ate the road in question. It cannot be doubted at this day that the legislature of Pennsylvania has the power to authorize the incorporation of companies with power to build and operate railways with horses over the streets of cities, with the authority and consent of the authorities of said cities, as provided by 89 of article 17 of the constitution. And it is too late to say that such use and occupation of the streets impose such an additional burden or servitude thereon as renders it necessary to provide for compensation therefor to the owners of abutting property. Nor can it be successfully urged that the proper municipal authorities may not, at their discretion, repair, improve, and change the pavement put down by the city whenever it may be done without any additional cost or expense to the city or property owners, so far, at least, as it may be of any usual and ordinary character. The power over the streets vested in the city authorities seems to be absolute, so far as its exercise is not inconsistent with their ordinary use, and does not take, injure, or destroy the property of adjoining owners. Therefore, I do not think that the fact that the plaintiff secured the paving of a street from the city, for which it paid in the ordinary way by assessment, took away any right the city had to repair or change the pavement or grade of the street, or to exercise over it the same power it has over any other street or alley in the city. There can be no doubt that, under a proper charter, the city had a right to allow the streets to be used for a street railway, with horses as a motive power. So far as the street use proper is concerned, there is no substantial difference between the tracks of such a street railway and one operated by electricity. We may then assume that, in the occupation of the street with tracks, intermediate paving, and the appliances in ordinary use for railways operated by horses, there is nothing of which plaintiff can legally complain. Whatever dust, noise, and annoyance is incident thereto, they must submit to. But there is a material and substantial difference between such a road and the one contemplated by defendants, as regards its relations to plaintiffs' property. The proposed road not only occupies the middle portion of the street or cart way, but will, as a necessary part of its machinery, have iron posts, some 18 feet high, permanently fixed 3 or 4 feet in the ground, along or near the curb of the pavement or sidewalk, upon which will also be placed permanent lines of wire crossing the street, and upon which will also be placed a permanent wire over each track running longitudinally with the street. Do these singly, or altogether, amount to such a taking of plaintiff's property as is prohibited by the constitution, without compensation? The

placing of the wires over the streets do not appear to be a taking of plaintiff's property. The streets are dedicated to the public use, and he has certain special rights, as an abutting owner, but I cannot see how a wire run through the air above the streets can be said to be a taking, injury, or destroying his property.

66

Poles in street not an with abutter's rights.

interference

But another question arises in reference to the posts placed in the ground for the support of the wires by means of which the cars are moved. It has generally been understood, in Pennsylvania, that the abutting owner had a fee to the middle of the adjoining street, and that the public only has a right of passage over it. Chambers v. Furry, 1 Yeates (Pa.), 167; Lewis v. Jones, 1 Pa. St. 336. But this must not be taken in its literal sense, especially in towns and cities. What might be considered an invasion of private right, so far as the use of a highway is concerned, in the country, might not be so in a city. Thus a city, by virtue of its general authority, may build sewers in streets, and the adjoining proprietor is not entitled to have damages assessed as for a new use or servitude. Fisher v. Harrisburg, 2 Grant, Cas. (Pa.), 291; Cone v. Hartford, 28 Conn. 363; Traphagen v. Jersey City, 29 N. J. Eq. 206; Michener v. Philadelphia, 118 Pa. St. 535, 22 Am. & Eng. Corp. Cas. 328. In such case, the street is not only used without compensation to the adjoining owner, but he is compelled to pay for the use of the sewer. So the right to lay down gas pipes in the streets, as given by the legisla ture to municipal authorities, without allowing compensation, has been recognized by the courts; and, while it has not been expressly ruled in Pennsylvania, that I know of, Justice STERRETT, in Sterling's Appeal, 111 Pa. St. 35, 11 Am. & Eng. Corp. Cas. 330, while deciding that a gas line was an additional burden which entitled the owner to damages in the country, said: 'As to the streets and alleys in cities and boroughs, there are reasons why a different rule, to some extent, should prevail.' Such has been taken to be the law in cities by common consent. I do not think that any one ever heard of a suit in Pennsylvania to recover damages for injury done merely by running a gas pipe along the street, in front of his premises, under municipal authority. So with water pipes, awning posts, fire plugs, and lamp posts. These all, more or less, impinge upon the absolute right of an owner of the soil, and are not necessary to accommodate public travel, or even consistent with the public right to an unobstructed passage way. And it may be now taken as settled that the owner's rights of abutting property are subject to the paramount right of the public, and the rights of the public are

not limited to a mere right of way, but extend to all beneficial legitimate_street uses, as the public may from time to time require. The use of the streets for sewers, tunneling, public cisterns, gas pipes, water pipes, and other improvements necessary for the comfort and convenience of the citizens of cities and towns, so long as they do not substantially interfere with the use of the streets as such, appear to be under legislative and municipal control. Dill. Mun. Corp. § 699. The case of Taggart . Newport St. R. Co., 43 Am. & Eng. R. Cas 208, (decided this year by the supreme court of Rhode Island), is directly in point, and, if good law, covers the case in hand. My own impression is that the use of poles, wires, and other necessary appliances, such as proposed, being used by defendants, is not, in any respect, a greater interference with the ownership of the adjoining property owner on a street than the use of streets for fire plugs, horse troughs, and lamp posts, which have long and generally been recog nized as within the power and control of the city government. Recognizing the right of the legislature and city authorities to authorize the building of railways upon streets of a city, without compensation to property owners, because it is a means of public transportation and accommodation, the necessary and proper apparatus for moving them must be allowed to follow as an incident, unless there is something illegal in their construction or use.

way author

ized by stat

- ute.

"The proposed construction here is no more illegal by reason of its effect upon the owners of property, so far as actual interference with their rights to use the streets Electric rail is concerned, than so many lamp posts, and, if compensation could not be compelled for the ground taken by them, neither should it be for the posts supporting the wires in this case. Thus far I have assumed that the charters of the defendants gave the right to defendants to exercise their powers to construct, maintain, and operate a street railway on Negley avenue. But plaintiffs' counsel lay great stress upon the point that, under the acts of assembly cited, defendants have no right to build and operate a road, because no power is conferred thereby to do so. His argument is that no such power is expressly given by the act of 1889, and cannot be implied; but with this I am unable to concur. The act of 14th May, 1889, is entitled An act for the incorporation and government of street railways in this commonwealth,' and provides that any number of persons, not less than five, may form a company for the purpose of constructing, maintaining, and operating a street railroad on any street or highway upon which no track is laid, or authorized to be laid, with privi

lege of occupying so much of the street used, or authorized to be used, by any existing charters, as is hereinafter provided, for public use in the conveyance of passengers by any other power than by locomotive. This, leaving out restricting matter of location, would read: "A company may be formed for the purpose of constructing,' etc., a street railroad for public use in the conveyance of passengers by any other power than by locomotive.' The method of forming such company is then provided for, and when incorporated it was to have the power and privilege of succession, sue and be sued, make and use a seal, and hold real and personal estate. Section 15 provides: No street passenger railway shall be incorporated under this act within the limits of a city, * without consent of local authorities,' etc. Section 16 requires the construction, etc., to be commenced within one year after the consent of the proper local authorities, etc. It is true that the act does not say the corporation shall have the right to build, maintain, and operate a railroad, but it does say that a company may be formed under the provisions of the act for that purpose; and to suppose the legislature authorized a company to be formed for a specific purpose, and then to say, when formed, it had no power to carry out the purposes of its creation, because they did not declare in so many words that it should have the power to do the very thing for which it was created, is a refinement of interpretation I do not think warranted by either reason or authority. To my mind the power in the Craig Street Railway Company to construct and maintain a railroad in compliance with the terms of the act under which it was incorporated is clear, and that these defendants have shown a legal right to proceed and construct the railway contemplated by them, unless the failure to provide means by which the plaintiffs may have such damages as they may sustain, assessed and paid, or secured in advance, renders the act un. constitutional. Upon this question I am not free from doubt, but the decided inclination of my mind is that the act is not unconstitutional for that reason, because the use of the streets. for the purpose of applying motive power, in the manner proposed, is not such a new use as in cities should be treated as outside the proper use for which streets will be held to have been originally dedicated to the public use. Taggart v. Newport St. R. Co., 43 Am. & Eng. R. Cas. 208, before cited, is exactly in point. The case presented by plaintiffs is certainly not so clear from doubt that a chancellor should grant an injunction summarily stopping a great public improvement, before final hearing, more particularly if the position taken by plaintiffs is correct, and defendants have no

legal right to take possession of the streets, as they are about to do, a common law action will compel them to pay all damages arising to plaintiffs, and thereafter equity would probably afford a complete remedy by which the wrong done them could be fully corrected. Injunction prayed for is refused."

Plaintiffs appealed, assigning for error the court's refusal to grant their prayer.

E. Y. Breck, James F. Robb, W. W. Thompson, and Johns Mc Cleave, for appellants.

John M. Kennedy, William A. Stone, S. A. McClung, Charles H. McKee, and D. T. Watson, for appellees.

PER CURIAM.-The decree is affirmed, and the appeal dismissed, at the costs of the appellant.

Electric Railways in Streets not an Additional Burden Giving Abutting Owners Right to Compensation.- Halsey v. Rapid Transit St. R. Co. (N. J.), 46 Am. & Eng. R. Cas. 76, note 89; Detroit City R. Co. v. Mills (Mich.), 46 Id. 608; Taggart v. Newport St. R. Co. (R. I.), 43 Id. 208.

FARNSWORTH et al.

ย.

LIME ROCK R. Co.

(Maine Supreme Judicial Court, April 21, 1891.)

Corporations Charter-Acceptance and Amendment-Waiver of Forfeit ure. The constitutional amendment which took effect in 1875, requiring the formation of corporations to be under general statutes, does not apply to a charter granted by the legislature before the amendment, although amended by it afterwards. The four years, at the expiration of which a charter of corporation becomes by the statute forfeited, unless the company be organized and its business commenced within that time, do not run against a corporation observing the statutory requirement within that time after its charter has been amended. The amendment is a legislative waiver of any forfeiture.

Eminent Domain-Sufficiency of Petition-Agreement of Parties. A petition praying county commissioners to assess damages for land taken for a railroad need not aver the inability of the parties to agree on the amount of damages, although the charter of the railroad confers jurisdiction on the commissioners in case the parties cannot agree on the amount. The presumption is that they cannot agree.

A Railroad Charter may be Considered as Presumptively Accepted at its date without any record evidence of the fact, when it appears that the grantees afterwards asked for and obtained amendments to their charter and have fully constructed the road.

Eminent Domain-Right of Small Road to Exercise Power-Public Use. The right of eminent domain is available by legislative grant to a railroad corporation which has constructed a railroad for the carriage of freight to