There are also two cases which have arisen in the city of Brooklyn, which it may be well briefly to notice; viz., Plant v. Long Island Railroad Company, 10 Barb. 26, and Hentz v. The Same, 13 Barb. 646. In neither of these cases did the question here presented arise. In the first, the defendants, under an authority from the common council of the city of Brooklyn, had constructed a tunnel under the street upon which the plaintiff's premises were situated. The opinion of the court was delivered by Justice Edwards, who, while he argued at some length in favor of the power of city corporations to deal with streets in a way not authorized in respect to highways in the country, nevertheless held that the question now under consideration did not arise. After insisting that it did not appear in the case but that the plaintiff might have received compensation, he says: "But again, suppose that no compensation has been made to the owners of the adjoining lands, and no consent has been obtained from them, how can the plaintiff take advantage of it in this suit? He does not claim damages for trespass upon land owned or possessed by him, nor for an injury done to the soil in front of his lot. He claims consequential damages for injury alleged to have been done to his business."

In the second, which was a Special Term case, Judge Strong, before whom it was heard, cautiously reserves his opinion upon the point before us. After showing that the plaintiff had established no title to the soil of the street, he says: "But if the plaintiff had a full title to the land in question when it was first taken, and if he would then have been entitled to any compensation from the defendants for appropriating it to a species of locomotion different from that for which it had been dedicated or acquired (concerning which it is not necessary that I should give an opinion, nor do I), there is still a serious obstacle in the way of obtaining an injunction."

The case of The Ohio and Lexington Railroad Company v. Applegate, 8 Dana, 289, having been decided by the highest court in Kentucky, is apparently relied upon; but it clearly belongs to the same class with those already considered. Chief Justice Robertson there discusses the general subject very elaborately and in a variety of aspects; but, upon careful analysis, it will be found that the only points involved in the case were, whether the railroad was a purpresture, or such an interference with the incorporeal rights or easements appurtenant to the plaintiff's lots, situated upon the street, as constituted it a private nuisance. Indeed, the latter may be considered the only point, as there clearly could be no purpresture when the road was constructed by the express authority of both the municipal and State governments. No such question as that presented in this case could have arisen, because the fee of the land over which the street was laid was regarded as being, not in the plaintiffs, but in the corporation of Louisville. This clearly appears from the language of the Chief Justice. In one portion of his opinion he says: "Although, therefore, an ordinary public way may be discontinued, or applied to some other public purpose than

that for which it was first established, without any legal liability for pecuniary compensation to the local public, or to any owner of adjoining lands, because neither such public nor proprietor had any right of property in the way, or any other legal interest in it than that which was common to all the people; and though also the mayor and council, holding the legal title to the streets of Louisville in trust, chiefly for public purposes, might regrade and improve those streets," &c.

This extract shows, not only that the plaintiffs had no title to the soil, but that they were seeking redress for being deprived of their easement in the street, and that this was the point under consideration by the court.

These cases and others of the same class may be considered as settling the question that a railroad in a populous town is not a nuisance per se, and that, when the railroad company has acquired the title to the land upon which its road is located, such company, being in the exercise of a lawful right, is not liable, unless guilty of some misconduct or negligence, for any consequential injuries which may result to others from the operation and use of its road; but they decide nothing whatever in regard to the question to be considered in this case; and it would not have been necessary to notice them at all, were it not that in some of them so many points are discussed, which were not before the court, that, without a close examination, what is really decided would not readily be seen.

There is also another class of cases in which, although the injury complained of is to the corporeal rights of the plaintiff, yet, being merely consequential, and no direct trespass or unauthorized intrusion upon the plaintiff's property being alleged, the question under consideration here could not arise. Such are the cases of Fletcher v. The Auburn and Syracuse Railroad Company, 25 Wend. 464; Chapman v. The Albany and Schenectady Railroad Company, 10 Barb. 360. In these and the like cases, the title of the company to the ground on which its road is built is not disputed; it is unnecessary, therefore, to notice them further here.

We come, then, to the consideration of the cases which do bear, with more or less weight, upon the question to be decided, and upon which, so far as authority is concerned, its decision must mainly depend. The first among these cases, in the order of time as well as of importance, is that of The Presbyterian Society of Waterloo v. The Auburn and Rochester Railroad Company, 3 Hill, 567. The declaration was in trespass for entering upon the plaintiffs' premises, digging up the soil, and constructing their railroad track upon it. The defence was, that the locus in quo was a public highway, and that the charter of the company expressly authorized it to construct its road upon and across any highway. The point, therefore, was presented in the most direct manner possible, and the defence was most emphatically overruled. The language of Chief Justice Nelson is most pertinent and forcible. He says: "But the plaintiffs were not divested of the fee of the land by

the laying out of a highway; nor did the public thus acquire any greater interest therein than a right of way, with the powers and privileges incident to that right; such as digging the soil, and using the timber and other materials found within the limits of the road, in a reasonable manner, for the purpose of making and repairing the same. Subject to this easement, and this only, the rights and interests of the owner of the fee remained unimpaired. It is quite clear, therefore, even if the true construction of the eleventh section accords with the view taken by the counsel for the defendants, that the legislature had no power to authorize the company to enter upon and appropriate the land in question, for purposes other than those to which it had been originally dedicated, in pursuance of the Highway Act, without first providing a just compensation therefor."

It was urged in that case, as in this, that using the road for a railway was only a different mode of exercising the right which had been ac quired by the people; that the use was virtually the same, viz., that of accommodating the travelling public. But the argument met with no favor from the court. Judge Nelson says: "It was said on the argument that the highway is only used by the defendants for the purposes originally designed, the accommodation of the public, and for this compensation has already been made. This argument might have been used with about the same force in the case of Sir John Lade v. Shephard, 2 Strange, 1004."

He adds, on this subject: "The claim set up (by the defendants) is an easement; not a right of passage to the public, but to the company, who have the exclusive privilege of using the track of the road in their own peculiar manner. The public may travel with them over the track, if they choose to ride in their cars."

This case, decided by our late Supreme Court upon full consideration and in so emphatic a manner, ought to be conclusive, unless it appears upon principle to be clearly erroneous. It has never been overruled, nor has its force been materially impaired by any decision in this State. The case of Adams v. The Saratoga and Washington Railroad Company, 11 Barb. S. C. R. 414, might seem, both from the note of the reporter and from some of the remarks of the learned judge who delivered the opinion, to be inconsistent with the case just reviewed; but upon careful examination it will be found that nothing which was necessarily decided in it conflicts in the slightest degree with that case.

The action was ejectment, to recover portions of a street in the vil lage of Whitehall, called Church Street, upon and along which the defendants had constructed their railroad track. Jeremiah Adams, under whom the plaintiff claimed, had originally dedicated the street to the use of the public, laying out lots on each side, all of which he had sold and conveyed to different individuals. The plaintiff's claim rested upon the ground that the title of the purchasers of these lots did not extend to the centre of the street. The court, however, rejected this claim, and held that the plaintiff had no title whatever to the land occupied by the

defendants' road. This certainly was sufficient to dispose of the case, and all that was said, therefore, upon the question depending here, was strictly obiter. The same may be said in regard to the case of Milhau Sharp, 15 Barb. S. C. R. 193. The question did not arise in that

case.

We might, therefore, with propriety, perhaps, consider the case of The Presbyterian Society in Waterloo v. The Auburn and Rochester Railroad Company (supra) as definitively settling the point in this

tate.

I will, however, refer to the case of The Philadelphia and Trenton Railroad Company, 6 Whart. 25, by way of illustrating the reasoning at must be resorted to in order to sustain the right of a railroad comany to occupy a highway, without making any compensation to the individual owners of the fee. The case came before the Supreme Court of Pennsylvania, upon exceptions to the report of the jurors or commissioners appointed by the Court of Quarter Sessions of Philadelphia County to designate the route of the road, they having located a part of the road upon and along Front Street, in the district of Kensington, a part of the city of Philadelphia.

Exceptions were taken by the commissioners having charge of the streets in Kensington, and also by the individual proprietors of lots on Front Street: by the former, on the ground that the location of the road upon the street interfered with the public easement vested in the Corporation of the city; and by the individual citizens on the ground that private property was taken for public use without compensation, trary to the provision of the State Constitution.

The exception of the commissioners is answered by Chief Justice Gison in this wise. He says: "The legal title to the ground, therefore, remains in him who owned it before the street was laid out; but even that is an immaterial consideration, for an adverse right of soil could not impair the public right of way over it, or prevent the Legislature from modifying, abridging, or enlarging its use, whether the title was in a corporation or a stranger." It is unnecessary here to question the soundness of this position, although a doubt might arise whether an easement which is quasi at least a matter of contract can properly be abridged or enlarged by the Legislature. The doctrine may perhaps be true in respect to the streets of a city, so far as the corporation alone is concerned, on the ground that the easement is not for the exclusive benefit of the corporators but of the whole people, and, therefore, that the ultimate trust is in the State Government; but that the Legislature have the power to enlarge a use, as against the donor or vendor of such use, is a doctrine to which I cannot give my assent.

But the Chief Justice gives a different answer to the exception by the individual proprietors. He says: "What, then, is the interest of an individual inhabitant, as a subject of compensation, under the constitutional injunction that private property be not taken by a corporation blic use without it? Even agreeing that his ground extends to

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the middle of the street, the public have a right of way over it. Neither the part used for the street nor the part occupied by himself is taken away from him; and as it was dedicated to public use, without restriction, he is not within the benefit of the constitutional prohibition, which extends not to matters of annoyance."

Is this sound doctrine? Is it true that one who dedicates land, for a highway, or street, dedicates it to the public use without restriction? I apprehend it is an assumption wholly unfounded, and contrary to a multitude of cases in which it has been held that the public acquire nothing beyond the mere right of passing and repassing upon the highway, and that in all other respects the rights of the original owner remain unimpaired.

I will not dwell longer upon this case, as it will not be seriously, and cannot be successfully, contended either that the dedication of land for a highway gives to the public an unlimited use, or that the Legislature have the power to encroach upon the reserved rights of the owner by materially enlarging or changing the nature of the public easement.

The only plausible ground which can be taken is that which was assumed in the case of The Presbyterian Society of Waterloo v. The Auburn and Rochester Railroad Company, and which has also been assumed here; viz. That to convert a highway into a railroad track is no material change in, or enlargement of, the uses to which it was originally dedicated; that the construction of a railroad along a highway is simply one of the modes of accomplishing the object of the original dedication, viz., that of creating a thoroughfare and passageway for the public; in short, that the railroad is a species of highway, and that the two uses are substantially identical.

But is this assumption just? Are the two uses the same? If the only difference consisted in the introduction of a new motive power, it would not be material. But is there no distinction between the common right of every man to use upon the road a conveyance of his own at will, and the right of a corporation to use its conveyances to the exclusion of all others; between the right of a man to travel in his own carriage without pay, and the right to travel in the car of a railroad company on paying their price?

It may be said that the use of the road as a common highway is not subverted; that a man may still drive his own carriage upon it. Without pausing to notice the fallacy of this argument, and the impractica bility of the enjoyment of such a right where railroad trains are passing and repassing every half hour, let us look at the subject in another point of view. The right of the public in a highway is an easement, and one that is vested in the whole public. Is not the right of a railroad company, if it has a right to construct its track upon the road, also an easement? This cannot be denied, nor that the latter easement is enjoyed, not by the public at large, but by a corporation; because it will not be pretended that every man would have a right to go and lay down his timbers, and his iron rails, and make a railroad upon a high