viding for the formation of gas-light companies. (Chap. 37, Laws of 1848.) By an Act passed in 1870 (Chap. 757, Laws of 1870), authority was given to it to acquire title to lands necessary for its purposes in the General Railroad Act. (Chap. 140, Laws of 1850.) The line fixed by the company for its main pipes passed along a country highway, in the town of Henrietta, and over lands owned by defendant. The company not being able to agree with him as to his compensation, commenced these proceedings, by petition, in the manner prescribed by said Railroad Act. Commissioners were appointed who made their report awarding defendant $350. Defendant moved for a confirmation of the report at Special Term, where the same was confirmed. The company appealed from the report and from the order confirming it.

Henry R. Selden, for the appellant.

John Norton Pomeroy, for the respondent.

MILLER, J. The appropriation of land for the use of a highway is for a specific purpose, and the public thereby acquire a mere right of passage, with the powers and privileges which are incident to such a right. The fee of the land still remains in the owner, and he does not become divested of the title because the public have a free and unrestrained right to the use of the same for the purposes of travelling, passing and repassing, on foot or with animals and vehicles, with the privilege of doing all necessary acts to keep the same in repair. The owner's right is absolute to maintain ejectment or trespass, to use and enjoy the soil, reap any profits arising therefrom, and to use the highway for his individual purposes in any way consistent with the easement or servitude which its appropriation for a road warrants. These principles are elementary, and have been the settled law of this State from its earliest organization. (3 Kent Com. 432, 433; Cortelyou v. Van Brundt, 2 J. R. 357, 363; Jackson v. Hathaway, 15 Id. 447, 452, 453; Gidney v. Earl, 12 Wend. 98; Pearsall v. Post, 20 Id. 111, 131.) Nor in the varying changes which time and the progress of events have demanded in the adaptation of the common law to the wants of society have these salutary rules been essentially or really altered. The introduction of railroads in this State presented the question whether a railroad corporation could use a public highway for the purpose of constructing and running its road, and it was held that it imposed an additional burden upon the soil of the highway besides what was included in the public easement; that the Legislature had not the power to make such imposition within the meaning of the constitutional provision, which forbids the taking of property of the owner of the fee without compensation; and that the company can derive no title by any Act of the Legislature, or of any municipal authority, without the consent of the owner of the fee, or without the appraisal and payment of damages in the mode prescribed by law. (Fletcher v. Auburn and S. R. R. Co., 25 Wend. 462; Trustees of Presbyterian Society v. Auburn and Roch. R. R. Co., 3 Hill, 567; Davis v. The Mayor, 14 N. Y. 506; Williams v. N. Y. Cent. R. R. Co., 16 Id. 97; Wager

v. Troy Union R. R. Co., 25 Id. 526.) These cases settled the law, beyond peradventure, as to the right of railroad corporations to appropriate public highways to their benefit without compensation.

At a later day an attempted distinction was sought to be made in favor of horse railroads in cities, and the question as to the right of these corporations to use the streets of cities for their roads and cars, was presented in Craig v. The Rochester City and Brighton Railroad Co., 39 N. Y. 404, and it was there decided, after full consideration by the Court of Appeals, that the running and establishing of such a road, in the public streets of a city, was an imposition of an additional burden on the land of the adjoining proprietor, for which compensation must be made. The authorities are all fully reviewed in the case last cited, and unless this case can be overthrown, it is by no means apparent, how the appellant can claim, that the right exists, to appropriate highways for the purposes claimed. Even if the principle here decided may be disregarded and set aside, the appellant cannot be aided, for the reason that the right now claimed goes far beyond the use of the surface of a highway, the injury to which must be merely nominal and exceedingly slight. The right contended for, is to dig in the soil, cut off drains, and disturb privileges, which had been exercised by the owner for a long period of time. The use of the highway thus sought to be maintained is different, more injurious, and liable to produce far greater damages to the owner of the fee, than mere passing or repassing, and the pecuniary loss occasioned by the exercise of such a power must necessarily be far more extensive, and unlimited in its charIt would be beyond an ordinary trespass on the land, or an appropriation of the surface of the soil. It would interfere materially with the freehold and the enjoyment of the fee, to an extent greatly exceeding anything which was ever contemplated or intended, when the land. was appropriated for the ordinary purposes of a highway. The rights to the fee, to the fruits of the soil and to carry water in pipes under the highway, which are laid down as expressly reserved (3 Kent, supra), would be taken away, diverted and appropriated for the purposes of a corporation, without compensation and contrary to the clear and manifest original design contemplated by the laying out of the highway, and the intention of the owner of the fee, when he parted with his interest. Can it be pretended that either the public or the owner intended to be deprived of the rights which the law conferred upon him, and to subject himself to a direct interference in their enjoyment? Surely no such conclusion is warranted by the fact, that a highway was laid out according to law.

acter.

We have been referred to the dicta of judges in several cases, holding that the streets of cities may be used for the laying down of ordinary gas and water pipes, and the construction of sewers, without the consent of the owner of the fee. There is no case where the precise point has been distinctly presented and passed upon, but the opinions of judges contain remarks which sustain this doctrine. The views thus

taken are not without some reason to support them, where, as in The People v. Kerr, 27 N. Y. 188, the fee of the land had been acquired by the city. In fact, it may be urged with some apparent reason that the appropriation of land for a street in a city carries with it the idea that it is to be used for all necessary purposes, as such street, which the interest of the public, and the comfort, enjoyment, or the health of the locality, may demand. Concede, then, that these improvements were proper for cities, it by no means follows that the appellant had a right to use the highway in question for the same purpose, and that, as a necessary result of the reasoning, the gas-pipes might be properly laid over the land of the respondent. And it may be remarked that most of the cases cited, if not all of them, state or assume that there is a distinction between the street of a city and a highway in the country. Every one of the improvements referred to may, in cities, be considered as a necessary incident to the public right to repair, improve, increase the value of property, and add to its beauty and the wealth of a large local population. Usually constructed without objection, they do not ordinarily interfere with other rights which have been lawfully acquired and enjoyed, and they confer many advantages which counterbalance any supposed detriment or injury. Whether these rights can be strictly maintained as to cities, it is not necessary to determine in this case. It is enough to say that the rule claimed has no application to a country highway, because the circumstances are entirely different. Nor does the rightful use of land appropriated for a street for the purposes before stated in any way disturb the position that a public highway in the country stands entirely upon a different footing. It is unnecessary to review the authorities referred to in the learned argument of the appellant's counsel. The question is entirely settled by the adjudication of this court, as we have seen, and must be regarded as stare decisis. No such additional burden as is claimed can be imposed upon land taken for a public highway, unless we overthrow established principles and cases which have long been regarded as authoritative. The respondent was clearly entitled to compensation, the proceedings were properly instituted, and an award of damages rightfully made.

There is no objection to an application by the respondent to confirm the report. The company had a right to do it, but the respondent was not prohibited from doing so.

No other question in the case demands comment, and the order of the General Term must be affirmed.

All concur.

Order affirmed.1

1 Sterling's Appeal, 111 Pa. 35 (1885), accord.

STOUDINGER v. NEWARK.

COURT OF CHANCERY OF NEW JERSEY. 1877.

[Reported 28 N. J. Eq. 187.]

On order to show cause why an injunction should not issue. Hearing on bill, answer, and affidavits.

Mr. Joseph Coult, for motion.

Mr. Henry Young, contra.

THE VICE-CHANCELLOR [VAN FLEET]. The government of the city of Newark, by an ordinance duly adopted on the 7th day of July, 1876, ordained that a sewer should be constructed from the westerly line of High Street to the Passaic River, and that the waters of Mill Brook, on First River, should be diverted from their present channel into the sewer and carried by it to the Passaic River. The sewer, for most of the distance between the termini named, is to be laid in Clay Street. The charter gives the municipal government full power to lay out, regulate, and repair streets, to construct sewers and drains in any part of the city, and, in the construction of any sewer or drain, to take and appropriate or divert any stream of water it may deem expedient and necessary. Compensation is, of course, to be made to the persons entitled to the water diverted, or whose lands may be taken for sewerage purposes. Clay Street was dedicated by the complainant many years ago to the public for the purposes of a highway, and has been accepted by the city, graded, flagged, and curbed. The complainant owns and resides on a lot extending along the southerly line of Clay Street, a distance of two hundred and twenty-seven feet. He seeks to have the construction of the sewer in Clay Street enjoined, because such use of the street is not within the rights or powers conferred upon the public by the dedication. He contends that the fee of the street is still in him; that by the dedication the public merely acquired a right of free passage, and as an incident of this right, to make such repairs as were necessary to render travel safe and convenient, and that any other use of it is unauthorized, and cannot be made lawfully without compensation to him. On the argument, the application was put distinctly and exclusively on the ground that the city authorities were seeking to appropriate the street to a use not within the purposes of the dedication, and, therefore, they should be restrained until they acquire, by grant or condemnation, the right they intend to exercise.

The location of sewers, their size and capacity, and the material of which they shall be constructed, are matters which, by the charter, are committed to the judgment of the municipal authorities, and so long as they keep within their power, and do not abuse it, their acts are not

VOL. II. 40

subject to judicial revision. When the Legislature grants to a municipal corporation the power to control and regulate the use of its streets, it invests it with a part of its sovereign power, and any regulation adopted by the corporation, in the proper exercise of its powers, is as much beyond the control of the courts as a valid enactment of the Legislature of the State. Milhau v. Sharp, 17 Barb. 435. It is only when it transcends its power that the courts are authorized to interfere. Weil v. Ricord, 9 C. E. Gr. 169.

To entitle the complainant to the aid he asks, the court must hold, as a sound proposition of law, that a city government, having authority to control the use of its streets and construct sewers, cannot lawfully use them, whether acquired by condemnation or dedication, for the construction of sewers. without first having them specially condemned for that purpose. Whether the public right is acquired by condemnation or dedication is quite immaterial. If land is dedicated to the public for the purposes of a street, and there is an acceptance, either by formal act or user, the public right is complete, and the land may be appropriated to any use to which a street, acquired in any other mode, can lawfully be put. The public have the same rights now in Clay Street they would have had, had the public easement been acquired by condemnation. The bill expressly declares Clay Street was dedicated to the public for the purposes of a street; the public right in it is just as extensive as it would have been if it had been acquired by grant. It is a public street for all purposes, and may be so used and appropriated.

The authorities upon this subject seem to stand with entire uniformity against the rule it would be necessary to adopt to give the complainant the aid he asks. Cone v. Hartford, 28 Conn. 362, the only case cited on the argument in support of the complainant's theory, I understand to declare distinctly that a power granted to a municipality to make and repair streets, confers authority to construct sewers in the streets, which may be exercised whenever the condition of the streets, or the protection of the public health, renders it expedient in the judgment of the local government. It is further held, that such use of the highway is clearly within the purposes for which they are established, and that the compensation made to the land-owner for his land includes damages for such use.

Equally decisive are the utterances of Judge Gray (now Chief Justice) of Massachusetts, and Judge Harris of the Supreme Court of New York. The first says, in Boston v. Richardson, 13 Allen, 146: "Whenever land is taken for public use as a highway, and due compensation made, the public have a right to make any use of the land, directly or incidentally, conducive to the enjoyment of the public easement, and such uses clearly include the making of culverts, drains, and sewers under the highway, for the cleansing of the streets and the ac commodation of the inhabitants on either side." And Judge Harris, in Chapman v. Albany and Schenectady R. R., 10 Barb. 360, says: "A