not, must be determined by the use which the new method makes of the street, and not by the motive power which it employs in such use. The use is the test and not the motive power. And this principle exhibits, in a very clear light, the reason why it has been held that the placing of telegraph and telephone poles in the street imposes an additional servitude on the land. They are not placed in the street to aid the public in exercising their right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence. Although our public highways have always been used for carrying the mails, and for the promotion of other like means of communication, yet the use of them for a like purpose, by means of the telegraph and telephone, differs so essentially in evey material respect from their general and ordinary uses that the general current of judicial authority has declared that it was not within the public easement. Massachusetts has, however, by a divided court held otherwise. Pierce v. Drew, 136 Mass. 75.

Wright v.

Carter distin

The authority on which the complainant principally relies to maintain his right to an injunction is the judgment of the court of errors and appeals in Wright v. Carter. That case arose out of the following facts: The legislature authorized a turnpike company to con- guished. struct its turnpike on a public highway, but directed that the highway should be vacated before the construction of the turnpike was commenced. The object of this direction was not to discharge the land from the public easement, but to relieve the public from the duty of keeping the highway in a proper state of repair, and to impose that duty on the turnpike company. The highway was vacated, and the turnpike constructed. After the turnpike was completed, the company built a house for its gatekeeper within the limits of the highway, and on land in which the plaintiff held the naked fee. The plaintiff then brought ejectment. His action was based on the notion that the vacation of the highway discharged his land from the public easement, and that after the easement had once been discharged, it was not within the power of the legislature to reimpose it without making provision that compensation should be made. He also insisted that even if the public easement still endured, a new servitude had been imposed on his land by the erection of the house. The supreme court held both his positions to be unsound, and gave judgment for the defendant. 27 N. J. Law. 76. This judgment was carried to the court of errors and appeals and there reversed. No opinion appears to have been written, but the ground of the reversal is given by Chief Justice BEASLEY in State v. Laverack, 34 N. J. Law,

201.

On page 208 he says: "I have always understood that the view of the supreme court, touching the legislative right to convert the public highway into a turnpike, was concurred in by the higher court, and that the point of dissent was with regard to the privilege which had been sanctioned of putting the toll house on the property of the land owner." The chief justice also expresses it as his judgment that the erection of the house "was an invasion of the property of the land owner, because, to this extent, it put an additional servitude upon his property. While the land was a public highway, such a building could not have been erected. Consequently, when such land was converted into a turnpike, to authorize such an erection was to give to the public a new use in such land." Wright v. Carter and the case under consideration differ, it will be noticed, in every essential feature, except that they both relate to a public way. The house could, under no pos sible condition of circumstances, be used as an instrument to aid the public in exercising their right of free passage. It was not erected for any such purpose, but, on the contrary, with the obvious design to withdraw permanently and entirely from public use, as a means of passage, that part of the way which it covered. The poles and wires have been erected for an entirely different purpose, in fact for a purpose which is the exact opposite of that just stated. They are designed to facilitate the use of the streets as means of public passage, and thus increase their utility and convenience to the public. But I do not be lieve it is possible to imagine any condition of facts which would make it lawful to erect a building to be used as a dwelling in a public way. Such use of the land would undeniably be entirely foreign to the purposes for which it was acquired. There can however be no doubt, I think, that erections may be lawfully made in the streets of a city for the purpose of lighting them. They must be lighted at night to make their use safe and convenient, and to prevent lawlessness and crime. By the charter of Newark, power is given to its governing body, by express words, to light the streets, parks, and other public places. I have no doubt that in virtue of this power, the city has the right to erect poles in the street just where the poles in question are. The poles in question are in fact to be used for the purpose of lighting the street. One of the conditions on which the city gave its consent to the erection of the poles is that the defendant shall place on every other pole a group of 5 incandescent lights, of 16 candle power each, and furnish such light every night. This use of the poles and wires would, in my judgment, legalize their erection, but this is not their primary use. They

Necessary erections in streets.

were erected primarily and principally to facilitate the use of the street, and add to its convenience as a public way, and it is upon this ground that I think it should be declared that their presence in the street invades no right of the complain

ant.

The averment that the use of electricity by the defendant, as its propelling power, will render the street so extremely dangerous as practically to destroy it as a public way for any other use than that which the defendant may make of it, is not supported by the proofs. On the contrary, I think it is very clearly shown that an electric current of the volume the defendant will use, may be used with entire safety to everybody. The complainant's application must be denied with costs..

Construction of Electric Railways in Streets.-See Cumberland Telephone & Telegraph Co. v. United Electric R. Co., (C. C.), 43 Am. & Eng. R. Cas. 194; Taggart v. Newport St. R. Co., 43 Id. 208.

Same-Right of Abutting Owner to Injunction.-In Potter v. Saginaw Union St. R. Co., (Mich., Nov. 21, 1890), 47 N. W. Rep. 217, it appeared that plaintiff owned a vacant piece of ground lying along a street and extending across the square so as to front upon the cross streets. It was chiefly valuable for residence purposes, and he intended to build a residence thereon. Without objection from him, defendant company constructed and operated an electric railway, with an overhead wire, along one of the cross streets, and was about to put in operation a similar road upon the side street, upon a track long used for horse cars, fastening its crosswires to electric light poles already erected, so that no new poles or tracks were placed in front of the premises. Defendant had expended about $70,000 in constructing its system of electric railways in the city. There was evidence that there would be some danger to men and animals from the electric current, and from the more rapid running of the cars, and that the current would interfere with telephone wires in the same street. Held, that no present injury was shown, the apprehended injury was too remote, and, under all the circumstances, plaintiff was not entitled to an injunction against the operation of the road. The court said. "It is not every case of injury to real estate of a permanent character that equity will enjoin, and the court will look to all the facts and circumstances and grant or withhold relief as the justice or equity of the case may require. Hall v. Rood, 40 Mich. 46; Buchanan & Grand River & G. Log Running Co., 48 Mich. 364; City of Big Rapids v. Comstock, 65 Mich. 78; Blake v. Cornwell, 65 Mich. 467; Miller v. Cornwell, 71 Mich. 270. In this case the granting of an injunction would cause defendant a great many times more loss than complainant will suffer, if all his apprehensions prove true in the use of electricity to propel cars. Besides, if he has the rights claimed by him, he has a remedy at law for their violation, and he should, so far as the facts are now developed, be left to that remedy. For these reasons we do not consider that it is necessary to discuss or decide the points raised and elaborately argued by the counsel for the complainant in this case. He has not shown an infringement of an absolute right which calls for the interposition of a court of equity in his behalf. The decree of the court below must be affirmed, with the costs of both courts."

In Barber v. Saginaw Union St. R. Co., (Mich., Nov. 21, 1890), 47 ·N. W. Rep. 219, which was a suit to enjoin the construction and operation of an

electric street railroad, it appeared that complainant owned premises on the corner of two streets; that, at the corner diagonally opposite said premises, the railroad turned from one street to the other, but that, assuming complainant's premises to extend to the middle of the streets, said railroad nowhere came within 10 feet thereof. The trolley wire curved with the track, and was over the center of it. When the suit commenced, a sustaining wire extended from the trolley wire at the curve, and was attached to a pole standing between the sidewalk and the paved street in front of complainant's lot. This pole was stayed with a wire running to a guypost set in the ground in front of said lot. Thereafter defendant removed the wires and poles. Held, that a decree perpetually enjoining defendant from erecting within the street limits, on and in front of complainant's premises, any poles, posts, or wires, for operating its cars by electricity, without complainant's consent, gave complainant all the relief she was entitled to.

Right of Abutting Owner to Compensation for Construction of Horse Rail way. In Campbell v. Metropolitan St. R. Co., 82 Ga. 320, it was held, that under the provision of the Georgia Constitution, that private property shall not be taken or damaged for public use without just compensation, the owner of property abutting upon a street along which a street railway has been laid, and which is specially damaged by the construction or operation of such railway has a right to recover, although his property has not been taken. And the fact that the track is laid too near the plaintiff's premises is not a ground of recovery of damages. SIMMONS, J., said: "The construction and operation of a horse railway in the public streets of a city, by authority of the legislature and the consent of the city government, whether it be or not a new burden imposed upon the streets, does not entitle a private individual to compensation therefor unless the construction or operation of such railway works special damage to his property. If special damage is caused to property along the line of such railway by the construction or operation thereof, in our opinion the owner of the property is entitled to recover the amount of the damages which his property has actually sustained. Applying this rule to the case at bar, we find that the declaration asserts, in substance, that the plaintiff, by reason of the construction and operation of this railroad, was virtually deprived of ingress and egress to and from his property, and that his property, for the reason aforesaid, was damaged to the extent of $2,000. If these allegations are true, (and the demurrer admits them to be true for the purposes of this case), we do not see why the plaintiff would not be entitled to recover. The supreme court of Ohio, in the case of Cincinnatı & S. G. Ave. St. R. Co. 7. Cumminsville, 14 Ohio St. 523, in discussing this subject uses the following language: "There exists in the owners of adjoining lots a private right to free access to their lands and buildings from the street, as the same was and would have continued to be according to the mode of its original use and appropriation by the public, and there can be no change of such mode and adaptation of the street to new vehicles and methods of carriage and transportation which shall materially impair or destroy such right, unless by the consent of the owners, or upon the payment of due compensation to them." The supreme court of Wisconsin, in the case of Hobart v. Milwaukee City R. Co., 27 Wis. 200, after copying the above extract, approves it as follows: It is a doctrine which imposes no unreasonable restriction upon the rights of the public in the use of its streets and highways, and which at the same time affords that protection to private or individual rights which the spirit and principles of our constitution and form of government require. It is possible, as has been suggested, that it may sometimes prove embarrassing in practice to determine when and to what extent the private rights of adjoining owners have been infringed,

but such embarrassments are inseparable from the consideration and determination of all similar questions. The difficulties in the way of ascertaining and determining them by no means disprove their existence or show that they ought not to be recognized and enforced.' We quote these extracts with approval, and think they are even more applicable in this state than in those states, because the new rule as to damage to private property is not expressly embraced in the constitutions of those states."

VOSE

V.

NEWPORT STREET R. Co.

(Rhode Island Supreme Court, July 26, 1890.)

Railway in Street-Damages Resulting From Laying of Rails-Construction of Charter.-The charter of a street railway company provided that "whenever any estate abutting upon a street or highway, upon or over which the rails of said corporation shall be laid, shall be injured thereby, the said corporation shall be liable to pay the owner or owners thereof the damages thereby occasioned to said estate." Held, that an owner of abutting property is only entitled to recover damages for injuries resulting from the laying of the rails, as distinguished from those resulting from the use of them as laid.

ON demurrer.

Arnold Green and Patrick J. Galvin, for plaintiff.

Francis B. Peckham and Darius Baker, for defendant.

Case stated.

DURFEE, C. J.-This action is brought for the recovery of damages under the eighth section of the defendant company's charter, which reads as follows, to-wit: "Section 8. Whenever any estate abutting on a street or highway upon or over which the rails of said corporation shall be laid shall be injured thereby the said corporation shall be liable to pay the owner or owners thereof the damages thereby occasioned to said estate." The declaration sets forth that the plaintiff is, and has been long, the owner in fee of a lot of land, with a dwelling house and other buildings and improvements thereon, situated in the city of Newport, on "Bath Road," so called, on and over which the rails of the company have been laid, worth $25,000, when the rails were laid, i. e., in April, A. D. 1889, and constantly increasing in value, which estate" was a source of great income to the plaintiff as a summer home and fashionable boarding place for well to do summer residents, and for well to do temporary visitors, who have made, and who desire to make, their homes at said dwelling house; that the laying of the rails, and using the rails so laid, has injured said estate, which