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found as a fact that the lot owners would suffer injury from the construction of the road. The city was not entitled, because, though it held the fee, it held it in trust for the use of all the people of the State, and not as corporate or municipal property; and the land having been originally acquired under the right of eminent domain, and the trust being publici juris, it was under the unqualified control of the legislature, and any appropriation of it to public use by legislative authority could not be regarded as an appropriation of the private property of the city. And so far as the adjacent lot owners were concerned, their interest in the streets, as distinct from that of other citizens, was only as having a possibility of reverter after the public use of the land should cease; and the value of this, if anything, was inappreciable, and could not entitle them to compensation.1

So in Indiana, where the title in fee to streets in cities and villages is vested in the public, it is held that the adjacent land owners are not entitled to the statutory remedy for an assessment of damages in consequence of the street being appropriated to the use of a railroad; and this without regard to the motive-power by which the road is operated. At the same time it is also held that the lot owners may maintain an action at law if, in consequence of the railroad, they are cut off from the ordinary use of the street.2 So in the State of Illinois, in a case where a lot owner had filed a bill in equity to restrain the laying down of the track of a railroad, by consent of the common council, to be operated by steam in one of the streets of Chicago, it was held that the bill could not be maintained; the title to the street being in the city, which might appropriate it to any proper city purpose.3

1 People v. Kerr, 37 Barb. 357; Same case, 27 N. Y. 188. And see Brooklyn Central, &c. R. R. Co. v. Brooklyn City R. R. Co., 33 Barb. 420; Brooklyn & Newtown R. R. Co. v. Coney Island R. R. Co., 35 Barb. 364; New York v. Kerr, 38 Barb. 369; Chapman v. Albany & Schenectady R. R. Co., 10 Barb. 360. Although, in the case of People v. Kerr, the several judges seem generally to have agreed on the principle, as stated in the text, it is not very clear how much importance was attached to the fact that the fee to the street was in the city, or that the decision would have been different if that had not been the case.

2 Protzman v. Indianapolis & Cincinnati R. R. Co., 9 Ind. 467; New Albany & Salem R. R. Co. v. O'Daily, 13 Ind. 353; Same v. Same, 12 Ind. 551.

3 Moses v. Pittsburg, Fort Wayne & Chicago R. R. Co., 21 Ill. 522. We quote from the opinion of Caton, Ch. J.: "By the city charter, the common council is vested with the exclusive control and regulation of the streets of the city, the fee-simple title to which we have already decided is vested in the muni

It is not easy, as is very evident, to trace a clear line of authority running through the various decisions bearing upon the cipal corporation. The city charter also empowers the common council to direct and control the location of railroad tracks within the city. In granting this permission to locate the track in Beach Street, the common council acted under an express power granted by the legislature. So that the defendant has all the right which both the legislature and the common council could give it, to occupy the street with its track. But the complainant assumes higher ground, and claims that any use of the street, even under the authority of the legislature and the common council, which tends to deteriorate the value of his property on the street, is a violation of that fundamental law which forbids private property to be taken for public use without just compensation. This is manifestly an erroneous view of the constitutional guaranty thus invoked. It must necessarily happen that streets will be used for various legitimate purposes, which will, to a greater or less extent, incommode persons residing or doing business upon them, and just to that extent damage their property; and yet such damage is incident to all city property, and for it a party can claim no remedy. The common council may appoint certain localities where hacks and drays shall stand waiting for employment, or where wagons loaded with hay or wood, or other commodities, shall stand waiting for purchasers. This may drive customers away from shops or stores in the vicinity, and yet there is no remedy for the damage. A street is made for the passage of persons and property; and the law cannot define what exclusive means of transportation and passage shall be used. Universal experience shows that this can best be left to the determination of the municipal authorities, who are supposed to be best acquainted with the wants and necessities of the citizens generally. To say that a new mode of passage shall be banished from the streets, no matter how much the general good may require it, simply because streets were not so used in the days of Blackstone, would hardly comport with the advancement and enlightenment of the present age. Steam has but lately taken the place, to any extent, of animal power for land transportation, and for that reason alone shall it be expelled the streets? For the same reason camels must be kept out, though they might be profitably employed. Some fancy horse or timid lady might be frightened by such uncouth objects. Or is the objection not in the motive-power, but because the carriages are larger than were formerly used, and run upon iron, and are confined to a given track in the street? Then street railroads must not be admitted; they have large carriages which run on iron rails, and are confined to a given track. Their momentum is great, and may do damage to ordinary vehicles or foot passengers. Indeed we may suppose or assume that streets occupied by them are not so pleasant for other carriages, or so desirable for residences or business stands, as if not thus occupied. But for this reason the property owners along the street cannot expect to stop such improvements. The convenience of those who live at a greater distance from the centre of a city requires the use of such improvements, and for their benefit the owners of property upon the street must submit to the burden, when the common council determine that the public good requires it. Cars upon street railroads are now generally if not universally propelled by horses, but who can say how long it will be before it will be found safe and profitable to propel them with

appropriation of the ordinary highways and streets to the use of railroads of any grade or species; but a strong inclination is apparent to hold that, when the fee in the public way is taken from the former owner, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see fit afterwards to devote it, in furtherance of the general purpose of the original appropriation; and if this is so, the owner must be held. to be compensated at the time of the original taking for any such possible use; and he takes his chances of that use, or any change in it, proving beneficial or deleterious to any remaining property he may own or business he may be engaged in; and it must also be held that the possibility that the land may, at some future time, revert to him, by the public use ceasing, is too remote and contingent to be considered as property at all.2 At the same time it must be confessed that it is difficult to determine precisely how far some of the decisions made have been governed by the circumstance that the fee was or was not in the public, or, on the other hand, have proceeded on the theory that a railway was only in furtherance of the original purpose of the appropriation, and not steam, or some other power besides horses? Should we say that this road should be enjoined, we could advance no reason for it which would not apply with equal force to street railroads; so that consistency would require that we should stop all. Nor would the evil which would result from the rule we must lay down stop here. We must prohibit every use of a street which discommodes those who reside or do business upon it, because their property will else be damaged.. This question has been presented in other States, and in some instances, where the public have only an easement in the street, and the owner of the adjoining property still holds the fee in the street, it has been sustained; but the weight of authority, and certainly, in our apprehension, all sound reasoning, is the other way."

All the cases from which we have quoted assume that the use of the street by the railroad company is still a public use; and probably it would not be held that an appropriation of a street, or of any part of it, by an individual or company, for bis or their own private use, unconnected with any accommodation of the public, was consistent with the purpose for which it was originally acquired. See Brown v. Duplessis, 14 La. An. 842; Green v. Portland, 32 Me. 431.

1 On this subject see, in addition to the other cases cited, West v. Bancroft, 32 Vt. 367; Kelsey v. King, 32 Barb. 410; Ohio & Lexington R. R. Co. v. Applegate, 8 Dana, 289. When, however, land is taken or dedicated specifically for a street, it would seem, although the fee is taken, it is taken for the restricted use only; that is to say, for such uses as streets in cities are commonly put to.

2 As to whether there is such possibility of reverter, see Heyward v. Mayor, &c. of New York, 7 N. Y. 314; People v. Kerr, 27 N. Y. 211, per Wright, J.; Plitt v. Cox, 43 Penn. St. 486.

to be regarded as the imposition of any new burden, even where an easement only was originally taken.1

Perhaps the true distinction in these cases relates, not to the motive-power of the railway, or to the question whether the fee simple or a mere easement was taken in the original appropriation, but depends upon the question whether the railway constitutes a thoroughfare, or on the other hand is a mere local convenience. When land is taken or dedicated for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run upon a grooved track; and the preparation of important streets in large cities for their use is not only a frequent necessity, which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving. The appropriation of a country highway for the purposes of a railway, on the other hand, is neither usual nor often important; and it cannot with any justice be regarded as within the contemplation of the parties when

1 There is great difficulty, as it seems to us, in supporting important distinctions upon the fact that the fee was originally taken for the use of the public, instead of a mere easement. If the fee is appropriated or dedicated, it is for a particular use only; and it is a conditional fee, -a fee on condition that the land continue to be occupied for that use. The practical difference in the cases is, that when the fee is taken, the possession of the original owner is excluded; and in the case of city streets where there is occasion to devote them to many other purposes besides those of passage, but nevertheless not inconsistent, such as for the laying of water and gas pipes, and the construction of sewers, this exclusion of any private right of occupation is important, and will sometimes save controversies and litigation. But to say that when a man has declared a dedication for a particular use, under a statute which makes a dedication the gift of a fee, he thereby makes it liable to be appropriated to other purposes, when the same could not be done if a perpetual easement had been dedicated, seems to be basing important distinctions upon a difference which after all is more technical than real, and which in any view does not affect the distinction made. The same reasoning which has sustained the legislature in authorizing a railroad track to be laid down in a city street would support its action in authorizing it to be made into a canal; and the purpose of the original dedication or appropriation would thereby be entirely defeated. Is it not more consistent with established rules to hold that a dedication or appropriation to one purpose confines the use to that purpose; and when it is taken for any other, the original owner has not been compensated for the injury he may sustain in consequence, and is therefore entitled to it now?

the highway is first established. And if this is so, it is clear that the owner cannot be considered as compensated for the new use at the time of the original appropriation.

Although the regulation of a navigable stream will give to the persons incidentally affected no right to compensation, yet if the stream is diverted from its natural course, so that those entitled to its benefits are prevented from making use of it as before, the deprivation of this right is a taking which entitles them to compensation, notwithstanding the taking may be for the purpose of creating another and more valuable channel of navigation. The owners of land over which such a stream flows, although they do not own the flowing water itself, yet have a property in the use of that water as it flows past them, for the purpose of producing mechan- . ical power, or for any of the other purposes for which they can make it available, without depriving those below them of the like use, or encroaching upon the rights of those above; and this prop erty is equally protected with any of a more tangible character.2

What Interest in Land can be taken under the Right of Eminent Domain.

Where land is appropriated to the public use under the right of eminent domain, and against the will of the owner, we have seen. how careful the law is to limit the public authorities to their precise needs, and not to allow the dispossession of the owner from any portion of his freehold which the public use does not require. This must be so on the general principle that the right being based on necessity cannot be any broader than the necessity which supports it. For the same reason, it would seem that, in respect to the land actually taken, if there can be any conjoint occupation of the owner and the public, the former should not be altogether excluded, but should be allowed to occupy for his private purposes to any extent not inconsistent with the public use. As a general rule, the laws for the exercise of the right of eminent domain do not assume to go further than to appropriate the use, and the title

1 People v. Canal Appraisers, 13 Wend. 355. And see Hatch v. Vermont Central R. R. Co., 25 Vt. 49; Bellinger v. New York Central R. R. Co., 23 N. Y. 42; Gardner v. Newburg, 2 Johns. Ch. 162.

2 Morgan v. King, 18 Barb. 284; Same case, 35 N. Y. 454; Gardner v. Newburg, 2 Johns. Ch. 162.

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