which arose in New Jersey, the court said in reference to erection of structures in streets, "There can, however, be no doubt, I think, that erections may be lawfully made in the streets of a city, for the purpose of lighting them. They must be lighted at night to make their use safe and convenient, and to prevent lawlessness and crime.32 In a later case in this State, this question is considered with reference to a statute conferring the right upon a municipality to occupy the streets with poles and wires for public lighting, either by itself or ing them more safe and convenient for public travel. The right to light the town is presumed to have been acquired and paid for, as incident to the right of public passage, when the property was condemned or dedicated for public use. In other words the taking of land for use as a street includes not only the right of passage, but of securing a convenient and safe passage; to light it, if you please, for that purpose. It is not a new taking of property for public use, but a completing to that extent of the uses of the first taking by adding appliances included within it, and now constructed by reason of the public need. Keasby, Electric Wires

(2d ed.), §§ 29, 76, 77, 82, 84; Lewis Em. Domain (2d. ed.), § 126; Palmer v. Electric Co., 158 N. Y. 234, 52 N. E. 1092, 43 L. R. A. 672, 7 Am. Elec. Cas. 298; In re Public Lighting (Mass.), 24 N. E. 1084, 8 L. R. A. 487; City of Newport v. Newport Light Co., 84 Ky. 166. While the lighting of the streets of a city may be a great convenience to the traveling public, especially under some conditions, the poles, wires and other necessary appliances for so doing are often a positive inconvenience to the abutting landowner, considered merely as such. But the proprietary rights of the landowner, whether the fee

or a mere easement thereon be in the public (Theobold v. Railway Co., 66 Miss. 279, 6 So. 230, 4 L. R. A. 735, 14 Am. St. R. 564, are greatly modified by the rights of the public, which is entitled to a free passage over the street, and to the benefit of lights constructed and operated for that end.

It is said the poles and wires of appellant are unsightly, and are a disfigurement to the property, and an especial injury in that it obstructs the open view of the sea. Similar erections in all cities and towns present, though perhaps in a less degree, like inconveniences to the owners of palatial residences, but disfigurements of this kind to property are not the subjects of compensation, or, if so, they are conclusively presumed to have been paid for upon the opening of the street and its dedication to public use," per Terral, J.

32 Halsey v. Rapid Transit St. Ry. Co., 47 N. J. Eq. 380, 20 Atl. 859, 3 Am. Elec. Cas. 298. That cities and towns are not obligated to light highways at night, see Randall v. Easter R. Co., 106 Mass. 276, 8 Am. Rep. 327; Bailey v. Philadelphia, 184 Penn. St. 594, 41 Week. N. of Cas. 529, 39 Atl. 494, 39 L. R. A. 837, affg. 6 Penn. Dist. R. 727, 20 Penn. Co. Ct. R. 173.

through parties with whom it may contract.33 This was an action of ejectment by an abutting owner for the possession of certain land in front of his property which was occupied by the pole of an electric lighting company, and the court held that so far as the defendant occupied the streets with poles and other appliances for public lighting, and thereby excluded the plaintiff, the ouster was not tortious, and a verdict of not guilty was properly directed. And in a case which arose in Montaina, which was an appeal from one of the district courts which had granted an injunction restraining an electric light company from erecting a pole in an alley upon which plaintiff's property abutted, the injunction was dissolved, the court holding that the use of the streets of a city for such purpose was not repugnant to the general use to which city streets may be put.34 Although in the Montana case the fee to the alley was held to be in the city, yet we are of the opinion that the question as to where the fee to the streets is, is of little import in this connection. The main object of the dedication or taking of streets is for the purpose of travel, and the lighting thereof is directly in line of the furtherance of that purpose, and only tends to make them reasonably safe therefor. Consequently we are of the opinion that the erection of poles and stringing wires thereon, conveying a current of electricity, the object of which is to light the streets, is a proper street use, and constiutes no additional burden entitling the abutting owner to compensation.

$ 330. Electric light poles-When abutting owner entitled to compensation. The abutting owner has the easements of access, light and air, and is entitled to the unobstructed enjoyment thereof. The erection of any structure in the street which materially impairs the enjoyment of these easements will entitle him to compensation. So the court refused to dissolve an injunction which had been granted restraining an electric light company from erecting a pole in front of plaintiff's premises, which created a hindrance to free access to the store.3

33 French v. Robb, 67 N. J. L. 260, 51 Atl. 509, 8 Am. Elec. Cas. 238.

34 Loeber v. Butte General Elec. Co., 16 Mont. 1. 5 Am. Elec. Cas. 130, 39 Pac. 912, per Hunt, J. It

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appeared in this case that the fee to the alley was in the city and that the defendant had a contract to light the streets of the city.

35 Tiffany v. United States Il

§ 331. Electric light poles - Rural highways - Whether additional servitude.- Although a rural highway may not be subject to the same burdens or easements as city streets, yet in its dedication or appropriation as a highway, it is made impliedly subject to such uses as the public may in the future require. The distinction as to the uses of city streets and highways arises out of the necessary requirements of the public in the use made of them. We have seen that in the case of telegraph or telephone lines upon rural highways the weight of authority supports the conclusion that they constitute an additional servitude.36 In the construction and maintenance of poles and wires of an electric lighting company, upon which are suspended wires and lamps for the purpose of lighting the highway, however, there is a use different from that of the telegraph or telephone lines. In the case of the latter the poles. and wires are not used in any sense for a street or highway purpose. The primary object of the highway is for the use of the traveling public and any reasonable means tending to promote the safety and convenience of travelers is a proper use. The lighting of many of the country highways may not be necessary, yet in a large number of cases, a rural highway, especially where a main avenue of communication with a large city, may be used to such an extent for the purposes of travel, that the lighting thereof may be such a benefit to the traveling public, and so promote its safety and convenience that it may be said to be a necessity, and be within the proper uses to which a highway may be devoted, and for which an abutting owner is not entitled to compensation. These views are in accordance with those expressed in a decision in New York.37 In this case an action for ejectment had been brought to remove the poles and wires from in front of premises of the plaintiff, in whom was the fee to the center of the highway, subject to the easement of the whole public therein. The defendant was an electric light company, properly authorized to erect its lines. upon the streets and highways of the town, and under contract

lum. Co., 67 How. Pr. (N. Y.) 73, affd., 51 N. Y. Super. Ct. 280, 1 Am. Elec. Cas. 629.

36 See c. XVI, herein.

37 Palmer v. Larchmont Electric Co., 158 N. Y. 231, 43 L. R. A. 172, 52 N. E. 1092, 31 Chic. L. News, 254, revg. 6 App. Div. 12, 39 N. Y. Supp. 522, 6 Am. Elec. Cas. 128.

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to the town to furnish light for public streets and roads therein. In the lower court it had been held that the erection of the poles and wires in rural highways, even though done under contract to furnish public lighting, could not be done without compensation to the abutting owner. 38 This decision, however, was reversed by the Court of Appeals, which held that the lighting of a highway was one of the uses to which public ways may be devoted, and was one of the burdens which must be borne as an incident to the right of the public traveling over the way, and that the abutting owner was not entitled to compensation. In Pennsylvania, however, it has been held that the construction of an electric light line upon a rural highway is not within the uses contemplated at the time of its dedication or tak ing. 40 The rule as to the erection of electric light poles and wires upon a rural highway for the purpose of private lighting and also for public lighting where the highway is merely a country-road and but lightly traveled seems clearly to be that such poles and wires constitute an additional burden, entitling the abutting owner to compensation. No other conclusion could logically be drawn consistent with the decisions from the earliest times in reference to an abutter's rights in country highways.

§ 331a. Electric light poles - Private alley - Private lighting. The erection of poles and the stringing of wires thereon, in a private alley, for the purpose only of furnishing light to private persons imposes a new and additional burden upon abutting owners who own the fee to the alley and also upon any easement consisting in the use of the alley to which other property owners may be entitled. 41

38 6 App. Div. (N. Y.) 12, 39 N. Y. Supp. 522, 6 Am. Elec. Cas. 128. 39 158 N. Y. 231, 43 L. R. A. 172, 52 N. E. 1092.

40 Haverford Elec. Light Co. v. Hart, 13 Penn. Co. Ct. R. 369, 4 Am. Elec. Cas. 148. "It seems clear to us that the use which an electric company makes of a public highway has no connection with the purposes of a public road, and was not a use in the contemplation of the owner

of the land and the public authori ties when the land was appropri ated," per Swartz, P. J. This decision was rendered on a motion to dissolve a preliminary injunction restraining an abutting owner from interference with certain electric light poles erected in front of his property.

41 Carpenter v. Capital Electric Co., 178 Ill. 29, 52 N. E. 973. 7 Am. Elec. Cas. 312, so holding where a

The question as to the rights of an abutting owner in the case of the use of the street by an electric light company for its poles and wires, purely for the purpose of supplying light or power to private individuals, it having no contract for street lighting, is considered in a recent case in Ohio. In this case it was contended that the rules applicable to a country highway did not apply in the case of city streets, where, under the statute, the fee is in the city. In this connection the court construed the statute as not vesting a fee simple in the municipality, but a determinable or qualified fee and that what was granted to the city was to be held in trust for street uses and street uses only.4 The court then proceeded to consider the general question of the rights of abutting owners and declared that whether the fee is in the abutting owner

strip of land had been reserved in deeds for the purpose of an alley it being declared that it was intended for the ordinary purposes of passage and repassage and not for the erection of any such permanent obstructions as the stringing of wires in the manner shown. The court here said: "The erection and use of telegraph poles in a public highway, where the abutting landowner is the owner of the fee in the highway, constitutes a new servitude, which entitles such owner to recover damages for the additional use thus created. Board v. Barnett, 107 Ill. 507. The principle which is applied to the erection of telegraph poles on a public highway, where the fee of the highway to the center thereof is in the abutting owner, and to the stringing of wires upon said poles over the highway, applies to a private alley, like that here under consideration, where the fee of the ground is in the owner of the property abutting upon the alley. It is immaterial to inquire whether the damages are

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great or small. It is sufficient that the property rights of the appellants are interfered with in a manner detrimental to their interests, as the owners of the fee. The taking possession of their land forcibly and against their will comes within the constitutional inhibition that private property shall not be taken or damaged without just compensation," per Magruder, J.

42 See Ohio Rev. St., § 2601, which the court says is a substantial reproduction of § 6 of the Act of March 3, 1883 (Swan & C. St., p. 1483). It is "And as follows: thereupon the map or plat so recorded shall be deemed a sufficient conveyance to vest in the municipal corporation the fee of the parcel or parcels of land designated or intended for streets, alleys, ways, commons or other public uses, to be held in the corporate name in trust to and for the uses and purposes in the instrument set forth and expressed, designated, or intended."