Cuyahoga Common Pleas.

Right of public paramount for street purposes. Allen v. Boston, 159 Mass. 324 [34 N. E. Rep. 272; 38 Am. St. Rep. 423]; Coburn v. Telephone Co. 156 Ind. 90 [59 N. E. Rep. 324; 52 L. R. A. 671]; McDevitt v. Gas Co. 160 Pa. St. 367, 375 [28 Atl. Rep. 948].

Street uses distinguished from public uses under rights of eminent domain. Burns v. Telephone Co. 17 Dec. 731 (3 N. S. 257); Little Miami Ry. v. Dayton, 23 Ohio St. 510; 15 Cyc. 614.

Streets may not be used for purely private purposes. Even under right of eminent domain. Burns v. Telephone Co. 17 Dec. 731 (3 N. S. 257); Schaaf v. Railway, 66 Ohio St. 215, 231 [64 N. E. Rep. 145]. Use of streets for steam pipes not a private use. Kumler v. Silsbee, 38 Ohio St. 445; Zanesville v. Telegraph & Telephone Co. 64 Ohio St. 67 [59 N. E. Rep. 781; 83 Am. St. Rep. 725; 52 L. R. A. 150].

Surface uses distinguished from subsurface uses. Hamilton, G. & C. Trac. Co. v. Parish, 67 Ohio St. 181 [65 N. E. Rep. 1011; 60 L. R. A. 5311; Elster v. Springfield, 49 Ohio St. 82, 96 [30 N. E. Rep. 274]; Kellogg v. Traction Co. 80 Ohio St. 331, 346; Cincinnati & Spring Grove Ave. St. Ry. v. Cumminsville, 14 Ohio St. 523, 543; Cincinnati Inc. Pl. Ry. v. Telegraph Assn. 48 Ohio St. 390 [27 N. E. Rep. 890; 12 L. R. A. 534; 29 Am. St. Rep. 559]; Federal Gas & Fuel Co. v. Townsend, 14 Dec. 5 (1 N. S. 289); Quincy v. Bull, 106 Ill. 337; Lostutter v. Aurora (City), 126 Ind. 436 [26 N. E. Rep. 184; 12 L. R. A. 259]; Boston v. Richardson, 95 Mass. (13 Allen) 146, 160; Witcher v. Water-Works Co. 66 Hun 619 [20 N. Y. Supp. 560]; Crooke v. Water-Works Co. 29 Hun 245; Jayne v. Waterworks Co. 86 N. Y. Supp. 571 [42 Misc. 263]; Smith v. City of Goldsboro, 121 N. C. 350 [28 S. E. Rep. 479]; Columbia Conduit Co. v. Commonwealth, 90 Pa. St. 307; West v. Bancroft, 32 Vt. 367; Elster v. Springfield, 49 Ohio St. 82 [30 N. E. Rep. 274]; McDevitt v. Gas Co. 160 Pa. St. 367 [28 Atl. Rep. 948]; Lebanon Light, H. & P. Co. v. Leap, 139 Ind. 443 [39 N. E. Rep. 57; 29 L. R. A. 342]; Indiana Nat. & Ill. Gas Co. v. McMath, 26 Ind. App. 154 [57 N. E. Rep. 593; 59 N. E. Rep. 287]; Burns v. Telephone Co. 17 Dec. 731 (3 N. S. 257); Cheney v. Barker, 198 Mass. 356 [84 N. E. Rep. 492; 16 L. R. A. (N. S.) 436]; 15 Cyc. 683; Joyce, Electric Law (2 ed.) Sec. 321a; Castle v. Telephone Co. 63 N. Y. Supp. 482 [49 App. Div. 437]; Dillon, Mun. Corp. (4 ed.) Sec. 691; Lewis, Eminent Domain (3 ed.) Secs. 185, 186; McLean v. Light Co. 8 Dec. Re. 619 (9 Bull. 65); Prentiss v. Telephone Co. 32 Bull. 13; Kumler v. Cincinnati, 6 Dec. Re. 1018 (9 Am. L. Rec. 547); Callen v. Light Co 66 Ohio St. 166, 168 [64 N. E. Rep. 141; 58 L. R. A. 782].

Callen case rests on a statute not applicable to case at bar. 10 Am. & Eng. Enc. (2 ed.) 1200; Giesy v. Railway, 4 Ohio St. 308.

Stone v. Light Co.

PHILLIPS, J. (Orally.)

The plaintiff owns and occupies a lot fronting fifty feet on Euclid avenue, having a six story and basement building thereon, the basement extending thirteen feet under the sidewalk. The roadway of this street is sixty feet wide, and each sidewalk is nineteen feet wide. This space under the sidewalk, thirteen by fifty feet, is, and for many years has been used by plaintiff in connection with his basement, and is of great value to him and to his property.

The defendant, an Ohio corporation, is engaged in the business of furnishing light, heat and power to the public generally, by means of pipes and conduits laid under ground, and is about to place one of its steam pipes in and along said excavation under the sidewalk. Plaintiff asks that defendant be enjoined from making such use of said part of the street.

The defendant answers, justifying its proposed action, under an ordinance of the city council and the direction of the board of public service. To this answer the plaintiff demurs.

The nature of the case and the course of the arguments involve two questions: First, is the proposed use of this part of Euclid Avenue a proper street use? In other words, is the laying of steam pipes beneath the surface of the street, for supplying steam to such of the public as may want to use it for heat and power, such use of the highway as may properly be authorized by the public authorities; and, secondly, has the plaintiff such right to the use he is making of the part of the street as makes it immune from the proposed interference therewith?

The suggestion in argument that this is not a public use of the street, is answered by our Supreme Court, and others, holding that the public use does not mean a use for the benefit of the entire public, or of any large portion of it; but the use may be limited to the inhabitants of a small or restricted locality, if the use and benefit be in common, and not to particular individuals, or a very few persons. cite McQuillen v. Hatton, 42 Ohio St. 202; Costar v. Water Co. 18 N. J. Eq. 55; Ross v. Davis, 97 Ind. 79; Pocantico Water-Works Co. v. Bird, 130 N. Y. 249 [29 N. E. Rep. 117].

I

Any contention in this regard, however, must be deemed foreclosed in this case by the averment in the petition that the defendant is "engaged in the business of furnishing light, heat and power to the public generally." The question remains, however, whether this public use of the street is a proper street use.

How stands this question upon principle-upon principles to be drawn from the trend of well-considered authoritative cases? In the earlier cases, controlling effect was too often given to the ownership of

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the fee in the land embraced within the highway. But in the later cases little or no effect is given to this feature. In Lewis, .Em. Dom. (3 ed.) Sec. 28, the author says:

"The uses which the public may make of a street do not depend upon the ownership of the fee. If the fee is in the abutting owner, it is subject to all legitimate street uses. If it is in the public, it is in trust for street uses, and is subject to certain rights or easements in the abutting owner, which can not be impaired by any diversion of the street to other uses. * * It seems every way desirable that a distinction which is never made in the every-day dealings between man and man, touching abutting property, should be abandoned by the courts. There is no substantial distinction between a perpetual easement for street uses, and a fee for street uses.

The same doctrine has been announced by our Supreme Court again and again. The latest expression of that court upon the subject is found in Kellogg v. Traction Co. 80 Ohio St. 331. I will not stop to read.

In many of the earlier cases, and in some of the more recent cases, the public right is limited to such uses of the highway as will in some way, directly or indirectly, promote and subserve the primary purposes of travel and transportation. The efforts of some courts to bring some new use within this narrow and partial view of the primary purposes of the highway, are more amusing than instructive. In the march of progress, in the social and in the business world, the law must necessarily follow; it cannot lead. But while the courts cannot keep abreast of the march of progress, they ought at least to keep within hailing distance of the procession.

We are making many uses of streets in large cities that were not intended, or thought of. when the streets were dedicated; and it is reasonably certain that in the future still other uses will be made-must be made, of municipal highways to meet the growing necessities of dense population and of congested business. Following this inevitable enlargement of street uses for public purposes, the courts have taken a broader view of street uses than was demanded in the earlier cases, and have generally held that the legitimate public uses of a municipal highway are not limited to such uses as must have been in actual contemplation by the dedicator, but are to be extended to all such public uses as are not destructive of, or inconsistent with, the uses so originally contemplated. The sound logic of this view is, that the preservation and maintenance of the original purpose and benefits of the dedication, does not require a restriction to such uses as were originally contemplated, but only that no new use shall be allowed that will destroy or impair the uses originally contemplated.

Stone v. Light Co.

It is very clearly to be seen that the rule of restriction,-the old rule, if I may so call it,-while it preserves to the public all of the benefits originally contemplated by the dedication, stands in the way of making new and necessary uses of the highway that do not come within the original contemplation. It is just as clearly to be seen that the new rule, if I may so term it, preserves to the public just as fully, all the benefits originally contemplated by the dedication, and at the same time sanctions and fosters the additional public uses that grow out of the necessity of the situation. The former rule is narrow and restricted; the latter is broad and comprehensive, as all rules should be that concern the public welfare.

This gradual development of the law is not at all exceptional; it is a natural process. However erratic and disorderly the course of legislation may be, the laws that rest upon principle, and that embody doctrines, are evolved by an orderly sequence of events coincident with the progress of social and business conditions. Herbert Spencer says that the growth and adaptation of the law is brought about mostly by small accumulated changes, the unprompted workings of organized society,-much as towns and cities have insensibly grown up,-to meet the growing wants of a progressive humanity.

It may safely be assumed, I think, that the primary purpose, and perhaps the only purpose in actual contemplation in the dedication of land for a highway was the surface use thereof. But, as I have said, this has been found to be only a partial view of the authorized uses of a municipal highway. Lewis, Em. Dom. 182, says:

"While the purpose of streets is primarily for public travel and transportation, yet in populous districts it has been the immemorial custom to employ them for other purposes of a public nature which, though having little or no connection with the use or improvement of the street as a highway, are not inconsistent with such use. Out of this usage has grown up a rule that streets in cities and villages may be used for various incidental purposes."

The Supreme Court of Minnesota, dealing with the construction of a telephone line along the side of a country highway, has this to say upon the subject I am considering. I read from Cater v. Exchange Co. 60 Minn. 539, 543, 545 [63 N. W. Rep. 111; 28 L. R. A. 310; 51 Am. St. Rep. 543], Judge Mitchell delivering the opinion:

"The question then is, what is the nature and extent of the public easement in the highway? If there is any one fact established in the history of society and of the law itself, it is that the mode of exercise of this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a foot-path. In a slightly more advanced state

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it included the idea of a way for pack animals, and next a way for vehicles drawn by animals-constituting, respectively, the 'iter,' the "actus' and the 'via' of the Romans. And thus the methods of using public highways expanded with the growth of civilization until today our urban highways are devoted to a variety of uses not known in former times and never dreamed of by the owners of the soil when the public easement was acquired. Hence, it has become settled, that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterward be discovered and developed in aid of the general purpose for which highways are designed. And it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired and are more onerous to him than those then in use.

"Another proposition which we believe to be sound is that the public easement in the highway is not limited to travel or transportation of persons, or property in movable vehicles. This is doubtless. the principal and most necessary use of highways, and in a less advanced state of society was the only known use, as the etymology of the word 'way' indicates, and the courts, which as a rule are exceedingly conservative in following old definitions, have often seemed inclined to adhere to this original conception of the purpose of the highway, and to exclude every form of use that does not strictly come within it, but it is now universally considered that urban highways may be used for constructing sewers and laying pipes for the transmission of gas, water and the like, for public use. Some courts put this on the ground that these uses are merely incidental to, and in aid of, travel on the streets. Other courts put it on the ground that such uses are contemplated when the easement in urban ways is acquired, but not in the case of rural highways. But it seems to us that neither of these reasons is either correct or satisfactory. The uses referred to of urban streets are not in aid of travel, but are themselves independent and primary uses, although all within the general purpose for which highways are designed. Neither can a distinction between urban and rural ways be sustained on the ground that such uses were contemplated when the public easement was acquired in the former, but not when the easement was acquired in the latter. As a matter of fact, most of these uses were unknown when the public easement was acquired in many of the streets in the older cities. Indeed, many of what are now urban highways were merely country roads when the public acquired its easement in them, and doubtless many highways that are now merely country roads, will in time become urban streets. When such changes