street may be used in any way which shall best promote the interest and business of the city. What will so promote those interests and business is to be determined by the municipal authorities, to whom the control of the streets is committed. Sewers and drains may be constructed, and water and gas pipes laid in them. The only restriction upon the power of the municipal authorities is that they cannot appropriate them to a purpose incompatible with the ends for which they were established." The same doctrine is declared in Milhau v. Sharp, 15 Barb. 210. And Judge Dillon declares it to be his judgment that a municipality may lawfully use its streets for the construction of sewers, and that such use is clearly within the public easement. Dillon's Mun. Cor. § 544. The same view is expressed by Mr. Angell. Angell on Highways, § 216. And this court has twice declared that the building and operation of a horse-railroad in the streets of a city, with the consent of the governing power, is a legitimate use of the highway for the purposes of public travel, and not a taking of private property for public use, within the meaning of the Constitution, so as to entitle the owner of the fee to compensation. Hinchman v. Paterson Horse R. R. Co., 2 C. E. Gr. 75; Paterson and Passaic Horse R. R. Co. v. City of Paterson, 9 C. E. Gr. 158. Were it necessary for the city authorities to justify their action before the courts, their answer, I think, gives a highly satisfactory reason for the diversion of the waters of Mill Brook, and also shows they proceeded cautiously and prudently in locating the route of the sewer; but their action in these matters, in my judgment, cannot be reviewed here. The question I have to deal with is, Has the city of Newark power to construct this sewer in Clay Street without making further compensation to the complainant? I think it has. The injunction must therefore be denied, and the order to show cause discharged. PIERCE v. DREW. SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1883. BILL in equity against the selectmen of Brookline and the American Rapid Telegraph Company of Massachusetts, to restrain the selectmen from granting to the Telegraph Company a location for its posts and wires in Brookline. The defendants demurred to the bill for want of equity. At the hearing, before Endicott, J., a decree was entered sustaining the demurrer and dismissing the bill; and the plaintiffs appealed to the full court. The allegations of the bill appear in the opinion. A. D. Chandler, for the plaintiffs. F. Morison, for the defendants. DEVENS, J. The facts admitted by the demurrer may be thus stated: The plaintiff's own land on a certain street or public highway in Brookline; they also own a fee in the half of the street which is next to their abutting land. The defendants are the selectmen of Brookline, and, on the application of the American Rapid Telegraph Company, a corporation organized under the St. of 1874, c. 1651 (Pub. Sts. c. 106, § 14), for the transmission of intelligence by electricity, are about to grant to that company, under the Pub. Sts. c. 109, a location along said highway for their posts, wires, &c. The bill seeks to restrain the defendants, upon the ground that the last-named Statute is unconstitutional. The Pub. Sts. c. 109, may be briefly summarized so far as applicable to the inquiry before us. By § 1, "Every company incorporated for the transmission of intelligence by electricity" possesses the powers and is subject to the duties prescribed in the chapter. By § 2, the fines of telegraphic communication are to be so placed as not to incommode the public use of the highways or public ways. By § 3, the municipal authorities shall give the company a writing specifying where the posts, &c., may be located, and the location of posts, height of wires, &c., may be altered at any time by their direction. By § 4, the "owner of land near to or adjoining a highway" may recover damages if injured thereby. By § 12, any injury to persons or property by the posts, wires, &c., is to render the company responsible in damages. By § 15, no easement or prescriptive rights are to be acquired by the erection and maintenance of the posts, &c. By §§ 8-11, provisions are also made for the limit of the debts, the liability of the officers, and the duties of the company; and penalties are imposed for neglecting them. That it was the intent of the Statute to grant to those corporations, formed under the general incorporation laws, for the purpose of transmitting intelligence by electricity, the right to construct lines of telegraph upon and along highways and public roads upon the locations assigned them by the officers of the municipality wherein such ways are situate, cannot be doubted. The use of the words "every company permit no other interpretation. Nor are we able to conceive why, if this authority might be given to corporations specially chartered, it may not equally be given to those organized under the general law. If this use of property already appropriated to certain public uses is to be deemed of itself an exercise of the right of eminent domain, the determination of the Legislature that the purpose for which it now directs it to be taken is a public use, is not necessarily conclusive; but, if the use be public, it is conclusive that the necessity exists which requires it to be taken. Talbot v. Hudson, 16 Gray, 417. While in some cases there may be difficulty in deciding whether an appropriation of property is for a public or private use, such difficulty does not seem 1 This Statute authorizes any number of persons, not less than three, to form a corporation "for the purpose of carrying on any lawful business," excepting certain kinds of business, not material to be stated. REP. -- to exist in the present case. The transmission of intelligence by electricity is a business of public character, to be exercised under public control, in the same manner as transportation of goods or passengers by railroads. The St. of 1849, c. 93, of which, with additions, the Pub. Sts. c. 109, is a re-enactment, recognized its public nature; and in Young v. Yarmouth, 9 Gray, 386, which was an action for injuries sustained by a traveller on the highway by reason of the telegraph poles erected there under the location granted by the selectmen by authority of the St. of 1849, the town was held not liable, because the poles were lawfully within the limits of the highway, and thus not such an obstruction or defect as to render it responsible. See also Commonwealth v. Boston, 97 Mass. 555; Bay State Brick Co. v. Foster, 115 Mass. 431. The public nature of this business has been recognized by the legislation of Congress, the decisions of the United States courts, and of many of the States of the Union. So far as known to us, it has not been held otherwise anywhere. U. S. Sts. of July 1, 1862; March 3, 1863; July 2, 1864; July 24, 1866. Pensacola Telegraph v. Western Union Telegraph, 96 U. S. 1. No right is given these companies to use the highways at their own. pleasure, or to compel in all cases, as the plaintiff suggests, locations therein to be given them by the municipal authorities. The second section of the Statute is to be construed with the third section, and shows an intention that a legally constituted board shall determine not only where, but whether, there can be a location which shall not incommode the ordinary public ways, with full power to revise its own doings and to correct any errors which the practical working of the arrangements may reveal. Young v. Yarmouth, ubi supra. But as, even if the Legislature has the right to authorize the erection of telegraph poles along a highway, as a public use thereof, appropriate safeguards must be provided for any rights of property belonging to individual owners which may be taken or invaded, there remain these inquiries for our consideration: first, whether the Statute does provide any compensation to the owner of the fee for this new use of the highway; second, whether he is entitled to such compensation; third, whether the owner of property near to, or abutting upon, the highway, is entitled to any compensation therefor other than such as the Act provides. The fourth section provides for damages which may be sustained by owners of land near to or adjoining a highway or road along which lines are constructed by the company." It is limited to these, and cannot be extended to those who are the owners of the fee in the highway or road itself. Nor does the twelfth section, as the defendants contend, make any provision for them. This simply enacts that "when an injury is done to a person or to property by the posts, wires, or other apparatus of a telegraphic line, the company shall be responsible in damages to the party injured." But the concluding clanse of the section, by which it is provided that "the city or town shall not, by reason of anything contained in this chapter or done thereunder, be discharged from its liability, but all damages and costs recovered against a city or town on account of such injury shall be reimbursed by the company owning the posts, wires, or other apparatus," indicates clearly that the liability of the company provided for under this section is for injuries occasioned by defects or obstructions in the way which its structures may cause. This section was not in the St. of 1849, c. 93; its first clause was added to the legislation on this subject by the St. of 1851, c. 247, § 2, and the remaining clause was subsequently added by the St. of 1859, c. 260, $$ 1, 2, it may fairly be presumed in view of the decision in Young v. Yarmouth, ubi supra, made in 1857. As the chapter does not, in our opinion, provide for damages to the owner of the fee in the highway by reason of the erection of the telegraphic posts and apparatus, it is to be determined whether such use of the highway creates a separate and additional burden, requiring an independent assessment of damages, for which the owner of the land was not compensated when the highway was laid out, and thus whether the omission of the Act to provide for this compensation renders it unconstitutional. It is to be observed that, for more than thirty years, the right to appropriate highways to this publie use, without any compensation to the owners of the fee therein, has been asserted; that the Statutes in regard to it have more than once been expounded by this court, without any apparent doubt of their validity; and that, up to the present time, no suggestion has ever been made that the rights of such owners were in any way invaded. If the argument that these owners are entitled to compensation be correct, the estates of thousands have been wrongfully used while they were either ignorant of their rights or submissive to injustice; and in the mean time costly telegraphic structures have been erected, and the whole business of the State has accommodated itself to this system of the transmission of intelligence. After so long a practical construction by the Legislature and the courts, and after so widely extended an acquiescence by parties whose estates or interests therein are directly affected, it would require a clear case to justify us in setting aside such a Statute as unconstitutional, even if it be true, as it certainly is, that no usage for any course of years, nor any number of legislative or judicial decisions, will sanction a violation of the fundamental law, clearly expressed or necessarily understood. Packard v. Richardson, 17 Mass. 122, 144; Commonwealth v. Parker, 2 Pick. 549, 557; Holmes v. Hunt, 122 Mass. 505. No right to take the private property of the owner of the fee in the highway is conferred by this Act; all that is given is the right to use land, by permission of the municipal authorities, the whole beneficial use of which had been previously taken from the owner and appropriated to the public. It is a temporary privilege only which is conferred; no right is acquired as against the owner of the fee by its enjoyment, nor is any legal right acquired to the continued enjoyment of the privilege, or any presumption of a grant raised thereby. Pub. Sts. c. 109, § 15. The discontinuance of a highway would annul any permit granted under the Statute, and no incumbrance would remain upon the land. In Chase v. Sutton Manuf. Co., 4 Cush. 152, 167, it is said by Chief Justice Shaw, "that where, under the authority of the Legislature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full compensation for a perpetual easement in land has been paid to the owner therefor, and afterwards the land is appropriated to a public use of a like kind, as where a turnpike has by law been converted into a common highway, no new claim for compensation can be sustained by the owner of the land over which it passes." The case itself goes farther than the illustration used by the Chief Justice. It related to a claim made by an owner in fee of land which had been taken by a canal company by statutory authority, for the purpose of a navigable waterway, which company had been permitted by Statute to sell its property to a railway company; but, although the two modes of transportation were entirely different, the validity of the Act was sustained, and the claim of the landowner for further compensation disallowed. "It is well settled," says Mr. Justice Gray, in Boston v. Richardson, 13 Allen, 146, 160, "that when land, once duly appropriated to a public use which requires the occupation of its whole surface, is applied by authority of the Legislature to another similar public use, no new claim for compensation, unless expressly provided for, can be sustained by the owner of the fee." When land has been taken or granted for highways, it is so taken or granted for the passing and repassing of travellers thereon, whether on foot or horseback, or with carriages and teams for the transportation and conveyance of passengers and property, and for the transmission of intelligence between the points connected thereby. As every such grant has for its object the procurement of an easement for the public, the incidental powers granted must be so construed as most effectually to secure to the public the full enjoyment of such easement. Commonwealth v. Temple, 14 Gray, 69, 77. It has never been doubted that, by authority of the Legislature, highways might be used for gas or water pipes, intended for the convenience of the citizens, although the gas or water was conducted thereunder by companies formed for the purpose; or for sewers, whose object was not merely the incidental one of cleansing the streets, but also the drainage of private estates, the rights of which to enter therein were subject to public regulations. Commonwealth v. Lowell Gas Light Co., 12 Allen, 75; Attorney-General v. Metropolitan Railroad, 125 Mass. 515, 517; Boston v. Richardson, ubi supra. Nor can we perceive that these are to be treated as incidental uses, as suggested by the plaintiff, because the pipes are conducted under the surface of the travelled way, rather than above it. The rights of the owner of the fee must be the same in either case, and the use of |