., 167 Mass. 128, 44 N. E. 1063. The rule will not apply to additions made necessary by the growth of the town. v. New York & P. Traction Co., 56 N. J. Eq. 463, 40 Atl. 21; Commercial Elec. Light & Power Co. v. City of Tacoma, 17 Wash. 661, 50 Pac. 592. A city may, however, be estopped by acquiescence to claim its rights in this respect.

Grey

1096 Louisville Bagging Mfg. Co. v. Central Pass. R. Co., 95 Ky. 50; Knapp, Stout & Co. v. St. Louis Transfer R. Co., 126 Mo. 26, 28 S. W. 627; McDevitt v. Peoples' Nat. Gas Co., 160 Pa. 367, 28 Atl. 948.

1097 City of Kalamazoo v. Kalamazoo Heat, Light & Power Co., 124 Mich. 74, 82 N. W. 811; People v. Deehan, 11 App. Div. 175, 42 N. Y. Supp. 1071.

1098 Meyers v. Hudson County Elec. Co., 63 N. J. Law, 573, 44 Atl. 713, reversing 60 N. J. Law, 350, 37 Atl. 618.

1099 People v. Deehan, 153 N. Y. 528, 47 N. E. 787, rvg. 11 App. Div. 175, 42 N. Y. Supp. 1071.

use, such grant necessarily contemplates that new streets are to be opened and old ones extended from time to time, and so the privilege may be exercised in the new streets as well as in the old. Such a grant is generally in perpetuity or during the existence of the corporation, or at least for a long period of time, and should be given effect according to its nature, purpose and duration. There is no good reason for restricting its operation to existing highways unless that purpose appears from the language employed." The grant of a privilege or license can under no circumstances convey a right to construct or place pipe lines or water mains upon the surface of the highway for, as said in an Indiana case: 1100 It is a nuisance and unlawful to place and keep or leave continuously in a public highway anything which either impedes or endangers public travel. This rule applies to the whole width of the highway, and not merely to a worn portion of it commonly used for passage. Privileges which, if usurped by a great number of persons or corporations would change the road. from a public easement to a mere special benefit or convenience to such usurpers, are not lawful for any of them. The uses must be consistent with the continued use of the road and every part thereof as a passageway by all persons exercising ordinary care."

§ 906. New streets or extension of corporate limits.

The rule in respect to the occupation or use of new streets has been given in the previous section. The right to occupy them without permission is dependent upon the language of the original grant of the license or privilege.1101 Where the corporate limits of a municipality are lawfully extended, the right to occupy and use the highways of the additional territory is dependent again upon the language of the original grant if it is definite in its terms and conveys clearly the general right to carry on the business authorized within the limits of the grantor, this privilege is co-extensive territorially with the jurisdiction of the grantor.1102

1100 Indiana Natural & Ill. Gas Co. v. McMath, 26 Ind. App. 154, 57 N. E. 593, 59 N. E. 287; Lebanon Light, Heat & Power Co. v. Leap, 139 Ind. 443, 39 N. E. 57, 29 L. R. A.

342.

1101 People v. Deehan, 153 N. Y. 528, 47 N. E. 787.

1102 Pittsburg, Ft. W. & C. R. Co. v. City of Chicago, 159 III. 369, 42 N. E. 781. But see People V. Deehan, 11 App. Div. 175, 42 N. Y. Supp. 1071.

Neither can a change of boundaries deprive the grantee of such a license of his rights.1103 The obligations of the contract are created by the people of a particular locality, not by the government that may represent them at a particular time. The people and the property constitute the contracting party; the external form of government is not considered.1104

§ 907. Change of commodity furnished.

The contract between a public corporation and the one supplying water, light or power, determines the relative rights of the parties in respect to a change of or an increase in the number of commodities furnished. The rule of strict construction applies as stated in a preceding section and where, therefore, a grant of the right to use the public highways for the purpose of supplying either water, light or power is not general in its terms but describes in specific language the particular business which can be legally carried on by the grantee of the right, that grantee cannot lawfully engage in supplying another commodity resulting in the same benefit or put the articles which it is authorized to supply for a designated purpose to another purpose; 1105 neither can the grantee of such a license or contract increase the number of commodities supplied by him though in a general way the business of furnishing them is similar in character. The application. of these rules forbid a company authorized to supply electric light from furnishing an electric current for power though generated by the same plant and conveyed by the same wires or some of them. Neither can a company authorized to supply water or light alone engage in the business of furnishing both water and light. The rule also prevents a corporation organized for the purpose of manufacturing and selling artificial gas from

1103 Johnson v. Owensboro & N. R. Co., 18 Ky. L. R. 276, 36 S. W. 8; State v. City of New Orleans, 41 La. 91, 5 So. 262; People v. Deehan, 153 N. Y. 528, 47 N. E. 787.

1104 City of Grand Rapids V. Grand Rapids Hydraulic Co., 66 Mich. 606, 33 N. W. 749. Where a village was succeeded by a city organization, a privilege granted by

the village for supplying water is not destroyed or abridged. People v. Deehan, 153 N. Y. 528, 47 N. E. 787.

1105 State v. Murphy, 130 Mo. 10, 31 S. W. 594, 31 L. R. A. 798; Emerson v. Com., 108 Pa. 111; Warren Gaslight Co. v. Pennsylvania Gas Co., 161 Pa. 510.