CHAPTER VIII.

RAILROADS UPON HIGHWAYS.

THE rights of the owners of land lying upon highways and streets, as affected by the laying of railroads upon or across them, will be chiefly treated in this chapter; but various obligations of the owners and managers of such railroads to the public will be incidentally referred to. The uses to which highways may be put under the public right acquired by the original taking, and the conditions under which the adjoining owners are entitled to compensation when railroads worked by steam or horse power are laid upon them, will be especially considered.

In determining the rights of land-owners it is not material whether the land for the street was originally dedicated gratuitously by the owner, or appropriated by the State by compulsory proceedings. A distinction has been suggested between highways in the open country, and streets within the limits of cities or populous villages, according to which the latter may be used for more various uses than the former, as for laying gas and water pipes, or for any other like purposes conducive to the comfort and health of the inhabitants. But as both the highway and the street are appropriated for the same general purpose, and a highway in a district sparsely inhabited at one time may, by the growth of population, become a street in a city, this distinction does not appear to rest on a sound basis.

It seems, on principle, immaterial in determining the proper uses of a highway whether the adjacent owner retains the fee in the street. If he retains it, the easement granted to the public should be deemed broad enough for all modes of travel consistent with the primary and general one; and even if the

1 Williams v. New York Cent. R. Co., 18 Barb. 222, 16 N. Y. 97; Drake v. Hudson River R. Co., 7 Barb. 508.

2 Chapman v. Albany & S. R. Co., 10 Barb. 360; Plant v. Long Island R. Co., 10 Barb. 26; Milhau v. Sharp, 15 Barb. 193; Williams v. New York Cent. R. Co.,

Wetmore

18 Barb. 222, 246, 16 N. Y.
97;
v. Story, 22 Barb. 414, 486, 3 Abbott Pr.
262; People v. Kerr, 27 N. Y. 188, 201,
215.

3 People v. Law, 34 Barb. 494; Morris & E. R. Co. v. Hudson Tunnel R. Co., 10 C. E. Green, 384.

public has acquired the fee, he has still an interest in the street for access and passage which is entitled to protection.1

Changes of Use, when a new Taking. The use of property taken by the right of eminent domain is not confined to the precise mode or kind of use which was in view at the time of the taking, but may extend to other modes which were then unpractised and unknown. When property has been taken for a public use, and full compensation made for the fee or a perpetual easement, its subsequent appropriation to another public use - certainly if one of a like kind-does not require further compensation to the owner. Nor is such compensation required where there is a change in the person or body enjoying and controlling the property taken, or in the conditions upon which the public may use it. Accordingly, the adjoining owner is not deprived of any constitutional right when a highway is transferred to a private corporation charged with the duty of maintaining it and invested with the power of taking tolls, nor when a turnpike becomes free to public travel. There is no change of use involving a new taking when, under legislative authority, the location of a plank-road or canal is converted into that of a highway, or of a railroad.6

Highways may be used, under legislative authority, for other

1 Haynes v. Thomas, 7 Ind. 38; Protzman v. Indianapolis & C. R. Co., 9 Ind. 467, 469; Cincinnati & S. G. A. St. R. Co. v. Cumminsville, 14 Ohio St. 523, 546; Louisville & F. R. Co. v. Brown, 17 B. Monr. 763, 775; Cosby v. Owensboro & R. R. Co., 10 Bush, 288; Elizabethtown, L., & B. S. R. Co. v. Combs, 10 Bush, 882; Jeffersonville, M., & I. R. Co. v. Esterle, 13 Bush, 667; Cadle v. Muscatine W. R. Co., 44 Iowa, 11; Barney v. Keokuk, 94 U. S. 324, 340; Kellinger v. Forty-Second Street R. Co., 50 N. Y. 206. The vacation of a highway is not an actionable injury. Barr v. Oskaloosa, 45 Iowa, 275; Gray v. Iowa Land Co., 26 Iowa, 387.

2 Chase v. Sutton Man. Co., 4 Cush. 152; Pierce v. Somersworth, 10 N. H. 369; Heyward v. New York, 7 N. Y. 314; Rexford v. Knight, 11 N. Y. 308.

3 Chagrin Falls & C. Plank R. Co. v. Cane, 2 Ohio St. 419; Cincinnati & S. G. A. St. R. Co. v. Cumminsville, 14 Ohio

St. 523, 545, 548; Benedict v. Goit, 3 Barb. 459; Davis v. New York, 14 N. Y. 506, 516; Walker v. Caywood, 31 N. Y. 51; Craig v. Rochester City & B. R. Co., 89 N. Y. 404, 412; Wright v. Carter, 3 Dutcher, 76; Douglass v. Boonsborough Turnp. Road Co., 22 Md. 219. But see Williams v. Natural Bridge Plank R. Co., 21 Mo. 580; Cape Girardeau & B. M. & G. Road Co. v. Renfroe, 58 Mo. 265.

4 Murray v. County Com'rs, 12 Met. 455. See Stetson v. Bangor, 60 Me. 313. 5 Malone v. Toledo, 28 Ohio St. 643, 34 Ohio St. 541.

6 Brainard v. Missisquoi R. Co., 48 Vt. 107; Hatch v. Cincinnati & I. R. Co., 18 Ohio St. 92, in which compensation was allowed for the special damage caused by the change; Goodin v. Cincinnati & W. Canal Co., 18 Ohio St. 169. See Lafayette, M., & B. R. Co. v. Murdock, 68 Ind. 137. As to the use of the location for a line of telegraph, see ante, p. 159.

purposes than mere travel, as for drains, sewers, water and gas pipes, and tunnels, which promote the general health or convenience, without further compensation to the adjoining owner; 1 but not, it has been held, for a market.2 The right of laying gas-pipes in the highway is, however, a franchise which can be derived only from the State.3

A Railroad in a Highway not necessarily a Different Use. The purpose of opening a highway or street is, to provide the public with a right of passage for persons on foot or riding in carriages or other kinds of vehicles. The use for which this public right is obtained is not confined to the same species of vehicles, drawn by the same kind of power that prevailed at the time of the dedication or appropriation, but admits of the passage and repassage of such other vehicles, operated in such a mode and by such forces as an advanced civilization may require for the general convenience. The improved method of conveyance may incidentally increase or depreciate the value of property on the highway; but, provided the right of ingress and egress, of passage and repassage, is left reasonably free to the adjoining owner, the injury is one which the law does not recognize. A railroad laid out over or upon a highway or street, under proper legal authority, is within the legal intent of the original sequestration or dedication, and is not an invasion of private right entitling the owner to compensation by virtue of the constitutional prohibition, provided it is so laid and constructed as not to be incompatible with the use of the highway in the other usual modes of passage and conveyance. It is not necessarily a nuisance, even in a large city, although it may to a certain extent interrupt the free passage of other kinds of vehicles; and unless unreasonable or permanently exclusive in its occupation of the highway, when authorized by competent authority, it is not an invasion of private rights. The statute which authorizes the structure to be laid legalizes the obstruction, and is a defence to an action or an indictment. The exclusive right to take tolls from persons who are carried in its cars, vested in a private corporation

1 West v. Bancroft, 32 Vt. 367; Plant v. Long Island R. Co., 10 Barb. 26; Kelsey v. King, 32 Barb. 410; Malone v. Toledo, 28 Ohio St. 643, 34 Ohio St. 541; Chicago v. Rumsey, 87 Ill. 348. Streets

may be used for a boulevard. People v. Walsh, 13 Chicago Leg News, 23.

2 State v. Laverack, 5 Vroom, 201 8 Jersey City Gas Co. v. Dwight, 2 Stewart (N. J.), 242.

or individuals, does not make such a use of the highway a diversion from its original purpose any more than if a like structure were laid by the city or town.1

A Railroad in a Highway held in Several States to be a Different and Additional Use. The law, however, as to the rights incident to the ownership of land upon highways is, in certain jurisdictions, held otherwise than as here stated. A railroad, with tracks laid under statute authority on the highway by individuals or a private corporation, with the right to take tolls for carrying persons and goods, even when a reasonable passage for ordinary vehicles is preserved, has sometimes been treated as an appropriation of the highway to a new and distinct use entirely foreign to the original one, and subjecting it to an additional servitude and easement, which, even without any special damage, is a taking of private property requiring compensation to the adjoining owner, who by legal presumption is deemed to be the owner of the fee of the highway. The Court of Appeals of New York, reviewing the earlier and conflicting decisions,2 adopted in 1857 this view,

1 Lexington & O. R. Co. v. Applegate, 8 Dana, 289; Wolfe v. Covington & L. R. Co., 15 B. Monr. 404; Louisville & F. R. Co. v. Brown, 17 B. Monr. 763; Cosby v. Owensboro & R. R. Co., 10 Bush, 288; Elizabethtown, L., & B. S. R. Co. v. Combs, 10 Bush, 382; Phil. & T. R. Co., In re, 6 Whart. 25; Monongahela Nav. Co. v. Coons, 6 W. & S. 101; Commonwealth v. Erie & N. E. R. Co., 27 Pa. St. 339; Snyder v. Penn. R. Co., 55 Pa. St. 340; Cleveland & P. R. Co. v. Speer, 56 Pa. St. 325; Danville, H., & W. R. Co. v. Commonwealth, 73 Pa. St. 29; Phillips v. Dunkirk, W., & P. R. Co., 78 Pa. St. 177; Struthers v. Dunkirk, W., & P. R. Co., 87 Pa. St. 282; Brown v. Duplessis, 14 La. An. 842; Moses v. Pittsburg, Ft. W., & C. R. Co., 21 Ill. 516; Murphy v. Chicago, 29 Ill. 279; Stone v. Fairbury, P., & N. W. R. Co., 68 Ill. 394; Chicago, R. I., & P. R. Co. v. Joliet, 79 Ill. 25; Chicago, B., & Q. R. Co. v. McGinnis, 79 Ill. 269; Porter v. North Mo. R. Co., 33 Mo. 128: Lackland v. North Mo. R. Co., 34 Mo. 259; Atlantic & P. R. Co. v. St. Louis, 66 Mo. 228, 3 Mo. Ap. 315; Milburn v. Cedar Rapids, 12 Iowa, 246; Clinton v. Cedar Rapids & M. R. R. Co., 24

Iowa, 455; Ingraham v. Chicago, D., & M. R. Co., 38 Iowa, 669, 34 Iowa, 249; Chicago, N., & S. W. R. Co. v. Newton, 36 Iowa, 299; Cadle v. Muscatine W. R. Co., 44 Iowa, 11; Barr v. Oskaloosa, 45 Iowa, 275; Davis v. C. & N. W. R. Co., 46 Iowa, 389; Barney v. Keokuk, 94 U. S. 324; Whittier v. Portland & K. R. Co., 38 Me. 26; Attorney-General v. Metropolitan R., 125 Mass. 515; McLauchlin v. Charlotte & S. C. R. Co., 5 Rich. 583; Hatch v. Vt. Cent. R. Co., 25 Vt. 49; Richardson v. Vt. Cent. R. Co., 25 Vt. 465; Brainard v. Missisquoi R. Co., 48 Vt. 107; Cincinnati & S. G. A. St. R. Co. v. Cumminsville, 14 Ohio St. 523; Sargent v. Ohio & M. R. Co., 1 Handy (Cincinnati), 52; Tate v. Ohio & M. R. Co., 7 Ind. 479; New Albany & S. R. Co. v. O'Daily, 12 Ind. 551; Wabash & E. Canal v. Spears, 16 Ind. 441; Market St. R. Co. v. Central R. Co., 51 Cal. 583. See Pekin v. Brereton, 67 Ill. 477; Towle v. Eastern R. Co., 17 N. H. 519, 18 N. H. 547.

2 The following cases were thought to sustain the conclusion to which the Court of Appeals came in holding the railroad to be a new use: Fletcher v. Auburn & S.

and has continued to apply it to steam railroads;1 and its authority has had a sensible effect on the course of judicial opinion in this country. The same court has with logical consistency applied the doctrine to street railways worked by animal power,3 while in other States a distinction has been taken between the two kinds of railroads. The doctrine which treats a railroad,