sion of cities and towns, and thus, possibly, may become a city street, subject to use as such.

§ 318. Legitimate street uses. The question, therefore, which naturally follows is what are legitimate street uses? Horse railways,97 pipe lines for the conveyance of gas or water,98 appliances for street lighting," and sewers are held to be necessary and proper uses of streets where they would not be of a rural highway. But can we consistently go further. and include telegraphs and telephones within that use? It has been said that the primary law of the highway is motion. This is undoubtedly true. This is the fundamental principle controlling the law of highways, and always has been, and we think it may be said to be equally true of streets. If this then be true, how can it be held that the poles and wires of telegraph and telephone companies are within the proper and legitimate use of streets and highways. Their presence is either a servitude or is not one. If not a servitude, then fifty poles might be placed in front of a man's property, perhaps by as many different companies, and there would be no remedy, provided his rights of access, light and air were not obstructed. Yet could it be consistently claimed that this was within one of the proper legitimate uses to which streets might be applied? And still, if the fifty were a servitude, each pole of itself would also be. It is true that in the case of a single pole there may be no particular burden, and purely nominal damages in most cases, yet this is none the less a reason why such right should be allowed to the company without compensation. The placing of fifty poles in front of small city lots would be hard to conceive of without injury to access, light and air, but take one of the larger plots used for residence purposes in other than the metropolitan centers, and this might be a possibility without impairing any of the abutter's easements, and in such case there could be no remedy.

§ 319. Use of streets for communication of intelligence.Again it is said the highways and streets are for the purpose, among others, of promoting trade and facilitating communica

97 Craig v. Railroad Co., 39 N. Y. 404.

98 Commonwealth v. Lowell Gas

Light Co., 12 Allen (Mass.), 75.

99 Harlem Gas L. Co. v. Mayor. etc., New York, 33 N. Y. 327.

tion in the daily transactions of business. It is undoubtedly true that one of the purposes of the streets and highways is the communication of intelligence, originally by means of the post-boy or mail-coach. On this ground it has been claimed that telegraph and telephone lines are within the uses of the highway, being simply a new and valuable means of communicating intelligence. But if, on the ground of being a means for the transmission of intelligence, telegraph and telephone companies are to be admitted to the use of the streets and highways, why should not steam railroads also be granted the same use, and not be considered an additional burden, since surely there is no more important carrier of news and intelligence to-day than the steam railroads?

§ 320. Use of highways by commercial railroads.- Commercial railroads have likewise sought to obtain the use of the streets, and on the ground that they were for the purpose of facilitating travel, and were public corporations, have claimed that such use was not an additional burden upon the abutting owner. Yet the courts have held in these cases that whether the easement was acquired by dedication or condemnation, that the streets were only for the use of ordinary travel, and that if condemned, damages were assessed only with that object in view. It must be acknowledged, however, that steam railroads are for the purpose of facilitating travel, and that they certainly, under that head, come within the original purposes of the dedication of a highway or street. Yet we conceive that it is, perhaps, more a difference of degree than of the character of the use, which renders it an additonal burden.

§ 321. Telegraph and telephone - Whether additional burden Conclusion. After a careful examination of the cases in which this question has arisen, and of the many thorough discussions contained in the opinions of such cases, and of the rules of law applicable thereto, we are of the opinion that the construction of telegraph and telephone lines upon the highways or streets is not within the original purposes of the dedication or taking of the same, and that the poles and wires constitute an additional servitude entitling the abutting owner to compensation. The amount of compensation to which he is entitled would, in most cases, however, be purely nominal.

§ 321a. Placing of telephone wires in conduit Whether additional burden. In a case in Indiana the question arose whether the placing of wires in a conduit in the highway constitutes an additional burden. In this case it appeared that a telephone company had dug a trench in the sidewalk for the placing of telephone wires therein without taking any steps to condemn or appropriate any portion of the highway and the plaintiff, an abutting owner, brought an action for an order enjoining further prosecution of the work. The court, however, affirmed the judgment of the lower court, sustaining a demurrer to the complaint for want of sufficient facts and declared that the occupation of the sidewalk with trench and pipes as a conduit for telephone wires is not a new servitude not within the contemplated uses of the street, and, therefore, not an additional burden upon the fee of the abutting owner for which he is entitled to compensation.1 This case follows

1 Coburn v. The New Telephone Co., 156 Ind. 90, 59 N. E. 324, 7 Am. Elec. Cas. 270. The plaintiff in this case was the owner of lots, adjoining the highway, upon which there were no improvements, but he contemplated and intended to erect a large business block on the lots, with cellars, basement and vaults extending under the sidewalk in front of his lots, and it was claimed that the proposed use by the telephone company would be a complete obstruction of the use of the ground under the street and would permanently permanently destroy plaintiff's rights therein. It was said by the court in this connection: "The fact that the entry complained of is upon and under the sidewalk, rather than under the roadway, makes no difference, since a street is a street from property line to property line,- not only the entire surface, but also so much of the depth as is or can be fairly used for the ordinary purposes of a street, each part equally with each

the

other. State v. Berdetta, 73 Ind. 185, 38 Am. Rep. 117, Elliott, Roads & S. (2d ed.) secs. 17, 20. Neither can it be said in the absence of a grant or a general usage equivalent to a municipal license, that the fee owner has any greater or different property right in that part of the street used as a sidewalk for foot travelers than in that part used as a roadway for ve hicles. He may, we think, excavate and improve under the surface from his lot line to the center line of the street, or any part of it, and use his fee property as he pleases (Elliott, Roads & S. (2d ed.), § 690, and cases cited), so long as his use does not impede or interfere with the superior right of the public to use the ground for purposes contemplated by the easement grant. Such fee owner, however, must know that the estate he holds within the limits of the street is servient, and his property right therein qualified, and that any expenditure of labor or money in im

Magee v. Overshiner,2 decided in this State, and which holds that telephone poles and wires in a street are not an additional burden, entitling the abutting owner to compensation. And in a case in New York, it is decided that the placing of telephone wires in a conduit beneath the surface of a street is not an additional burden entitling the abutting owner to compensation.3

provements will neither oust nor impair the right of the municipality to take possession, for a proper purpose, at any time the public interests require; and, in yielding possession under such circumstances to the superior right of the public he parts with nothing he owns, and the losing in itself is no special in

jury, nor a taking of property without compensation," per Hadley, J.

2 150 Ind. 127, 49 N. E. 951, 7 Am. Elec. Cas. 241. See § 307 herein.

3 Castle v. Bell Telephone Co., 49 App. Div. (N. Y.) 437, 7 Am. Elec. Cas. 261.

535