and wires, as is applicable where the entire system is for private lighting.54 And in a case in New Jersey it is decided that though a corporation may be authorized to erect poles in the streets of a city or town for the purpose of lighting the same, yet that the use of larger poles than is necessary to furnish the light so required, for the purpose of furnishing light to private individuals, constitutes an additional burden for which the abutting owner is entitled to compensation. The defendant in this case relied for its right to act on the township revision act,54a which provided that: "The township committee shall have the power to provide for lighting the streets and public places of the township, and for that purpose may contract with any person or private corporation for a supply of light for public use in said township." The court in this case said that it did not find it " necessary to determine the question if there be any question of the right of the municipality, under the the township act to erect poles for public lighting purposes on the sidewalk in front of complainant's land without his consent" for the reason that complainant's counsel had assented to the erection of poles necessary for that purpose. It did, however, decide that such act conferred no authority to erect poles for the purpose of supplying electricity for private lighting or for power and declared that it was the impression of the court that such authority, if given by the legislature, would be unconstitutional, unless given upon terms of making compensation.5

5+ See § 332, herein.

54a Act of March 24, 1899 (C. L. p. 399, §§ 67, 68).

55 Andreas v. Gas & Electric Co., 61 N. J. Eq. 69, 47 Atl. 555, 7 Am. Elec. Cas. 319. The court said: "There is, I think, a clear distinction between the function of providing light for strictly public purposes and private purposes, precisely as there is a distinction between providing water for municipal purposes-extinguishment of fires and sprinkling of streets and providing it for private consumers. The municipality may be

*

* *

55

under an actual or implied obligation to supply water for the extinction of fires, and light for the lighting of streets, while it is under no such obligation to furnish either of these elements for private use. And this position is not inconsistent with the general proposition that the furnishing of water and light for private use is a public purpose. This is perfectly well settled. But it is also perfectly well settled that private property cannot be taken for such a public use without compensation first made: and I can find nothing in

§ 334. Street horse railways - Not additional burden.- The use of the streets of a city by a street horse railway company, which has been duly authorized by the legislature to construct and operate such a line, does not constitute an additional servitude, entitling the abutting owner to compensation,56 except

when some private right of such an owner, as his free access to his own land or buildings, has been materially impaired thereby. The principle underlying these decisions is that the streets are acquired for the purpose of free passage or travel, not merely by the means in vogue at the time of their dedication, or taking, but by such new means as the necessities of the age and of the community may require.

§ 335. Distinction between horse railways and electric railways.- Electricity as a motive power for street cars has been and is fast supplanting animal power, and as the former has come into use there has been an endeavor to distinguish between the use of streets by street cars propelled by that force, and cars propelled by means of animal power. The following facts have been presented to the courts in various cases as reasons for holding that electric street railways are an additional burden. That poles and wires are erected in the streets, constituting an exclusive possession of the same, so far as the space occupied is concerned; that the wires are dangerous to the life and safety of the traveling public; that loud and unpleasant noises result, such as the buzzing sound produced while the car is in motion, and by the sounding of the gong; that the cars are more cumbersome and occupy more space; and

new

sin: Hobart y. Milwaukee City R. Co., 27 Wis. 194, 9 Am. Rep. 461. "A street surface passenger railway constructed at a street grade in the usual manner and operated by animal power is not per se a public or private nuisance, nor is it a servitude imposed upon the land for which the owners of the fee are entitled to compensation.” Booth on Street Rys. (1892), § 82. "The laying down of a street railway track does not impose any additional burden." Elliott on Roads & Streets (1890), p. 558. "It has been determined in numerous decisions, and without dissent except in the State of New York, that the use of a street by a horse railroad constructed and operated in the or

dinary manner falls within the purposes for which streets are established and maintained, and, consequently, that for any damages resulting from such use to the abutting owner, he can recover no compensation, whether the fee of the street is in him or in the public." Lewis on Eminent Domain (1888), § 124. The contrary view is, however, taken in New York. Craig v. Rochester City & Brighton R. Co., 39 N. Y. (12 Tiff.) 404.

57 Hobart v. Milwaukee City R. Co., 27 Wis. 194; 9 Am. Rep. 461, quoted with approval in Zehren v. Milwaukee Elec. R. & L. Co., 99 Wis. 83, 74 N. W. 538, 7 Am. Elec. Cos. 345.

that on account of the speed of the car there is much more danger than in horse street railways. These have been the principal reasons urged in the majority of cases. They are all doubtless true to some extent, and as to the views taken by the courts in reference thereto, we shall consider them in the fol lowing sections.

§ 335a. Electric street railways - No additional burdenAlabama. In Alabama in the first case in which we find this question considered it is declared: "The electric railways * * * have practically superseded all systems of street railway enterprise (saving the cable systems in the larger cities), and their nature and modes of construction and operation, as affecting or not the legitimate use of streets within the implied contemplation of the dedication, have been subjects of frequent consideration and adjudication by courts of last resort in this country; and it may be said that there is almost unanimity in the adjudications that such uses are legitimate uses of streets, by the permission of municipalities, without any right of the owner of the fee to compensation therefor.' This case is cited with approval in and followed by Baker v. Selma Street & Suburban Railway Company, wherein it is decided that an electric street railroad is not per se a public or a private nuisance or a new servitude upon the land for which abutting owners are entitled to compensation or to an injunction restraining its construction. And in a more recent case, where the question was again before the court for consideration, a similar conclusion was reached, though it appeared that the street was narrow and it was claimed that the passing of cars thereon would seriously interfere with the ordinary passage of vehicles.60

99 58

59

§ 335b. Electric street railways - No additional burdenIllinois. In a recent case in Illinois it is declared that a road which is merely a street railroad cannot be regarded as an additional servitude, and an abutting owner is not entitled to

V.

58 Birmingham Traction Co. Birmingham Railway & Elec. Co., 119 Ala. 137, 142, 24 So. 731, per Head, J.

59 135 Ala. 552, 33 So. 685, 93

Am. St. R. 42, citing Joyce on Elec.
Law, §§ 278, 336-341.

60 Morris v. Montgomery Traction Co. (Ala. 1905), 38 So. 834, citing Joyce on Elec. Law, §§ 278, 341.

an injunction against its construction, even though he is the owner of the fee of the street to the center thereof.61

§ 335c. Electric street railways - No additional burden Massachusetts.- In Massachusetts it has been decided that an abutting owner has no right to compensation where an electric railway is laid in a public way, and that a statute providing for the assessment of damages caused by the construction of lines "for the transmission of intelligence by electricity' and by the construction of "electric light and power lines" does not include electric railways. 62

§ 336. Electric street railways - No additional burden Michigan.- Detroit City Railway v. Mills was an action brought by an electric railway company to restrain interference by abutting owners with the construction of the road, and the decision was in favor of the complainant. We will quote briefly from the opinion in reference to the main points raised by the defendants. "The electric car does not occupy as much space upon the streets as does the car with the horses attached. It is not more noisy, is cleaner, is stopped and started quicker, moves faster, is more readily controlled, and by its more rapid

61 Wilder v. Aurora, De Kalb & R. E. T. Co., 216 Ill. 493, 75 N. E. 194. In this case the road concerning which the controversy arose was held to be a commercial railroad and to be an additional servitude. See § 343, herein.

a

62 McDermott v. Warren, Brookfield & S. St. R. Co., 172 Mass. 197, 51 N. E. 972, 7 Am. Elec. Cas. 367. Upon the question whether electric railways were included in such statute the court said: "While electric railways use electric power, they are not properly called electric power companies. Their use of power is only in their own business of maintaining and operating railways for the transportation of passengers or freight. In the same way they use electric light for the

illumination of their cars, but they are not for either of these reasons electric power companies or electric light companies. They are not in the business of manufacturing or furnishing electric power or electric light for others. We are of opinion that the statute relied on is inapplicable to the facts stated in the petition, and that it gives the selectmen no jurisdiction to act upon the petition," per Knowlton, J.

The statute construed in this case authorized the assessment of damages by the selectmen of a town caused by the construction of line "for the transmission of intelligence by electricity," and by the construction of "electric light and power lines." Pub. St., c. 109, § 4, amended by statute of 1884, c. 306.