way. Here, then, are two easements: one vested in the public, the other in the railroad company. These easements are property, and that of the railroad company is valuable. How was it acquired? It has cost the company nothing. The theory must be that it is carved Out and is a part of the public easement, and is therefore the gift of the Public. This would do, if it was given solely at the expense of the

ublic. But it is manifest that it is at the joint expense of the public and the owner of the fee. Ought not the latter, then, to have been onsulted?

But it is unnecessary to refine upon this case. Any one can see that, convert a common highway, running over a man's land, into a railad, is to impose an additional burden upon the land, and greatly to pair its value. As no compensation has, in this case, been made to e owner, his consent must in some way be shown. The argument is, that as he has consented to the laying out of a highway upon his land, ergo he has consented to the building of a railroad upon it; although one of these benefits his land, renders access to it easy, and enhances its price, while the other makes access to it both difficult and dangerous, and renders it comparatively valueless. Were the transaction between two individuals, every one would see at once the injustice of the conclusion attempted to be drawn. It is the public interest supposed to be involved which begets the difficulty, and it is just for this reason that the Constitution interferes for the protection of individual rigats, and provides that private property shall not be taken for public without compensation, a provision no less necessary than just, one which it is the duty of the courts to see honestly and fairly enforced.

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The case stated by the learned justice who delivered a dissenting opinion in the Supreme Court is a striking illustration of the injustice that would frequently be done under the rule contended for by the defendants. A street was laid out through a man's land, and he was assessed several hundred dollars for benefits, in addition to the land taken; and before the street was opened it was taken by a railroad company and converted into the track of their road. The owner lost his land, had to pay several hundred dollars, and had the annoyance of the railroad besides; while the railroad company got the road for nothing.

The case of Inhabitants of Springfield v. Connecticut River Railroad Company, 4 Cush. 63, shows what the Supreme Court of Massachusetts thought of the argument that the uses are the same. It was insisted there, on the part of the defendants, that the power conferred upon them by the Legislature, to build their road between certain termini, gave them by necessary implication the right to build their track upon any intervening highway. But Chief Justice Shaw, in reply to this argument, says: "The two uses are almost, if not wholly, inconsistent with each other, so that taking the highway for a railroad will nearly supersede the former use to which it had been legallly appro

OL. II. -39

priated.

The whole course of legislation on the subject of railroads is opposed to such a construction."

I concur with the learned Chief Justice, and have no hesitation in coming to the conclusion that the dedication of land to the use of the public as a highway is not a dedication of it to the use of a railroad company; that the two uses are essentially different; and that, consequently, a railway cannot be built upon a highway without compensation to the owners of the fee. The legislative provisions on the subject were probably intended, as was intimated in The Presbyterian Society of Waterloo v. Auburn and Rochester Railroad Company, to confer the right so far only as the public easement is concerned, leaving the companies to deal with the private rights of individuals in the ordinary mode. If, however, more was intended, the provisions are clearly in conflict with the Constitution, and cannot be sustained.

It follows that the defendants, in constructing their road upon Washington Street without the consent of the plaintiff, and without any appraisal of his damages or compensation to him in any form, were guilty of an unwarrantable intrusion and trespass upon his property, and that he is entitled to relief. Although he had a remedy at law for the trespass, yet, as the trespass was of a continuous nature, he had a right to come into a court of equity, and to invoke its restraining power to prevent a multiplicity of suits, and can of course recover his damages as incidental to this equitable relief. There may be doubt as to his right to recover in this suit the damages upon the lots which have been sold; because, as to those lots, there was no occasion to ask any equitable relief, and to permit the damages to be assessed in this suit, in effect deprives the defendants of the right to have them assessed by a jury. But as this question has not been raised, it is unnecessary to consider it.

The judgment must be reversed, and there must be a new trial, with

costs to abide the event.

SHANKLAND, J., read an opinion concurring in the result of the foregoing, and discussing certain questions of evidence which the disposi tion of the main point, in accordance with his opinion and that of SELDEN, J., rendered it immaterial to decide, and which were therefore not passed upon by the court. COMSTOCK and PAIGE, JJ., took no part in the decision. All the other judges concurring,

Judgment reversed, and new trial ordered.

John Sessions, for the appellant.

Nicholas Hill, for the respondent.1

1 Imlay v. Union Branch R. R. Co., 26 Conn. 249 (1857); Wager v. Troy Union R. R. Co., 25 N. Y. 526 (1862) accord. Contra is the case of Philadelphia & Trenton R. R. Co., 6 Whart. 25 (1840).

So compensation must be given for using a highway for a street freight transfer railroad. Carli v. Stillwater Street R. Co., 28 Minn. 373 (1881). But see Newell v. Minneapolis R. Co., 35 Minn. 112 (1886).

WEST v. BANCROFT.

SUPREME COURT OF VERMONT. 1859.

[Reported 32 Vt. 367.]

TRESPASS QUARE CLAUSUM. Plea, Not guilty, with notice of special stification to the effect that the defendant was one of the trustees of village of St. Johnsbury; that the close in question was a common ighway; that the defendant, with his co-trustees, made an excavation the highway and constructed therein a reservoir for water to be used in sprinkling the streets, to protect the buildings in the village from fire, and for other public uses; and that this was the alleged trespass. At the trial, before Barrett, J., there was a question whether the reservoir was within the limits of the highway. The judge charged the jury that the putting in of a reservoir or cistern by the public authority of the village for public purposes, within the limits of the public highway within the village, would not constitute a trespass for which the owner of the fee could recover. The part of the charge relating to the location of the highway is omitted. The plaintiff excepted to the charge, and the

jurs

returned a verdict for the defendant.1

Child and Benton, for the plaintiff.

J. Willard and Stoddard and Clark, for the defendant.

IERPOINT, J. We think that in view of the evidence, and the admise sions of the parties, as to the location of the highway in the village of St. Johnsbury, there can be no doubt that if the acts complained of in this case were done within four rods east of the western limit of the highway, as used for the last forty years, they were done within the highway, and that the charge of the court on that question was correct. The only remaining question is as to the right of the public to put a reservoir, or cistern, into the earth, within the limits of the highway, for the purpose of retaining water to be used in sprinkling the streets and extinguishing fires. There is nothing stated in the bill of exceptions tending to show, either from the place where this cistern was put, or the manner of its construction, that it was likely to interfere with the full and perfect use of the highway by the public, or to produce any special injury to the owner of the adjoining land, and the owner of the reversionary right in the highway; but the case stands upon the bare right of the public to do the act under any circumstances.

The power of the public over highways is not confined to their use for the sole purpose of travel. Many things may be done therein for the promotion of the public convenience and health, such as laying water

1 This statement is substituted for that in the report.

pipes, constructing drains and sewers, making reservoirs, and many other acts which the public may require; and when these acts are done by the public authorities in a judicious manner and with proper care, having reference to the rights of adjoining proprietors, and the owners of the fee of the land, if such proprietors are incidentally affected inju riously thereby, or the owner of the fee sustains a technical damage, the law furnishes no remedy therefor.

But in this case it is not necessary to resort to this principle, even to justify the acts of the defendant. It is conceded that this reservoir was built by the defendant as a public officer, having charge of such matters, and in the discharge of his official duty; that the object was to retain water to be used in sprinkling the streets, and for other public purposes. This, we think, clearly comes within the object and purpose for which the highway was originally laid out.

All those acts which tend to facilitate travel, and add to the ease, comfort, and convenience of the traveller, or his beasts, whether it be by cutting down the hills, filling the ravines, paving the roads, erecting watering troughs, or sprinkling the streets, are acts which it is proper and often necessary for the public to do. And in a village containing so numerous and active a population as St. Johnsbury, no other one of these acts perhaps would add so much to the comfort of the passers on the highway, as well as all the inhabitants of such village, as that of sprinkling the streets; and such act, instead of infringing on the rights of the reversioner, can hardly be said to approach that uncertain line constituting the true boundary between the rights of the public and the owners of the fee in the highway.

The judgment of the county court is affirmed.

CRAIG v. ROCHESTER RAILROAD COMPANY.

COURT OF APPEALS OF NEW YORK. 1868.

[Reported 39 N. Y. 404.]

THIS is an appeal from a judgment of the General Term of the Supreme Court of the Seventh District, perpetually enjoining the defendant from laying its track (a horse-railroad track) in East Avenue, a public street of the city of Rochester, opposite the premises of the plaintiff, or doing anything in relation thereto. The facts of the case are as follows:

The defendant was organized under and by virtue of the General Railroad Act, on the 20th day of May, 1862. On the 24th day of June, 1862, the defendant procured the consent of the Common Council of the city of Rochester to its constructing, maintaining, and operating its road and laying its track through sundry streets of that city, upon certain terms, conditions, and stipulations. By the terms of such consent, such rail

road track was to be constructed of the improved Philadelphia broad rail, six inches face, half inch raised edge, the edge to be laid flush with the surface of the street, four feet ten inches apart between the raised edges, so as to accommodate the most common width of carriage wheels. The track was to be so laid as to permit the free passage of ehicles over the same, and the rails laid even with the surface of the street, and to conform to the grades thereof as they were then established, or should thereafter be established or altered. Provision was made for the keeping open of the streets, &c., during the laying of the rack. The cars to be used on the railroad were to be drawn by horses

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I mules only, at a speed not exceeding seven miles per hour, and to be as the Common Council shall prescribe. Numerous other provisions to the operation of the road were attached to the consent of the Comon Council. Under this consent, which was accepted by the company, the defendant was proceeding to construct its road, when the plaintiff, on the 21st of October, 1862, commenced his action against the defendant, in which he alleged that he was the owner of a lot on East Avenue, extending to the centre of said street, upon which was situated his dwelling-house; that the defendant was a corporation, organized under the Railroad Act, and was about to commence the construction of its road in said East Avenue, running along the centre of said street past his said premises; that the defendant has taken no proceedings to acquire the title of the plaintiff to any part of his premises, or to assess his damages, and that the defendant claimed to construct its road in East Avenue without obtaining his consent, or taking proceedings to acquire titl ; that the construction of said road, and said road after its completio, would, in his judgment, greatly impair his enjoyment of his said premises, and depreciate the value thereof.

The defendant in its answer admitted the title of the plaintiff to the premises in question, and that it was about to construct its railroad through East Avenue, but denied that it would impair or depreciate the value of the plaintiff's premises. The answer then set forth the consent of the Common Council of the city of Rochester, before referred to, and that its road was to be constructed and operated in accordance with the provisions thereof.

The action came on for trial before Justice J. C. Smith, when the plaintiff read the pleadings and rested his case. The defendant put in evidence its articles of association, the map and profile of its route, the consent of the Common Council, before referred to, its acceptance and adoption thereof, with the approval of the attorney of the city, as required thereby. Upon this testimony the case was submitted to the court. The court, on the 2d of April, 1863, made its decision. The findings of the court contain substantially the facts above stated, that the defendant formally accepted the consent of the said Common Council, subject to the conditions, provisions, and restrictions therein contained and bound itself to keep and observe the same, under which it Claims to construct its road, and not otherwise.