way of an easier grade for vehicles or the privilege of riding upon the electric cars are merely incidental to the main object. That main object was and is the pecuniary benefit to the street railway company arising from the operation of the street cars over the highway, which was impracticable before the change, and will be practicable after the change. The town authorities had no intention of grading the street, and the public did not demand it. We believe public powers which are held in trust to be exercised for the benefit of the whole people ought not to be, and cannot be, farmed out to an individual for his own especial benefit when private rights are thereby invaded. Such proceedings seem to us clearly against public policy. The vice lies not in the fact that the work is physically done by the street railway company instead of by employees of the town (the town may probably choose its own agents, to whom it may intrust the performance of lawful public works), but the vice lies in the fact that the work itself is primarily and essentially private work, done by a private corporation, for the advancement solely of its own ends, and is not a work demanded by the public, or which would be undertaken by the town as a necessary public work. Regarding the change of grade here to be made as substantially a change made by the railroad company for its own ends, and purely to enable it to operate its road successfully, we are unwilling to subscribe to the doctrine that the mere consent of the town authorities will free the railway company from liability to the adjoining owner whose property will be rendered practically inac cessible."

" 12

*. * *

§ 347. Sidewalks- Improvements under-Abutting owners' rights. If the fee to the street be in the abutting owner, a question might arise as to the right to compensation, where the erection of poles would interfere with or damage expensive improvements, lawfully made by him under the sidewalk. Suppose that he has been to the expense of building an apart ment or room under it, and that the planting of the poles as contemplated would damage expensive ceilings and, perhaps, destroy the beauty or usefulness of the room. Would

12 Zehren v. Milwaukee Elec. R. & P. Co., 99 Wis. 83, 74 N. W. 538,

7 Am. Elec. Cas. 345, per Winslow J.

not this constitute such a taking of private property as would require just compensation to be made before the poles could be erected? It would seem so, and doubtless the courts would grant an injunction restraining their erection until compensation had been made. A reference is made to such a contingency by the court in a New Jersey case 13 in the following words: "If such improvements of the sidewalk, or constructions under it, which the landowner shall lawfully make in pursuance of his duty to the public, or for his own private convenience, be expensive in character, so that substantial damage will result to him from the planting of the trolley poles, a serious question will arise whether there will not be a taking of his property for which he must be compensated, and a threatened invasion sufficiently serious to induce this court's interference. But that question is not presented in this case."

Electric railway crossing steam railway. The right of an electric railway to use the streets for the construction and operation of its line without compensation to the abutting owner is founded upon the principle that the public acquires the easement of passage when a street is dedicated or taken, and that such railways are merely a new mode of exercising this use. The right which a steam railway acquires at crossings over streets is subject to the right of the public to use the streets and consequently to pass and repass over the tracks at such places as they may intersect the streets. In other words, the steam railroad's right of way to cross streets is subject to the easement of the traveling public therein, and a street electric railway being a mode of exercising this easement is entitled to construct its lines across railroad tracks, where such tracks intersect streets which the electric railway has been authorized to use, and the steam railroad is not entitled to compensation for the mere crossing of its tracks in such manner. 14

13 West Jersey R. Co. v. Camden, Gloucester & Woodbury Ry. Co., 52 N. J. Eq. 31, 29 Atl. 423, 5 Am. Elec. Cas. 143.

14 Chicago & Calumet Terminal Ry. Co. v. Whiting, Hammond & East Chicago St. Ry. Co., 139 Ind.

297, 5 Am. Elec. Cas. 243, 38 N. E. 604. See also New York, N. H. & H. R. Co. v. Fair Haven & W. R. Co., 70 Conn. 610, 40 Atl. 607, 41 Atl. 169; New York, N. H. & H. R. Co. v. Bridgeport Traction Co., 65 Conn. 410, 29 L. R. A. 367, 5 Am.