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the imposition of a new use, and an additional burden upon the land embraced in the street, and so amounts to the taking of the property of the owner of the fee without compensation, and consequently an invasion of his constitutional rights. This is the important question presented by this appeal. The Common Council of the city are invested with full control and complete authority over the streets of the city, and so far as any legal right existed to make such a use of the streets, they have granted it to the defendants with the most careful and prudential regulations calculated to preserve the full rights of the public in the use of the streets. Laws 1861, p. 317, $ 55, chap. 320, § 161. There is no dispute in regard to any fact in the case, and the judge at Special Term decided this question of law against the defendants, and granted a perpetual injunction restraining the defendants from laying their railroad in this street.

The court below seem to have regarded themselves bound to depart from the decision of the same court in General Term, upon the same question, in the First and Second Judicial Districts, upon the construction which they put upon the decisions of this court in the cases of Davis v. The Mayor, &c., 14 N. Y. 516; Williams v. The N. Y. Central R. R. Co., 16 Id. 97; Carpenter v. Oswego and Syracuse R. R. Co., 24 Id. 655 ; Mahon v. The N. Y. Central R. R. Co., Id. 638; and Wager v. The Troy Union R. R. Co., 25 Id. 526. These cases decide that the construction of a common railway to be run with steam engines in a public street, without the consent of the owners of the fee of the street, is the imposition of a new use, and an additional burden

upon the land embraced in the street, and is the taking of the property of the owner without compensation, and consequently is probibited by the Constitution. There is certainly a broad distinction between these cases and that of a street railroad, with cars to be drawn by horses, at a speed of not more than six miles per hour. In the leading Case of Williams v. The New York Central R. R. Co., the street was literally destroyed for any of the original common uses for which the land was originally taken. With forty engines, and the trains which they draw, passing over the street daily, any use for carriages or common vehicles must be so very extremely dangerous, that the use of the street, for any such purpose, would necessarily be very limited, if not abandoned; and, besides, the railroad corporation, in such a case, takes the exclusive use of the street, and, in all these cases, actual and exclusive possession of the locus of the street is taken by the railroad corporations. In the case at bar, no such thing occurs.

The construction of this railroad in the streets of the city of Rochester, and the operating of it, when completed, does not involve the taking of any title to the land. It is true, the iron rails are to be laid down in the street, but they are required to conform to the grade of the street, and as the same may be changed from time to time by the city authorities, and the rails to be six inches wide, and laid even with the surface of the strect. The track of the road does not become the property of the

new use.

railroad. All that the railroad corporation gets is a license to construct and operate the railroad, but to be enjoyed, subject to the rules and regulations of the Common Council; and these regulations, in the case at bar, are well calculated to secure all the original public use of the street as an easement for public travel, and the common use for carriages and other vehicles, and no one is prohibited from passing over and along the track with teams and vehicles, but, on the contrary, these common rights are but little interfered with ; all that is granted to the defendants is the right to use, not to take and hold, without at all excluding other persons from their former use of the same.

The use which is thus granted is nothing more than the privilege of passing over the streets in question with a species of conveyance somewhat different from that which the public generally use. The inconvenience to the public, in the common use of the street, must be small, and no individual can complain, that a public street is appropriated to a public use somewhat different, unless it is to be regarded a new use, and imposes an additional burden upon the land. This, in my judgment, is not a

When land is acquired to the public use of a street or bighway, the public may lawfully claim the same for all the varying wants which the public may require, only so that such use is in subordination to its principal use as a street. The principal uses of a street are for the passage and repassage of the public, and this public right of passage is not limited to any particular mode of travel which may be in use at the time the land is taken, but to all such new methods as the progress of civilization and improvement may bring into use, only so that it remains a public street still, and devoted to the public use.

The construction and use of such a street railway, as is provided for in the case under consideration, is but a mode of exercising the public right of passage, and I perceive no objection to the public exercising this right by means of public agents, or through the medium of corporations, where they become public common carriers and do not further encroach upon the general public use, than do those street railways constructed and run in conformity to the regulations prescribed in the case at bar. There is no new appropriation of the property of the plaintiff requiring compensation in damages. Nor is there a burden imposed upon his land, caused by a use not contemplated in its original appropriation.

This question has received great consideration in the Superior Court, and has invariably been decided in conformity with the views above expressed, until we came to the cases at bar. 32 Barb. 420; 35 Id. 364; 37 Id. 357; 32 Id. 410; 10 Id. 26; 35 Id. 373. These cases are well considered, and are referred to as affording satisfactory reasons for the judgments given. This question came before the Supreme Court of the State of Ohio, in the case of The Cincinnati Street Railroay r. Cumminsville, 14 Ohio, 524, and the case was decided the same way, and to the same effect, as the decision of the Supreme Court of Connecticut in the case of Elliott v. Fair Haven R. R. Co., 32 Conn.

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579, where the question is well considered by Judge Ellsworth, who delivered the opinion of the court in that case. Other cases might be referred to, sustaining the same views. The course of judicial decisions in other States is certainly in accordance with the views above expressed, upon the ground, substantially, that the public easement is not destroyed, but only used according to a new and improved mode. The precise question has never been decided in this court.

In the case of Davis v. The Mayor &c. of N. Y., 14 N. Y. 530, 531, Judge Comstock expressed the opinion that such a use of the streets of a city was lawful, and that this highway and railroad track could co-exist and constitute one public easement. The very able opinion of Judge Emott, delivered in this court, in the case of The People et al. v. Kerr, 27 N. Y. 188, fully sustains the views above expressed, and the opinion of Judge Wright in that case certainly favors this view, as does the decision of the court, although this question cannot be said to be there decided. I will only say, without further discussion, that this conclusion, which I have attained, after a careful examination of the adjudged cases, and the best reflection which I have been able to bestow upon this matter, is, that this new use of the streets, for the carrying of passengers by horse railway, is consistent with the public use for which the lands of the streets were originally appropriated, and is not so far antagonistic to their common use as streets, as to deprive the adjacent owner of the fee of any property, or interest in the lands for which he can claim compensation.

The great object of a highway is to furnish accommodations for the passage and transportation of travellers and freight; and these street railways and these street cars are only one of the legitimate means to accommodate the public travel, and is a lawful use of the street.

It follows that the judgment of the Supreme Court should be reversed, and the plaintiff's complaint dismissed. WOODRUFF and Dwight, JJ., concurred in this opinion.

Judgment affirmed, with costs,

BLOOMFIELD NATURAL GAS COMPANY v. CALKINS.
COURT OF APPEALS OF NEW YORK. 1875.

[Reported 62 N. Y. 386.] APPEAL from order of the General Term of the Supreme Court in the Fourth Judicial Department, confirming the report of commissioners appointed to ascertain and appraise the compensation to which defendant was entitled for lands taken by the petitioner. The petitioner was a corporation organized under the general Act pro

The cases generally are contra ; see Elliott v. Fair Haven R. R. Co., 32 Conn. 579 (1860) ; A. G. v. Metropolitan R. R. Co., 125 Mass. 515 (1878).

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 bighway, 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 prin ciples 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

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v. Troy Union R. R. Co., 25 Id. 526.) These cases settled the law, besond 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 Rail

coad Co., 39 N. Y. 404, and it was there decided, after full considzration 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 adClitional 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 bere 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 bominal 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 character. It 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

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. 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

was

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