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

STOUDINGER v. NEWARK.

COURT OF CHANCERY OF NEW JERSEY. 1877.

priate

[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, reguZate, 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 appro

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 cit y, graded, flagged, and curbed. The complainant owns and resides

a lot extending along the southerly line of Clay Street, a distance of two hundred and twenty-seven feet. He seeks to have the constructiora 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

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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 judg. ment 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 accommodation of the inhabitants on either side.” And Judge Harris, in Chapman v. Albany and Schenectady R. R., 10 Barb. 360, says: " A 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. 15; Paterson and Passaic IIorse 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 there

? ì . Ore be denied, and the order to show cause discharged.

f

PIERCE v. DREW.

SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1883.

[Reported 136 Mass. 75.] 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. 165 (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 lines 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 cor poration “for the purpose of carrying on any lawful business," excepting certain kinds of business, not material to be stated. REP.

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