and its operation be consistent with the common public use for which the street was originally designed, and not violate private rights; and either may be so used, and the road so constructed and operated, as to have the opposite effect. * * * Lands are set aside for public streets and highways, not for the present, with its necessities and modes of use, but for all time, with all the added demands that may be made upon the public ways within the scope of their original design, in the course of natural development that is constantly going on. Subject to that test the traction engine, automobile, and street railways, regardless of the motive power used, are entitled to the use of the street, subject to the necessity for consent by public authorities in proper cases, and reasonable police regulations." 71 The court after a careful consideration of what are proper street uses and the rights of abutting owners decided that electric railroads constructed in the usual way and operated by the use of the overhead trolley wire supported by cross wires fastened to poles set at the curb lines of the street, or otherwise located so as not to materially interfere with the ordinary common use of the street, was a proper street use and did not constitute an additional burden, where the poles were located with a reasonable regard to the convenience of abutting owners in the enjoyment of their property. This case is approved 71 Per Marshall, J. 72 The court further said in this connection: "So far as we can discover, the conclusion has been reached that a street railway, having its track laid so as to conform to the surface of the street, regardless of the motive power used or how applied, so long as neither private rights nor the common use of the street for public travel is materially affected, is governed by the law early laid down as to street railways operated by horse power, and that the ordinary electric street railway, with its trolley wires supported by cross wires attached to poles set near the outer edge of the sidewalks, with due regard to the 72 abutting property owners' convenience, satisfies the essential mentioned. Such a railway is but an improved method of using the street for public travel, which was the original purpose to which it was devoted. So was the horse railroad in its day. The same principles that justify one without purchasing the right from abutting property owners, justify the other. There is no limit to the public right to use a street, and every part of it, so long as that use is in aid of public travel thereon and does not unnecessarily interfere with the common use of the way by ordinary modes of travel, and is no substantial impairment of private rights of prop and followed in a later decision in this State.73 And again it is decided in a more recent case that a street railway which operates under ordinances forbidding the use of the line for any other purpose than that of a passenger railway within the streets of a city, except carrying such personal effects as are usually carried by passengers on street railways, and limiting the fare to be charged for each passenger has the right to maintain its tracks and railway without making compensation to abutting owners.74 § 340. Electric street railways - Are additional burden New York Nebraska.- The New York decisions are not in harmony with the preceding cases, it having been held in this State that the use and occupation of a street by a horse railway was an additional servitude upon an abutting owner, holding the fee to the street in front of his premises, entitling him to compensation.75 And this case was cited and followed in a later decision in New York, the same principle being held applicable to the use and occupation of a street by a trolley. erty. An electric car, as compared with a horse car, in regard to freedom from interfering with private rights, is superior as regards relieving the street, because it moves more rapidly, is started and stopped with greater facility, and will readily move the greater number of persons the greater distance in a given time. It is superior as regards actually obstructing the street because of its more rapid motion and shorter stops. These considerations and many others that might be mentioned, have moved courts to declare the law as here indicated," per Marshall, J. 73 Linden Land Co. v. Milwaukee Elec. R. & L. Co., 107 Wis. 493, 511, 83 N. W. 851. 74 Younkin v. Milwaukee Light, H. & T. Co., 120 Wis. 477, 98 N. W. 215. 75 Craig v. Rochester, etc., R. Co., 39 N. Y. 404. 76 Clark V. 76 Middletown-Goshen Traction Co., 10 App. Div. (N. Y.) 354, 41 N. Y. Supp. 1109, 6 Am. Elec. Cas. 148, affirming judgment of Supreme Court, Special Term, perpetually enjoining an electric railway company from maintaining and operating its tracks in front of plaintiff's premises until it should have paid the amount assessed as damages for the location of its tracks in front of such property. In an earlier case in this State the court refused to grant a temporary injunction restraining the erection of trolley poles pending an action for a permanent injunction. In this case a street railway company which had been operating its road by horse power for nearly thirty years had commenced work for the substitution of electricity. Tracy v. Troy & Lansingburgh R. Co., 54 Hun (N. Y.), 550, 3 Am. Elec. Cas. 227, 7 N. Y. Supp. 892. Again in a later case in this State it is decided by the court of appeals that the use of a city street for the purposes of a street surface railroad operated by electric power imposes an added burden upon the property rights of the owners of the fee, subject to the public easement for street purpose." This 77 Peck v. Schenectady Railway Co., 170 N. Y. 298, 63 N. E. 357. The court said in the course of its opinion: "The primary and most important question involved upon this appeal is whether the use of a city street for the purposes of a street surface railroad operated by electric power, imposes an added burden upon the property rights of the owners of the fee subject to the public easement for street purposes. If this were an open question in this State, much could be said to sustain the contention of the appellant that the acquisition of the use, from the owner, of the land for a public street, includes the right to apply it to all the beneficial public uses for which it may be adapted, not only at the time of its acquisition, but such as may arise in future. It is strenuously claimed that an electric surface street railroad in a city, as constructed and operated at the present time, in its use by, and by reason of its necessity to, the people of the municipality constitutes an essential feature not only of public use but of street use, and that such means of transportation have largely superseded the former use of streets, and are now the methods by which a great portion of the people are transported, and hence, as the street was originally established for the accommodation of the traveling public the change in methods of transportation does not constitute a new servitude but only a new and necessary method of accomplishing the purpose for which the street was originally intended, and does not entitle the owners of the fee to additional compensation. This contention is not without force and there are not a few authorities in other jurisdictions which sustain it. In this State, however, the clear weight of authority is adverse to that contention." The court then proceeds to cite Craig v. Rochester City & Brighton R. R. Co., 39 N. Y. 404, and numerous other cases which recognize the doctrine in that case, which was that a horse railroad created an additional servitude, and further said: "The doctrine of the Craig case has now become a rule of property which this court cannot in justice overthrow. Although that case was decided by a divided court, yet it is obvious that the principle there stated has since been generally if not universally recognized as the law of this State and been followed with great uniformity by its courts, as will be seen by reference to the cases to which we have already referred. Therefore, notwithstanding the fact that many jurisdictions have held a contrary doctrine, still, a principle which has been so thoroughly engrafted upon the law of our own jurisprudence should not be lightly disregarded," per Martin, J. Chief Justice Parker wrote a dissenting opinion in this case, citing Joyce on Electric Law, § 341, in which he says in part: "I do not disagree with my associates as to the scope of the decision in Craig decision which was rendered in obedience to the doctrine of stare decisis is followed in a later case in the same court wherein it is declared that though the decision is in conflict with the rule adopted in most other jurisdictions “yet, as that case was most carefully and thoroughly examined and considered and the conclusion reached that we should adhere to the former decision of this court upon the subject, that decision must now be regarded as final and conclusive, not to be overruled and avoided, even by indirection." 78 In Nebraska, also, it is held that the erection of poles for a trolley are an additional servitude.7 79 § 341. Electric street railway- Not additional burden Conclusion. In determining the rights of abutting owners in case of the occupation of streets, the principal question for consideration is: what are proper street uses? Are they such uses by such means merely as were in contemplation or in vogue at the time of the dedication or taking of the streets? Streets are for the purpose of travel, giving to the public the right of free passage. But the old methods of carrying out this purpose are not suitable to the needs of the communities of to-day. What were small towns or villages have grown to be large business and commercial centers, with greatly increased populations, extending over large areas. With these changes, as they were gradually brought about, came new necessities and requirements of the public. More advanced methods of transit were needed between different sections of the same community, and thus horse railways were introduced. This use and occupation of the streets has been held not to be an additional servitude, and yet this method of travel could never v. Rochester C. & B. R. R. Co., 39 N. Y. 404, nor do they disagree with my contention that that decision was a mistake. If the question were now presented to this court for the first time it would undoubtedly hold that the operation of a street surface railroad for the accommodation of passengers is a proper use, against which the owner of the fee to the center of the street has no legal ground of complaint, thus putting this court in line with the courts of other States in this country." 78 Paige v. Schenectady Railway Co., 178 N. Y. 102, 109, 70 N. E. 213, per Martin, J. 79 Jaynes v. Omaha St. Ry. Co., 53 Neb. 631, 39 L. R. A. 751, 74 N. W. 67. 80 See § 335, herein. have been in contemplation at the time of the dedication or taking of many of the streets subsequently occupied for this purpose. Yet the courts in these cases held that such railways were not an additional burden, since the primary use of the streets was for the purpose of travel, and that this use was not confined to means in vogue at the original taking or dedication as a street, but that it was subject to such new means as the necessities of the community might require. Horse railways have now to an extensive degree been supplanted by electric street railways. To these latter many objections have been raised, additional to those raised at the time of the introduction of horse railways.81 Yet, again the courts, always having in view the fact that the streets were primarily for the purposes of travel, have applied the same reasoning, and the conclusion, as supported by the decisions of the courts of nearly all the States, clearly sustains the rule that the use and occupation of the streets by electric street railways, involving, in addition to the laying of tracks, the erection of poles and wires, is not an additional servitude, entitling the abutting owner to compensation, where done in pursuance of statutory authority and in compliance with statutory requirements.82 81 See § 336, herein. 82 See, in addition to cases cited in §§ 335a-339a, the following cases. Connecticut: Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146, 36 Atl. 1107. Indiana: Chicago & Calumet Terminal Ry. Co. v. Whiting, Hammond & East Chicago St. Ry. Co., 139 Ind. 297, 5 Am. Elec. Cas. 236, 38 N. E. 604. Jowa: Snyder v. Fort Madison St. R. Co., 105 Iowa, 284, 75 N. W. 179, 41 L. R. A. 345, 11 Am. & Eng. R. Cas. (N. S.) 53. Kentucky: Louisville Bagging Mfg. Co. v. Central Pas. Ry. Co., 95 Ky. 50, 4 Am. Elec. Cas. 202, 23 S. W. 592. Maine: Taylor v. Portsmouth, K. & Y. St. Ry. Co., 91 Me. 193, 39 Atl. 560. Maryland: Koch V. North Ave. Ry. Co. of Baltimore City, 75 Md. 222, 4 Am. Elec. Cas. 153, 23 Atl. 463, holding that abutting Owner was not entitled to an injunction restraining an electric railway from constructing its line where the permission of the municipal authorities had been obtained pursuant to statutory authority, since the use was not a new servi tude. Massachusetts: Howe V. West End St. Ry. Co., 167 Mass. 46, 44 N. E. 386; Dean v. Ann Arbor St. Ry. Co., 93 Mich. 330, 4 Am. Elec. Cas. 172, refusing injunetion restraining construction of electric street railway. Missouri: Placke v. Union Depot R. Co., 140 Mo. 634, 41 S. W. 915. New Jersey: Roebling v. Trenton Pass. Ry. Co., 58 N. J. L. 666, 34 Atl. 1090, 33 L. R. A. 129, 4 Am. & Eng. R. Cas. (N. S.) 392, 5 Am. Elec. Cas. 136, granting motion to va |