1255 Where in some cases at regular recurring intervals thereafter. 125 the grant is not exclusive in its character no compensation can be made for the license.1256 This right is usually given to be exercised in the first instance at the end of a period which has been exclusive so far as privileges are concerned in favor of the grantee. After a failure to exercise the option it has been held that the license loses thereafter its exclusive character. Where the purchase price is not agreed upon, this question becomes then an important one. In a preceding section 1257 has been given many authorities on this point and some quotations made from the leading decisions. In addition it might be added that in estimating the value of a company's plant, a contract with the city, if one exist, should be taken into consideration.1258 An option to purchase, so it has been held, may be assigned by the city.1259 § 933. Exclusive contracts for supply of commodity. A public corporation may secure a supply of water or light through a contract with private persons exclusive or otherwise in its character. These organizations are usually given the power 517, 58 Pac. 773, 47 L. R. A. 214; Wheeling Gas Co. v. City of Wheeling, 8 W. Va. 320. Cooley, Const. Lim. (7th Ed.) p. 398. "The grant of an exclusive privilege will not prevent the legislature from exercising the power of eminent domain in respect thereto." See § 457, ante, with authorities cited discussing the question of the purchase of a private plant on a fair and equitable basis. 1235 Cherryvale Water Co. v. City of Cherryvale, 65 Kan. 219, 69 Pac. 176; Covington Gas Light Co. v. City of Covington, 22 Ky. L. R. 796, 58 S. W. 805. The failure to exercise the option at one time will not deprive a city of its right to exercise it at the next period. City of St. Louis v. St. Louis Gas Light Co., 70 Mo. 69. 1256 In re Long Island Water Sup ply Co., 73 Hun, 499, 26 N. Y. Supp. 198. 1257 Montgomery Gas Light Co. v. Montgomery & E. R. Co., 86 Ala. 372, 5 So. 735; Braintree Water Supply Co. v. Inhabitants of Braintree, 146 Mass. 482, 16 N. E. 420; Turner v. Revere Water Co., 171 Mass. 329, 40 L. R. A. 657; Griffin v. Goldsboro Water Co., 122 N. C. 206, 41 L. R. A. 240. See, also, San Diego Water Co. v. City of San Diego, 118 Cal. 556, 50 Pac. 633, 38 L. R. A. 460. See §§ 457 et seq. 1258 Covington Gas Light Co. v. City of Covington, 22 Ky. L. R. 796, 58 S. W. 805; Town of Bristol v. Bristol & W. Water-works Co., 23 R. I. 274, 49 Atl. 974. 1259 Covington Gas Light Co. v. City of Covington, 22 Ky. L. R. 796, 58 S. W. 805. to determine their course of action in this respect; they are not limited to the construction of a municipal plant to supply the commodities desired.1260 The principles governing these contracts have been discussed at length in other sections of this work.126: It is sufficient to say here that the authority for their execution must clearly appear 1202 and that public authorities are further limited by restrictions relative to the incurring of indebtedor the manner of raising or expending public moneys.1 ness 1263 1260 City of Detroit v. Circuit Judge of Wayne County, 79 Mich. 384, 44 N. W. 622; Wade v. Oakmont Borough, 165 Pa. 479, 30 Atl. 959; Mauldin v. City Council of Greenville, 33 S. C. 1, 11 S. E. 434, 8 L. R. A. 291. See, also, authorities cited in §§ 455, 896 & 904 et seq., ante. 1261 See §§ 455 et seq., ante. 1262 Winterport Water Co. v. Inhabitants of Winterport, 94 Me. 215, 47 Atl. 142, 1045; Lewick v. Glazier, 116 Mich. 493, 74 N. W. 717. But a water contract is valid to the extent of powers granted in the village charter. St. Louis Gas Light Co. v. St. Louis G., F. & P. Co., 16 Mo. App. 52; People v. Sisson, 75 App. Div. 138, 77 N. Y. Supp. 376. 1263 City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415. A contract for lighting the streets which is fully carried out would be invalid because contrary to a charter provision in respect to the incurring of indebtedness by the city, is valid so far as executing on the part of the gas company. Searle v. Abraham, 73 Iowa, 507, 35 N. W. 612; East Jordan Lumber Co. v. Village of East Jordan, 100 Mich. 201, 58 N. W. 1012. A village may make a valid contract for a supply of water without a vote of the electors as required by 1264 statute in respect to the borrowing or expending of moneys for the construction of waterworks. Kiichli v. Minnesota Brush Elec. Co., 58 Minn. 418, 59 N. W. 1088; Humphreys v. City of Bayonne, 55 N. J. Law, 241, 26 Atl. 81. But see New Orleans Gas Light Co. v. City of New Orleans, 42 La. Ann. 188, 7 So. 559; Merrill R. & Lighting Co. v. City of Merrill, 80 Wis. 358, 49 N. W. 965. 1264 Higgins v. City of San Diego, 118 Cal. 524; Leadville Ill. Gas Co. v. City of Leadville, 9 Colo. App. 400; Grand Junction Water Co. v. City of Grand Junction, 14 Colo. App. 424, 60 Pac. 196; McGuire v. Rapid City, 6 Dak. 346, 5 L. R. A. 752; Maine Water Co. v. City of Waterville, 93 Me. 586, 45 Atl. 830, 49 L. R. A. 294; Winterport Water Co. v. Inhabitants of Winterport, 94 Me. 215, 47 Atl. 142, 1045; Lamar Water & Elec. Light Co. v. City of Lamar (Mo.) 26 S. W. 1025; City of North Platte v. North Platte Waterworks Co., 56 Neb. 403, 76 N. W. 906, Id., 50 Neb. 853, 70 N. W. 393; Suburban Elec. Co. V. Elizabeth City, 59 N. J. Law, 134; Shuttuck v. Smith, 6 N. D. 56; City of Cincinnati v. Holmes, 56 Ohio St. 104; McNeal v. City of Waco, 89 Tex. 83; Stedman v. City of Berlin, 97 Wis. 505, 73 N. W. 57. But see Creston Water-works Co. v. City of The rule of strict construction also applies to them in respect to the performance of conditions.1265 The point has been raised against the validity of a contract for the supply of water or light in that there is effected an increase of indebtedness beyond a constitutional or statutory limit by reason of the obligation of the contract to pay certain specified sums. This question has already received sufficient consideration in previous sections. As a rule it is held that the making of a contract of this character and extending through a term of years with provisions for future payments, the obligation to make them is not considered a debt within the meaning of the phrase as ordinarily used. The only liability which arises is a present one for the payment of that part of a contract obligation already acquired and it being in all cases a contingent one based upon an actual rendition of the services performed.1266 Execution of contract. The subject of municipal contracts has been previously considered,1267 but the principles might be emphasized here in respect to the limited power or capacity of publie corporations to contract 1268 and the urgent necessity for a Creston, 101 Iowa, 687, 70 N. W. 739; State v. City of Crete, 32 Neb. 568, 49 N. W. 272. 1265 City of Austin v. Bartholomew (C. C. A.) 107 Fed. 349; City of Winfield v. Winfield Gas Co., 37 Kan. 24, 14 Pac. 499; Belfast Water Co. v. City of Belfast, 92 Me. 52, 42 Atl. 235, 47 L. R. A. 82; Village of Bolivar v. Bolivar Water Co., 62 App. Div. 484, 70 N. Y. Supp. 750; Ellensburgh Water Supply Co. v. City of Ellensburgh, 13 Wash. 554, 43 Pac. 531; Monroe Water-works Co. v. City of Monroe, 110 Wis. 11, $5 N. W. 685. But see City of Greenville V. Greenville Waterworks Co., 125 Ala. 625, 27 So. 764; City of New Orleans v. Firemen's Charitable Ass'n, 43 La. Ann. 447, 9 So. 486. 1266 Keihl v. City of South Bend, 76 Fed. 921, 36 L. R. A. 228; City Water Supply Co. v. City of Ottum wa, 120 Fed. 309; State v. McCauley, 15 Cal. 429; Hay v. City of Springfield, 64 Ill. App. 671; City of East St. Louis v. East St. Louis Gas Light & Coke Co., 98 Ill. 415; Culbertson v. City of Fulton, 127 Ill. 30; Crowder v. Town of Sullivan, 128 Ind. 486, 13 L. R. A. 647; Town of Gosport v. Pritchard, 156 Ind. 400; French v. City of Burlington, 42 Iowa, 614; Lamar Water & Elec. Light Co. v. City of Lamar, 140 Mo. 145; Brown v. City of Corry, 175 Pa. 528; Winston v. City of Spokane, 12 Wash. 524; Spilman v. City of Parkersburg, 35 W. Va. 605. But see Prince v. City of Quincy, 105 Ill. 138; Id., 128 Ill. 443. See, also, City of Valparaiso v. Gardner, 97 Ind. 1. See § 149, p. 322 and § 460, p. 1167. 1267 See §§ 246 et seq., ante. 1268 East St. Louis Gas Light & Coke Co. v. City of East St. Louis, strict compliance with all prescribed formalities in respect to the manner, form,1 1270 or time of their execution. 1269 § 934. Additional servitude; subject further considered. In the previous discussion commencing, approximately, with section 795, various rights of abutting owners have been suggested from time to time and as one of the most important, that to demand and collect compensation for use or occupation of a public highway by some private or quasi public agency engaged in the business of supplying water, light, telephone, telegraph or transportation service. A reference is made in the notes dealing with the question. A steam or commercial road is universally regarded as an additional burden or servitude whether the highway is an urban or interurban one.1271 A street railway proper is almost as universally regarded as not an additional burden upon a street proper though there are some dissenting cases,' 1272 and 47 Ill. App. 411; Nicholasville Water Co. v. Board of Councilmen, 18 Ky. L. R. 592, 36 S. W. 549; Smith v. Dedham, 144 Mass. 177, 10 N. E. 782; State v. McCardy, 62 Minn. 509, 64 N. W. 1133; Grand Island Gas Co. v. West, 28 Neb. 852, 45 N. W. 242. Under a contract illegal because of the interest of a public official in it, a city can be compelled to pay the fair value of light actually furnished. Borough of Milford v. Milford Water Co., 124 Pa. 610, 17 Atl. 185, 3 L. R. A. 122; Seltzer v. Metropolitan Elec. Co., 199 Pa. 100, 48 Atl. 861. 1269 Lake Charles Ice, Light & Water-works Co. v. City of Lake Charles, 106 La. 65, 30 So. 289. Officers de facto are competent to make a binding contract. Blank v. Kearney, 28 Misc. 383, 59 N. Y. Supp. 645. 1270 City of Conyers v. Kirk, 78 Ga. 480, 3 S. E. 442. A contract for street lighting informal in its character may become obligatory by ratification through the use of the light furnished for a considerable time without any objection to its informality. American Lighting Co. v. McCuen, 92 Md. 703, 48 Atl. 352. See, also, Dallas Elec. Co. v. City of Dallas, 23 Tex. Civ. App. 323, 58 S. W. 153. A lighting contract not formally executed but carried out for a series of years can be enforced; the city is liable for the services furnished during that time. 1271 See § 841, ante. 1272 Chicago & C. Terminal R. Co. v. Whiting H. & E. C. St. R. Co., 139 Ind. 297, 38 N. E. 604; Mordhurst v. Ft. Wayne & S. W. Traction Co., 163 Ind. 268, 71 N. E. 642, where in the syllabus it is said: "An interurban street passenger railway with the necessary turnouts, switches, feed wires and poles in and along a public street though anthorized to transport light express matter, passengers, baggage and United States mails does not impose any additional servitude on a change to electricity or the use of that power imposes no addi the street entitling abutting prop- Appeal of Milbridge & C. Elec. R. Co., 96 Me. 110 51 Atl. 818; Attorney General v. Metropolitan R. Co., 125 Mass. 515; Grand Rapids, & G. R. Co. v. Heisel, 38 Mich. 62. "A street railway for local purposes, so far from constituting a new burden, is supposed to be permitted because it constitutes a relief to the street; it is in furtherance of the purpose for which the street is established, and relieves the pressure of local business and local travel instead of constituting an embarrassment. It is for this reason that the owners of lands over which a city street is laid are denied compensation if a street railway is subsequently authorized within it; if they were compensated for the taking of their land originally they are supposed to be compensated for all possible losses they may suffer from its being put to proper uses as an avenue of local trade and passage, and if without compensation they dedicated it to the public, they are supposed to have contemplated and assented to all such uses." Hester v. Durham Traction Co., 138 N. C. 288, 50 S. E. 711; Rafferty V. Central Traction Co., 147 Pa. 579, 23 Atl. 884; La Crosse City R. Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 51 L. R. A. 923. "In determining whether a street railroad is an additional burden upon the land already set aside for the public use as a highway, we are to look to the manner of its construction and use, and not to the motive power. The latter may be steam, horse, electric or compressed air power, and the road and its operation be consistent with the common public use for which the street was originally designed, and not violate private rights; and either may be so used, and the road may be so constructed and operated as to have the opposite effect. Electric railroads constructed in the usual way and operated by the use of the overhead trolley wire supported by cross-wires fastened to poles set at the curb lines of the street, or otherwise located so as not to materially interfere with the ordinary common use of the street, belong to the former class, as we shall see later; and that has become so firmly established by the courts that it cannot be considered open to serious question." But see Jaynes v. Omaha St. R. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. A. 751, where the court held that the poles and wires of an electric railway constituted an additional burden. It was said in the opinion: "The use made of these streets by the railway company is not one common with that of the public generally; its poles and wires remain and must remain and exclusively occupy particular portions of the street and continuously exclude the public from such portions. Whether a use made of a street is an additional burden upon the easement we do not think depends upon the motive power which moves the vehicle employed. It depends upon the question whether the vehicle and appliances used in and necessary to effectuate that purpose permanently and exclusively occupy |