electric rail corporation, which must avail itself of the benefit of such a law to enable it to do these manifold things to build its railway and put it in operation, may well be considered, from the public nature of its employment, and the interest the public has in the proper conduct of its business, as a "common carrier, without a legislative declaration that it shall be deemed such. But it is plain that the provisions of such a law can have little or no reference to corporations organized and operated as street railways, pro- Act does not pelled by electricity or horse power, and intended apply to to accommodate local convenience for the trans- ways. portation of passengers. They comtemplate a track laid upon an established street or highway, and are usually restricted to the bounds of the city, its vicinity, or adjacent towns, and generally derive their authority to lay their tracks upon such streets or highways from the munici pality or county, and their construction is regarded by many adjudications as a legitimate use of such streets and highways, and an exercise of the right of public travel. This distinction as to the uses and purposes of each of such class of corporations is thus stated in Louisville & P. R. Co. v. Louisville City Ry. Co., 2 Duv. (Ky.) 178, by ROBERTSON, J.: "A railroad is for the use of the universal public in the transportation of all persons, baggage, and other freight; a street railway is dedicated to the more limited use of the local public for the more transient transportation of persons only, and within the limits of the city. In the technical sense, therefore, a street railway is not a railroad." It is not enough that a railway is for a public use to authorize the taking of private property, but the taking must be for a public use within the Scope of its undertaking, and the object which it is to subserve. To authorize railroads operated for such purposes to take the private property of the citizen, and appropriate it to its use without his consent, the statutory authority for it must be plainly given; otherwise, the right does not exist. In view of these considerations, we do not think the provisions of the statute for the condemnation of a right of way apply to the plaintiff, so as to authorize it to take private property without the consent of the owner for its own use as a right of way. It follows that the judgment must be affirmed. ON REHEARING. LORD, J.-Further consideration of our statute for the condemnation of a right of way by a railroad strengthens the conviction that it does not extend to or contemplate the business class of railways to which the plaintiff belongs. Few, if any, of its provisions have any reference or application to it as such. Nor has any authority been cited, or argument sug gested, other than that the word "railroad" may include railways operated by steam or other power, to give it a different construction. In preference to construing the statute by this method, we thought the safer way to ascertain what the legislature intended was, as SHAW, C. J., said in Cleaveland 2. Norton, 6 Cush. (Mass.), 380, " to take the entire provisions of the act and ascertain, if possible, what the legislature intended." From that point of view, we thought it contemplated a railroad in the larger sense, and such as is considered a highway for travel and traffic, with its necessary adjuncts, and that it was to such railroads that the provisions had reference, and come within the design of the legislative grant, conferring on such the right of eminent domain for the various things specified as indispensable to effect the purposes of its organization, and essential to carry on its business. Nor do we find that the authorities differ with us in this regard. Referring to some of the things which must be regarded as among the acknowledged necessities for operating such a railroad, LE ALLEN, J., said in Re New York & H. R. Co. v. Kip, 46 N. Y. 552: “But passenger depots, convenient and proper places for storing and keeping cars and locomotives when not in use, proper, secure, and convenient places having reference to the public interests to be subserved for the receipt and delivery of freight, and for the safe and secure keeping of property between the time of its receipt and dispatch, or after its arrival and discharge, and before its removal by the owner or consignee, are among the acknowledged necessities for the running and operating the railroad, to the proper prosecution of the business in the interests of the public. This may be regarded as indispensable to the accomplishment of the general purposes of the corporation, and the design of the legislative grant." In State v. Railroad Com'rs, 56 Conn. 312, 313, 36 Am. & Eng. R. Cas. 510, CARPENTER, J., said: 46 Depots for passengers and freight are essential parts of a railroad," and that "a railroad is incomplete without them." In speaking of the constitutional power of the legislature to authorize the taking of lands for the construction and operation of railroads, under the statutes of that state, LIBBEY, J., said: "It rests upon the proposition, now well established, that railroads are public highways, the great thoroughfares for public travel and commerce." Spofford v. Bucksport & B. R. Co., 66 Me. 39. In a note in 29 Am. & Eng. R. Cas. p. 52, referring to Mr. Justice HARLAN'S summing up of the legal status of railroads as public highways for travel and traffic, etc., the writer says: "Whence it may be concluded, and these conclusions are sustained by authority, that (1) railways are quasi public corporations, created for the purpose of conducting the business of common carriers of passengers and property upon their lines of railway, and for no other purpose; (2) as such they are engaged in a public service." From the point of view that railroads are highways for public travel and commerce, it is indispensable to the accomplishment of the purposes of their organization that they should have depots for passengers and freight and all the adjuncts necessary and essential to carry on their business. By looking at the entire provisions of our statute, we find all these matters provided for, and within the design of the legislative grant, whence we conclude that our statute contemplated a railway in this larger or comprehensive sense, and intended to confer the power of eminent domain on such as are highways for the carriage of passengers and freight, and not on the class of railways engaged in the business to which the plaintiff belongs. Our conclusion then is that the motion. must be denied. Exercise by Electric Street Railways of Right of Eminent Domain.—It has been held by the territorial supreme court of Utah that under a statute, authorizing the exercise of the right of eminent domain in behalf of steam and horse railroads, the right may be exercised in proper cases in behalf of an electrical street railway. Ogden City R. Co. v. Ogden City, 46 Am. & Eng. R. Cas. 101. It will be observed that the statute in this case was materially different from the Oregon law under which the right was sought to be exercised in the principal case. "Railroad" and "Railway" as Synonymous Terms.-See note 46 Am. & Eng. R. Cas. 229, 232. LOCKHART et al. V. CRAIG STREET R. Co. et al. (Pennsylvania Supreme Court, January 6, 1891.) Electric Street Railway-Additional Servitude-Rights of Abutting Lotowners. The use and occupation of the streets of a city, under legislative and municipal authority, for the purpose of constructing and operating therein an electric street railway, with its appendages of poles and wires, does not impose such an additional burden or servitude upon such streets, as renders it necessary to provide for compensation therefor to the owners of abutting property. Accordingly, an injunction will not lie to restrain the construction and operation of such railway on the ground that no provision has been made for securing in advance compensation for damages accruing to such abutting property owners. Same-Laying Track in Street Paved by Special Assessments. The fact that the street proposed to be occupied by the electric railway has been paved with asphalt, and the cost thereof assessed against the abutting owners, which pavements will be torn up and replaced with an inferior block pavement, does not affect the right of the municipal authorities to consent to the laying of tracks in such street. Same-Authority to Construct and Operate Electric Railway.-A company incorporated under Pa. Act of May, 14, 1839, providing for the formation of corporations for the purpose of constructing street ralways for public use in the conveyance of passengers by any other power than locomotives, may construct and operate a street railway, using electricity as a motive power. APPEAL from Court of Common Pleas, Allegheny County. Bill in equity for an injunction to restrain the construction and operation of an electric street railway in the city of Pittsburgh. The opinion of the court below was as follows: "Plaintiff's bill avers, so far as is material to this applica tion, that the plaintiffs are, severally, property owners of lands abutting upon Negley avenue, in the city of Case stated. Pittsburgh; that said avenue is an improved street of said city, paved only within the last year with a smooth asphalt pavement, paid for by plaintiffs and other abutting property owners, at a cost of some $132,000, and that the same was paved with the said asphalt pavement with a view, and for the purpose, of diminishing the noises and annoy. ances arising from travel on the same, and to increase the value of their lands on said streets as places of residence, and the result has been to greatly increase the value of said lands; that the Craig Street Railway Company claims to have the right to enter upon and construct a street railway along and upon said Negley avenue, from the intersection thereof with Roup street, to the intersection thereof of Bryant street, and then returning with a double track on Negley avenue to said intersection with Roup street; that said Craig Street Railway Company threatens and proposes to at once enter upon Negley avenue to construct, maintain, and operate a street railway with two tracks, etc., and to run thereon cars propelled by electricity as a motive power, and for that purpose to tear up and destroy said pavement, and to replace the same with an inferior block pavement, and to erect along the line of said street, in the properties of plaintiffs, a line of poles on each side of said street, and to suspend wires from said poles across the carriage way of said street, and upon such poles to suspend a wire over each of its tracks running lengthwise of said street; that such poles will be located in such position as defendants may select, of the height of about 18 feet, and about 75 feet apart, and the tracks to be laid will be about 7 feet from the curb line, and that said poles and tracks will be a continual trespass upon said properties, and a serious obstruction to the passage of said street; that it will deprive said plaintiffs of easy and convenient access to the street from their properties, and prevent the use of their respective properties under the surface of said street, etc.; that the running of cars along said tracks by the use of electricity will deprive plaintiffs of the quiet which they have heretofore enjoyed, and 1 which makes their properties especially valuable for purposes of residence, and will greatly damage and depreciate the value of the same. Plaintiffs also aver that the Duquesne Traction Company has made, or is about to make an agreement or lease of some kind for the construction and operation of said passenger railway, and the council pretended to give, by ordinance, the right to enter upon said Negley avenue, and make and construct thereon such motors, cables, electrical and other appliances, and necessary and convenient mechanical fixtures, as said company may, at any time, select, and also to lease the property, rights, and franchises of said Craig Street Railway Company, and to construct and operate the railway of said company. Plaintiffs also aver that a certain other corporation, named the Negley Avenue & Roup Street Railway Company,' has been incorporated to lay a street railway along Negley avenue, between the streets aforesaid, and that its charter existed before and at the date of the incorporation of said defendants. It is also averred that the act under which the Craig Street Railway is incorporated forbids the construction of any railway incorporated thereunder within the limits of any city, etc., without the consent of the local authorities thereof, and that the city of Pittsburgh has no power to assent to or authorize any person or corporation to enter upon, use, or occupy said street except such consent or authority be expressed by general ordinance, and that the said defendants do not possess the authority of the city expressed by general ordinance; also that the act of May 14, 1889, under which the Craig Street Railway Company is incorporated, is unconstitutional in that it does not provide a method or remedy whereby plaintiffs may compel defendants to secure compensation to them in advance; and also that the act of 22d March, 1887, under which the Duquesne Traction Company is incorporated, does not empower it to take property of plaintiffs to its use, or, if it does, then that it is unconstitutional; and finally, that neither of said defendants has any right or power, by virtue of their charter, to construct and maintain a street railway over Negley avenue, in manner threatened by them. "The questions raised by the bill, answer, and affidavits are all merged in one inquiry, to-wit: Have defendants, or either of them, shown the legal right to construct, operate, and maintain a railway on Negley Electric railavenue, as proposed by them? This involves the way not an proper interpretation of defendants' charters, the constitutionality of the acts under which they were street. granted, and the validity of the ordinances of the additional burden on city of Pittsburgh granting them the right to build and oper |