tion under the rules governing the exercise of this right by commercial railroads." 94 § 343. Electric railway-Connecting line between citiesTransportation of merchandise. The construction of an electric railway through the streets of a village for the purpose of forming a connecting line between cities, to be used not only for conveyance of passengers, but also of merchandise and baggage, is a new servitude for which the abutting owner should be compensated.95 While it is a generally accepted doctrine that an electric railway on the streets of a city for the carriage of passengers only does not create an additional burden entitling the abutting owner to compensation, 96 yet such a railway company cannot also undertake the transportation of merchandise over its tracks and defeat the right of an abutting owner by the fact that it carries passengers also. By undertaking the transportation of freight or merchandise the road becomes a commercial railroad, the operation of which creates an additional burden. This question is considered at length in a recent case in Illinois where an abutting owner brought a bill for an injunction to restrain the construction of an electric railroad in the street on the ground that it was a commercial railroad and constituted an additional servitude, upon his fee to the center of the street for which he had not been compensated or no condemnation proceedings instituted. The ordinance granting the right to the company authorized the carrying of one kind of freight. The court declared that such a road was a commercial road within the meaning of that term and was not the less so because it was confined to the carriage of one kind of freight; and it was decided that being a commercial railroad it consti 94 Abbott v. Milwaukee Light, H. & T. Co., (Wis., 1906), 106 N. W. 523, per Siebecker, J. 95 Chicago & N. W. Co. v. Milwaukee, R. & K. E. R. Co., 95 Wis. 561, 37 L. R. A. 856, 70 N. W. 678. 96 See §§ 336-341, herein. 97 The ordinance contained this provision: "The said tracks and railways shall be used for no other purpose than to transport passen gers and their ordinary baggage, United States mail, express, milk; and the cars and carriages for that purpose shall be of the style and class ordinarily used on such railways in other cities. No freight shall be carried by said grantee, its successors or assigns, excepting such as is used in the construction of their road within the limits of the city of Aurora." tuted a new and additional servitude and that the abutting owner being the owner of the fee of the street to the center thereof was entitled to an injunction.98 So in a case in Wisconsin the court said that it would admit, for the purpose of the case, that a railway authorized to carry freight as well as passengers becomes a commercial raiload instead of a street railroad, and that such a railroad, when laid in a street, becomes an additional burden on the fee, and cannot be laid without the consent of, or compensation made to, the adjoining property owners.99 A similiar conclusion is also reached in a case in Texas.1 In a case in Indiana, however, it has been decided that a street railway, the cars of which are to be designated as express and passenger cars, the former to be used exclusively for hauling light express matter, passenger baggage and United States mail does not constitute an additional burden for which an abutting lot owner on a city street is entitled to compensation.2 98 Wilder v. Aurora, De Kalb & R. E. T. Co., 216 Ill. 493, 75 N. E. 194. 99 Linden Land Co. v. Milwaukee Electric R. & L. Co., 107 Wis. 493, 511, 83 N. W. 851, per Winslow, J. 1 Rische v. Texas Transp. Co., 27 Tex. Civ. App. 33, 66 S. W. 324. 2 Mordhurst v. Ft. Wayne & S. W. Tr. Co., 163 Ind. 268, 71 N. E. 642, 66 L. R. A. 105. The court said in this case: "If, then, the injuries or inconveniences sustained by the owners of lots abutting on a street on which an interurban electric railroad is constructed are neither different from those resulting from the construction and operation of an ordinary street electric railroad, no greater in degree, and if the latter is held not to be an additional burden upon the street entitling abutting lot owners to compensation upon what ground can it be asserted that the proposed interurban railroad is such an additional burden as requires compen * sation to be assessed and paid or $343a. Electric railway- Transportation of merchandise Constructed entirely on one side of highway. In a case in Ohio it has also been decided that the construction and operation of an electric railway along a rural highway, the company being authorized to carry merchandise, is an additional burden. Another element, however, entered into and, in part, controlled the determination of the court in this case, as it appeared that the railway was constructed entirely on the side of a public highway, next to the abutting improved farms owned and occupied by the plaintiffs, and entirely between their lands and the traveled part of the highway. The company had authority to run an unlimited number of cars and trains for the carrying of passengers and the transportation of freight, express matter and government mail. Both of these elements are considered by the court, which reached the conclusion that the railway, both on account of its manner of construction and the fact that it was authorized to carry merchandise, constituted an additional burden.3 § 344. Motive power does not determine question of servitude and compensation. It is not the motive power which determines whether a railway upon the streets is an additional servitude, entitling the abutting owner to compensation, but it is the nature of the use and the mode. So it is said that a city of Ft. Wayne, we do not think the construction and operation of such a railroad in such a manner constitutes an additional servitude upon the street which entitles abutting property owners to compensation," per Dowling, J. 3 Schaaf v. Cleveland, Medina & S. Ry. Co., 66 Ohio St. 215, 64 N. E. 145. The court said: "In our opinion the construction and operation of a railroad as authorized and proposed, must necessarily constitute a serious obstruction to the plaintiff's use of the public highway as a means of access to their farms, and an additional burden on the highway not contemplated in its origi 4 nally intended uses. The whole burden of the railway with all of its authorized appurtenances, is thrown entirely upon the side of the public road next to the plaintiffs' lands, and between them and the traveled part of the roadway. The nature of that burden is not different in any material respect from that imposed by the construction and operation of a steam railroad," per Williams, J. See § 373, c. herein. 4 Williams v. City Elec. Ry. Co., 41 Fed. 556, 3 Am. Elec. Cas. 231; Jaynes v. Omaha St. R. Co., 53 Neb. 631, 74 N. W. 67, 39 L. R. 751; Sells V. Columbus St. Ry. Co. (Ohio, 1892), 28 Week. Law Bull. street railway may be operated by "animal power, steam, electricity, cable, fireless engines or compressed air.” 5 $345. Change of motive power - No additional burden.The change of the motive power of a street railway from animal to mechanical, does not per se impose a new servitude, but tends to facilitate the use of the street as a public way. So where, under proper legislative and municipal sanction, a street railway changed its system from a single track horse railway to a double track electric railway, the abutting owner was held not entitled to compensation, on the ground of its being an additional servitude.7 § 346. Injury to right of access-Injunction.- Although an electric street railway creates no additional servitude, yet it must be so constructed as not to impair the abutting owners' easements of access, light and air, for if it is not so constructed, and there is a material impairment of such an easement, an additional burden will be created, entitling the abutting owner to compensation." So where there were two tracks in the street in question and it appeared that the construction of a third track with the necessary poles would materially impair the right of access of an abutting owner and depreciate the value of his property, the court granted an injunction restraining the construction of such road.10 And an abutting owner will be entitled to relief where a street railway, in the con 172, 4 Am. Elec. Cas. 166, La Crosse City Railway Co. v. Higbee, 107 Wis. 389, 83 N. W. 701, 7 Am. Elec. Cas. 369. 5 Williams v. City Elec. Ry. Co., 41 Fed. 556, 3 Am. Elec. Cas. 231. 6 Louisville Bagging Mfg. Co. v. Central Passenger Ry. Co., 3 Am. Elec. Cas. 236, affd., 95 Ky. 50, 4 Am. Elec. Cas. 202, 23 S. W. 592; Halsey v. Rapid Transit Ry. Co., 47 N. J. Eq. 380, 3 Am. Elec. Cas. 295, 20 Atl. 859; State, Roebling v. Trenton Pass. R. Co., 58 N. J. L. 666, 34 Atl. 1090, 33 L. R. A. 129, 4 Am. & Eng. R. Cas. (N. S.) 392; Reid v. Norfolk City R. Co., 94 Va. 117, 26 S. E. 428, 36 L. R. A. 274. 7 Reid v. Norfolk City R. Co., 94 Va. 117, 26 S. E. 428, 36 L. R. A. 274. 8 See § 341, herein. 9 Zehren v. Milwaukee Elec. R. & P. Co., 99 Wis. 83, 74 N. W. 538, 7 Am. Elec. Cas. 345. 10 Dooly Block v. Salt Lake City Rapid Trans. Co., 9 Utah, 31, 33 Pac. 229, 8 Am. R. Corp. Rep. 327, 4 Am. Elec. Cas. 189. struction of its road, so changes the grade of the street as to injure his means of access.11 Thus it was so held in a case in Wisconsin, where a street railway company proposed to construct and operate an electric street railway upon a highway in a country town and for that purpose and by the permission of the town authorities, to cut down the highway so that an abutting owner's right of access to his property was seriously impaired. The company contended that the town board had full power to change the grade of the highway at pleasure, and without payment of compensation to lot owners and that the company was simply acting as an agent or employee of the town board in doing the grading, and hence that the grading could not be considered as any part of the construction of the railroad, but rather the exercise of the power of the town to grade highways. The court, however, declared that, while cities and other municipal corporations were, under the decisions in that State, endowed with power to alter the grade of a street without any liability to the adjoining lot owners therefor, in the absence of express statutory provisions for compensation, it was doubtful whether town boards possessed such authority. The court then continued to say: "Grant, if you please, that the power exists; still it is entirely certain that it is a power to be exercised solely for public good, and not for the benefit of a private corporation or individual. In the present case it is certain that the attempted change of grade was made at the demand of, and primarily for the sole benefit of, the street railway company. No fact could be more clearly proven than this fact is in the case. Whatever small benefits the general public may receive in the * * * 11 Eachus v. Los Angeles Consol. Elec. Ry. Co., 103 Cal. 614, 37 Pac. 750, holding that the plaintiff might recover under the constitutional provision that just compensation must first be paid where private property is taken or damaged for public use. In this case it appeared that the grade of the street had been cut down, causing injury to the right of access. Westheffer v. Lebanon & Annville St. Ry. Co., 163 Penn. St. 54, where an application was made for an injunction restraining operation of street railway. In laying the track the street had been filled in, seriously imparing access to the property. A demurrer to the injunction was sustained because of laches, but the court expressed the opinion that in such a case the abutter was entitled to relief. |