of this condition are appreciated best by an inspection of many residence streets in cities and towns and where, unfortunately, it as well as a retention of the power to arbitrarily compel the laying of wires underground is too often lacking.

The owner of property can effectually control the use of public highways by reserving in the dedication the right to dictate in respect to the laying of mains and pipes, the erection and stringing of poles and wires or the laying of wires underground and further regulate their operation and the rates which may be charged. The consent of the abutting owner by this method may be made absolutely necessary to the granting of all privileges or licenses or the use of public highways.

909. Exercise of the grant.

The power to impose conditions is one which impliedly belongs to all public corporations having the right to grant licenses of this character and the conditions may apply not only to the original construction of the plant but also to its maintenance, use, and operation thereafter.1121 It is not necessary, however, that the right be reserved to the grantor of a license that it be capable. of regulating the manner of the exercise of a grant. The state and its subordinate agencies retain under all conditions and circumstances the right to exercise the police power 1122 and also to maintain and preserve the public highways for the chief and par

injunction against the city extending over seven miles is too broad.

Tiedemann v. Staten Island M. R. Co., 18 App. Div. 368, 46 N. Y. Supp. 64; Sea Beach R. Co. v. Coney Island & G. Elec. R. Co., 22 App. Div. 477, 47 N. Y. Supp. 981; In re Buffalo Traction Co., 155 N. Y. 700; Mt. Auburn Cable R. Co. v. Neare, 54 Ohio St. 153, 42 N. E. 768; Pennsylvania R. Co. v. Greensburg J. & P. St. R. Co., 176 Pa. 559, 35 Atl. 122, 36 L. R. A. 839. A steam road whose lines are crossed by a street railway is not an abutting owner whose consent is necessary to the construction of the

street railway line. Gray v. Dallas Terminal R. & Union Depot Co., 13 Tex. Civ. App. 158, 36 S. W. 352; Western Union Tel. Co. v. Williams, 86 Va. 696, 8 L. R. A. 429. But see Kennelly v. City of Jersey City, 57 N. J. Law, 293, 30 Atl. 531, 26 L. R. A. 281; Ingersoll v. Nassau Elec. R. Co., 89 Hun, 213, 34 N. Y. Supp. 1044.

1121 State v. Sloan, 48 S. C. 21. 1122 Nebraska Tel. Co. v. York Gas & Elec. Light. Co., 27 Neb. 284; Consolidated Traction Co. v. Elizabeth City, 58 N. J. Law, 619, 34 Atl. 146, 32 L. R. A. 170. See, also, § 900, ante, and § 912, post.

amount purpose for which they were established.1123 The erection of poles by telegraph, telephone and electric lighting companies and the stringing of necessary wires are unquestionably permanent obstructions in a highway, to be done in that manner which will minimize their true character as obstructions. The question of compensation to an abutting owner as based upon an additional burden or servitude has already been considered.1124 Companies authorized to supply water and gas can be restricted in respect to the manner 1125 and the time 1126 in which their pipes and appurtenances can be laid either originally or for the purpose of making repairs.1127 A regulation requiring the securing

of a permit from the proper officer before this can be done is not only a lawful one but reasonable.1128

§ 910. Replacing improvements.

In the larger cities and towns on the main streets and many of the residence streets, costly and permanent improvements are made at the expense of the abutting owner. The implied right unquestionably exists on the part of the public authorities to reasonably restrict companies to whom the right has been given to use the highway for any of the purposes indicated, in the tearing up of these improvements.1129 A regulation requiring a permit is reasonable 1130 and the grantee of the right should be required to restore the highway to the condition in which it was at the time it was torn up at its own expense 1131 and in the same permanent and workmanlike manner.1132 So, corporations occupying the

1128 Missouri v. Murphy, 170 U. S. 78; Mutual Elec. Light Co. v. Ashworth, 118 Cal. 1. A city cannot discriminate in the granting of permits. United States Illuminating Co. v. Hess, 19 N. Y. State Rep. 883, 3 N. Y. Supp. 777; Ghee V. Northern Union Gas Co., 34 App. Div. 551, 56 N. Y. Supp. 450, reversed in some respects in 158 N. Y. 510, 53 N. E. 692.

1129 City of Indianapolis v. Consumers' Gas Trust Co., 140 Ind. 107, 27 L. R. A. 514; Northern Liberties Com'rs v. Northern Liberties Gas Co., 12 Pa. 318; Ft. Pitt Gas Co. v. Borough of Sewickley, 198 Pa. 201, 47 Atl. 957.

1130 Ghee v. Northern Union Gas Co., 34 App. Div. 551, 56 N. Y. Supp. 450, reversed in some instances in 158 N. Y. 510, 53 N. E. 692.

1131 Crebs v. City of Lebanon, 98 Fed. 549. A city has no power to enforce these conditions against a purchaser at foreclosure sale who removed the rails leaving ties in the streets. Indianapolis & C. R.

Co. v. City of Lawrenceburg, 34 Ind. 304; State v. Lake Koen Navigation, Reservoir & Irr. Co., 63 Kan. 394, 65 Pac. 681; City of Duluth v. Duluth St. R. Co., 60 Minn. 178, 62 N. W. 267; State v. Minnesota Transfer R. Co., 80 Minn. 108, 83 N. W. 32, 50 L. R. A. 656; Village of Mechanicville v. Stillwater & M. St. R. Co., 67 App. Div. 628, 74 N. Y. Supp. 1149; McHale v. Easton & B. Transit Co., 169 Pa. 416, 32 AtI. 461; City of Philadelphia v. Thirteenth & Fifteenth St. Pass. R. Co., 169 Pa. 269, 33 Atl. 126. But see State v. New Orleans Traction Co., 48 La. Ann. 567, 19 So. 565; Stillwater Water Co. v. City of Stillwater, 50 Minn. 498, 52 N. W. 893. Holding a nonliability under conditions considered. City of Dallas v. Dallas Consol. Traction Co. (Tex. Civ. App.) 33 S. W. 757. See §§ 857 et seq., ante.

1132 City of Kalamazoo v. Kalamazoo Heat, Light & Power Co.. 124 Mich. 74, 82 N. W. 811.

public highways may be controlled in their use of them in respect to sewers, pipes, mains or wires belonging to the public corporation 1133 or other private companies 1184 and they may be made liable for any injuries to them which occur through their own use of the highway.

§ 911. Destruction of or injury to trees.

In some states the rights of companies organized for the purpose of supplying light, telephone or telegraph service in respect to the destruction of or injury to shade or other trees in the public highways, are determined by the language of statutes. In Connecticut 1135 the construction of a line of poles and wires upon a highway where the same interferes with or necessitates the removal or trimming of trees is dependent upon the consent of the abutting owner. Aside from statutory provisions the right of these corporations to remove or trim trees without paying damages seems to be based upon the adoption of the rule in respect to whether or not such occupation of a highway constitutes an additional burden.1136 If the principle obtains in a particular state that a line of this character is an additional burden, then the company cannot destroy or trim trees even when reasonably necessary to the construction of the line without compensating the owner or becoming liable for the damages sustained by him.1137 Where the other rule holds, however, namely, that the construction of a line of telegraph, telephone or electric wires

1133 Hough v. Smith, 37 Misc. 363, 75 N. Y. Supp. 451; City of San Antonio v. San Antonio St. R. Co., 15 Tex. Civ. App. 1, 39 S. W. 136.

1134 Rockland Water Co. v. Tillson, 75 Me. 170; People v. Squire, 107 N. Y. 593, affirmed 145 U. S. 175.

1135 Hoyt v. Southern New England Tel. Co., 60 Conn. 385; Bradley v. Southern New England Tel. Co., 66 Conn. 559, 34 Atl. 499, 32 L. R. A. 280. Conn. Gen. St. §§ 3944, 3945, 3946.

1136 Brown v. Ashville Elec. Light Co. (N. C.) 51 S. E. 62; Tate v. City Abb. Corp. Vol. III — 10.

of Greensboro, 114 N. C. 392, 19 S.
E. 767, 24 L. R. A. 671. See, also,
Donahue v. Keystone Gas Co., 181
N. Y. 313, 73 N. E. 1108.

1137 McAntire v. Joplin Tel. Co., 75 Mo. App. 535; Clay v. Postal Tel. Cable Co., 70 Miss. 406; McCruden v. Rochester R. Co., 77 Hun, 609, 28 N. Y. Supp. 1135. Awarding damages under Code Civ. Proc. § 1667. Gorham v. Eastchester Elec. Co., 80 Hun (N. Y.) 290; Daily v. State, 51 Ohio St. 348, 24 L. R. A. 724; Rugg v. Commercial Union Tel. Co., 66 Vt. 208.

does not constitute an additional burden for which compensation may be recovered, these companies have the right, when they have been lawfully granted the authority to occupy highways, to remove or trim trees whenever this becomes reasonably necessary for the construction or in the proper maintenance of the line for the purpose for which it was constructed,1138 but they clearly have no right to destroy or injure trees on private property.'

§ 912. Regulation by public corporations, extent and character. All public corporations within whose jurisdiction may be constructed and operated under lawful authority any of the public utilities, so called, and included within the present discussion, possess the right to regulate in a proper manner under the police power of the state these facilities both in their construction and operation.1140 It is not necessary that this right be reserved in the grant of a license or privilege but it is regarded as an implied one,111 and because based upon an exercise of the police power