upon between said corporation and the General Council of the said city of Louisville."

Subsequent sections grant to the corporation, among other privileges, the right to connect its track with that of any other railroad terminating in the city of Louisville, and to give to any shipper along its route the right to side-tracks and switches, upon such terms as may be agreed upon between him and the transfer company. A difference arose between it and the city as to the location of the road, and in the compromise it was agreed, among other things, that the road, in crossing First, Second and Third streets should be so elevated as to permit vehicles to pass under it. To do this it became necessary to build an elevated railway along the Ohio river front of the city, and the company being about to do this, the appellees, who are abutting lot-owners, brought this action to enjoin it from either constructing or operating such a road along and over Water street, from the middle line of First street to the middle line of Third street, upon these grounds: First, that no legislative sauction had been given for the building of an elevated railway; second, that the appellants owned the fee to the center of the street adjoining their lots, subject only to the easement of the public in it as a street, and that any legislative grant of the right of way over it to the railway company, without providing compensation therefor, was in violation of the constitutional provis. ion as to taking private property for public use; third, that aside from the ownership of the soil, they, as abutting lot-owners, had the right to the unobstructed use of the street for travel, and for the purpose of ingress and egress, to receive light and air thereby, and to enjoy their property free from any inconveniences or injury special to them-such as the jarring or substantial injury to their buildings; the deprivation of light or air; the throwing of smoke, sparks or cinders into and upon the houses already upon some of the lots, or those which might be built upon the vacant ones; the disturbance to the occupants arising from the noise of passing trains, and the invasion of all privacy by reason of their proximity; and that all these rights would be illegally invaded and destroyed by the building of the road; and that injunction is the appropriate remedy for their protection.

The word "elevated" does not occur in the charter. It authorizes the company to construct and operate "a railroad" merely. It is therefore insisted, that considering the time when the charter was granted, it is improbable that the Legislature intended to authorize the construction of any kind of a railway save a surface one; that this intention is manifest from the charter provisions as to side tracks and switches, and that corporation grants must be construed with all the strictness compatible with their execution. It appears however that only a portion of appellee's road is "elevated;" and from the first introduction of railroads, portions of them have been elevated by reason of the topography of the country or liability to floods or the grades desirable in cities for the convenience and safety of the public. Certainly a company chartered to build a "railroad" merely would have the right to elevate it wherever the character of the country made it either convenient or essential; and the evidence shows that if this road was a surface one from First to Tenth street, it would frequently be submerged by the floods of the Ohio river.

After the compromise was effected between the city and the company, and on April 1, 1882, the Legislature amended the charter in various respects; and this amendment refers to the ordinances of the city of Louisville, which among other things required the

road to be elevated at the street crossings. It is true that it merely provides that any provisions in them in conflict with the amendment shall be void; but we must presume that it was enacted with the fact in view that a portion of the road would have to be elevated. In interpreting and giving effect to a statute, the necessity, occasion, history of the times, and probable object of it are to be considered; and while this amendment did not re-enact the city ordinances relative to the elevation of the road at the street crossings, yet it recognized the right of the company to build a road, which the ordinances thus referred to required to be elevated, and which the city council, by virtue of section 3, supra, had the power to enact.

Even if the power to build the road was questionable prior to this additional legislation, yet this legislative recognition of the right placed it beyond doubt. It must be presumed that the appellants own the fee in the street, subject to the use by the public; and the question presents itself whether the easement existing by virtue of the dedication of the street is of the same nature as that granted to the company by the Legislature. Its power to appropriate a part of the common highway to the purposes of a railroad, without making provision for compensation to the owner of the fee, has been a fruitful subject of judicial conflict. It has been urged that it is an additional burden-a new and distinct servitude-upon the estate, inconsistent with the original dedication, and cannot therefore be imposed without compensation to the owner of the fee. Upon the other hand, it is said that it is consistent with the dedication; that there is an identity of uses; and that the use of a part of a street by a railway does not exceed the limit of the easement already belonging to the public. This conflict of opinion merely arises from a difference of view as to [the uses contemplated by the dedication of a street to public use.

Upon the one side cases may be found holding that because the term "street" had acquired its meaning before railroads were in existence, therefore it cannot be presumed that this character of use was intended in the dedication; and if allowed, that the limit of the easement is overstepped, and the private property of the owner of the fee taken for public use, which unless compensation be afforded, is inhibited by the Constitution. In conflict with this view, many cases may be found which hold that the dedication of a street to public use contemplates no particular mode of travel; that it embraces not only those then existing. but any that may spring up in this age of invention, and with advanced civilization; and that a railroad, being but a new mode of travel, is consistent with the uses contemplated by the dedication, and does not overstep the limits of the easement already in existence. In determining the proper uses of a highway it seems to us to be immaterial whether the abutting owner has the fee subject to the easement or The public right embraces all modes of travel consistent with the intended use. If compensation has been made for the easement, the subsequent appropriation to another mode of use, within the limit of the primary purpose, or one of a like kind, certainly should not require further compensation. In this age of advancement a rule confining it to a precise mode of use would be unreasonable. It has even been held that there is no new taking, when under legislative sanction a plank road or a canal is converted into a highway or a railroad; and some jurists have contended that when private property has been once taken for public use, and compensation made, the Legislature may apply it to any public use, irrespective of the special purpose for which it was taken. This view is based upon the idea, that in practice at

not.

least, whether the fee or an easement merely is acquired, the full value of the land taken is given as compensation; but this doctrine is fraught with danger to private right, which although it may be that of the humblest citizen, it should be the pride of the judiciary to uphold; and it seems to us that where a grant has been made for a specific use, that the subject of it should not be used for a foreign purpose, without a new legal taking, or the consent of the party from whom it was derived, but that it may be applied to any new mode of use tending to the primary or general purpose.

It was said by the Supreme Court in the case of Barney v. Keokuk, 94 U. S. 340: "On the general question as to the rights of the public in a city street, we cannot see any material difference in principle, with regard to the extent of those rights, whether the fee is in the public or in the adjacent land-owner, or in some third person. In either case the street is legally open, and free for the public passage, and for such public uses as are necessary in a city, and do not prevent its use as a thoroughfare, such as the laying of water-pipes, gas-pipes, etc."

Pierce on Railroads, 234, says: "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 of the 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 the 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 out 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 writer cites numerous cases in support of the text.

The design of a railroad is to facilitate travel. It therefore subserves the object of a street dedication instead of destroying it. It may therefore under legislative sanction have a joint occupancy of a street with other modes of travel having the same end in view; but it cannot occupy or use it to the unreasonable exclusion or obstruction of such other modes. The limitation upon the public right is that the appropriation of the street must not be inconsistent with the end for which it was established. Whether the abutting lot-owner owns the fee in the street subject to the public use, or does not, he, as such adjacent proprietor, has however a peculiar private right in the street which attaches to his lot. He has a peculiar use in the street, as appurtenant to his tenement, in order that he may enjoy it. This right is as much his property as the lot itself. He can claim no damage by reason of mere inconvenience, or a consequential decline in value of property or rents arising from the

repair of the street; but there can be no such exclusive appropriation of it, even under legislative authority, as to deprive him of its reasonable use. He is entitled to its reasonable use for all the ordinary modes of passage. This is an easement attaching to his adjoining lot-an incident of his title to it, and he cannot be deprived of it without compensation. He however holds his property subject to the appropriation of the street by the public to such means of facilitating travel and commerce as will most redound to the public good; and it is only when this appropriation becomes destructive of the purposes for which the street was established, and he is deprived of its reasonable use for such purposes, that he can complain. Indeed the right under legislative authority to permit the construction and operation of a railroad by steam along or upon a street is not now an open question in this State, however much conflict of authority may exist elsewhere; and this without regard to whether the fee subject to the public use is in the adjoining owner or not. Beginning with the case of the Lexington & O. R. Co. v. Applegate, 8 Dana, 289, followed with the cases of Wolfe v. Covington & L. R. Co., 15 B. Mon. 409; Louisville & F. R. Co. v. Brown, 17 id. 772; Newport & Cincinnati Bridge Co. v. Foote, 9 Bush, 264; Cosby v. Owensboro & R. R. Co., 10 id. 288; Elizabethtown, L. & B. S. R. Co. v. Combs, id. 382; and Jeffersonville, M. & I. R. Co. v. Esterle, 13 id. 675—this doctrine has been repeatedly announced, and must now be regarded as firmly established in Kentucky, and we think it is supported by reason and public necessity, while at the same time individual right is pre served.

It follows that the construction of a railroad along a street is not per se an encroachment upon the individual right of the abutting lot-owner, and whether he can complain depends, not upon the fact of its existence, but the manner of its construction and its operation. If he is thereby deprived of its reasonable use, he may appeal to the courts for relief; but if he is merely inconvenienced thereby, or suffers some remote consequential injury, is is damnum absque inju

ria.

The structure in this case, at the point where it is sought to enjoin its construction, will be about 13% feet high, supported by iron pillars 16 inches in diameter, and from 25 to 30 feet apart; and where they are in the street there is ample roadway upon each side of them, while where they are in the sidewalk they leave ample room for passage, and we fail to see that there is any unreasonable obstruction or exclusive appropriation of the street, while the character of the proposed structure is such that it is not likely to materially interfere with the passage of either light or air.

Before leaving this branch of the case it is proper to suggest that in the cases of the Louisville & F. R. Co. v. Brown, supra; Newport & Cincinnati Bridge Co. v. Foote, supra; and Cosby v. Owensboro & R. R. Co., supra, the railroad was elevated either by a solid wall or an embankment, or was pro tanto an exclusive appropriation of the street; but as it was not unreasonably obstructed, the complaint of the abutting lotowners was not sustained. The road, the construction of which is now sought to be enjoined by reason of its manner of elevation, will afford less obstruction than did the building of the roads in those cases.

It is urged however that it will be specifically injurious to the adjacent lot-owners, and in a substantial degree, because it will jar their buildings, weaken their foundations, throw sparks, smoke and cinders into them by reason of their proximity; destroy their privacy, and render them untenantable; and that these substantial injuries peculiar to them, and to which the general public are not liable, authorize the

interposition of preventive equity. It is true that it is not the amount of pecuniary injury which authorizes such relief. If the injury goes to the substance of the right, and is of such a character that reasonable redress cannot be had at law, the chancellor will, with the arm of equity, stay the impending wrong. Whether any special and substantial injury will result to the adjoining owners in this instance is however as yet a mere matter of speculation, and if any, its character and extent cannot be ascertained. If such should accrue, its extent can be much better estimated after the road is in operation, and at most it would be a matter of mere damage for which the law affords an adequate remedy. Undoubtedly if the structure shall be so located as to unreasonably

obstruct the abutting lot-owner's

means of egress and ingress from and to his lot, or if he suffers substantial injury by having smoke, sparks or cinders thrown into his house, or its walls be cracked by the movement of heavy trains, he would be entitled to recover for damages directly resulting from such causes. This is because a private right would then be invaded, and a direct substantial damage sustained. Jefferson, M. & I. R. Co. v. Esterle, supra, and Elizabethtown, etc., R. Co. v. Combs, supra. It was said however in the case of Lexington & O. R. Co. v. Applegate, supra: “But both public policy and a long series of adjudged cases require that a public improvement so beneficent in its general operations and results, and more especially when, as in this case, sanctioned by the Legislature and the representatives of the local public, should not be destroyed or suspended by the injunction of a chancellor, unless strong reasons for doing it be conclusively manifested." This reason applies with peculiar force in this instance. The proposed work is one likely to redound largely to the public interest, and that of a commercial metropolis. The road will connect the railroads coming into the city upon one side with those reaching it upon the other, thus supplying, as is shown by the testimony, a now much-needed connection; while upon the other hand, it is as yet a matter of conjecture what injury, if any, will accrue to the lot-owner, and if any, he is not remediless. The law of course will not override individual right in order that a public benefit may accrue; but under such circumstances the facts should be clearly shown, and the ground made manifest before the chancellor should interpose. Judgment affirmed.

CONSTITUTIONAL LAW-INTER-STATE COM

MERCE-TELEGRAPHIC MESSAGES. UNITED STATES SUPREME COURT, MAY 27, 1887.

WESTERN UNION TEL. Co. v. PENDLETON.* Rev. Stat. Ind. 1881, § 4176, prescribing the order in which telegraphic dispatches shall be sent, and section 4178, requiring the delivery, by messenger, of such dispatches, if the person to whom they are addressed, or their agents, reside within one mile of the station, or within the city or town in which it is located, are invalid with respect to dispatches to be delivered in other States, as an interference with inter-State commerce.

N error to the Supreme Court of the State of Indi

IN

aua.

The statute of Indiana declares that "every electric telegraph company, with a line of wires wholly or partly in this State, and engaged in telegraphing for the public, shall during the usual office hours, receive dispatches, whether from other telegraphing lines or *7 Supreme Court Reporter, 1126.

from individuals; and on payment or tender of the usual charge, according to the regulations of such company, shall transmit the same with impartiality and good faith, and in the order of time in which they are received, under penalty, in case of failure to transmit, or if postponed out of such order, of $100, to be recovered by the person whose dispatch is neglected or postponed; provided however that arrangements may be made with the publishers of newspapers for the transmission of intelligence of general and public interest out of its order, and that communications for and from officers of justice shall take precedence of all others" (§ 4176, Rev. Stat. Ind. 1881); and that "such companies shall deliver all dispatches, by messenger, to the persons to whom the same are addressed, or to their agents, on the payment of any charges due for the same; provided such persons or agents reside within one mile of the telegraphic station, or within the city or town in which such station is " (§ 4178, id).

The present action is brought by William Pendleton, the plaintiff below, to recover of the Western Union Telegraph Company the penalty of $100 prescribed by the above statute, for failing to deliver at Ottumwa, in Iowa, a message received by it in Indiana, for transmission to that place. The complaint, as finally amended, alleges that the defendant below, the Western Union Telegraph Company, is a corporation organized and subsisting under the laws of Indiana, with a line of wires from Shelbyville, in that State, to Ottumwa, in Iowa; that on the fourteenth of April, 1883, at thirty-five minutes past five o'clock in the afternoon, at which time the company was engaged in telegraphing for the public, the plaintiff delivered to its agent, at its office in Shelbyville, the following telegram for transmission to its office in Ottumwa, viz:

"APRIL 14, 1883.

"To Rosa Pendleton, care James Harker, near City Grave-Yard, Ottumwa, Iowa: Have you shipped things? If not, don't ship. Answer quick.

WM. PENDLETON." That upon its delivery, the plaintiff paid the agent sixty cents, being the amount of the charge required for its transmission from Shelbyville to Ottumwa; that without any fault or interference on his part, the company, after transmitting the message to Ottumwa, where it was received at half past seven in the afternoon of that day, failed to deliver it either to Rosa Pendleton or to James Harker, whereby the plaintiff sustained damage and the defendant became liable for $100, under the statute of Indiana, for which sum plaintiff demands judgment.

To this complaint the company answered, admitting the receipt of the telegram as alleged, and setting up that it transmitted the message with impartiality and good faith, in the order of time in which it was received, and without delay, to its office in Ottumwa, Iowa, where it was received, as alleged, at half past seven of that day; that James Harker, to whose care the message was directed, lived more than one mile from the telegraph station at Ottumwa; that in accordance with the usual custom of the office, the message was, without delay, placed in the post-office of that town, with proper stamps thereon, and duly addressed; and that the telegram was received by the person to whom it was addressed on the following morning, April 15, 1883, at about nine o'clock. The answer further set forth that the duties and liabilities of telegraph companies in Iowa, and the transmission and delivery of the telegrams within the State, are regulated by a special statute of that State, which is as follows, viz.: Any person employed in transmitting messages by telegraph must do so without unreasonable delay, and any one who willfully fails thus to transmit them, or who intentionally transmits

a message erroneously, or makes known the contents of any message sent or received to any person except him to whom it is addressed, or to his agent or attorney, is guilty of a misdemeanor. The proprietor of a telegraph is liable for all mistakes in transmitting messages made by any person in his employment, and for all damages resulting from a failure to perform any other duties required by law." That by that statute the defendant was not required to deliver telegrams by messenger to the persons to whom they were addressed. That in the city of Ottumwa it had established a certain district within which it delivered telegrams by messenger, and that on the receipt of the telegram in question at Ottumwa, it was ascertained that Harker, to whom it was addressed, did not reside within the delivery district, but outside of it, and more than one mile from the defendant's office, and that in accordance with the custom and usage of the office, and in order to facilitate the delivery of the message, a copy of the telegram was promptly placed in the postoffice at Ottumwa, with proper address, and delivered as stated above.

jects of commerce the regulation of Congress is exclusive, and indicated on what subjects the States may exercise a concurrent authority until Congress intervenes and assumes control. Cooley v. Board of Wardens of the Port of Philadelphia, 12 How. 299; Gilman v. Philadelphia, 3 Wall. 713; Crandall v. Nevada, 6 id. 35; Welton v. State of Missouri, 91 U. S. 275; Henderson v. Mayor of New York, 92 id. 259; Inman S. S. Cov. Tinker, 94 id. 238; Hall v. De Cuir, 95 id. 485; County of Mobile v. Kimball, 102 id. 691; Transportation Co. v. Parkersburgh, 107 id. 691; Gloucester Ferry Co. v. Pennsylvania, 114 id. 196; Wabash St. L. & P. Ry. Co. v. Illinois, 118 id. 557; and Robbins v. Shelby TaxingDist., 120 id. 489, 493. But with reference to the new species of commerce, consisting of intercourse by telegraphic messages, this court has only in two cases been called upon to inquire into the power of Congress and of the State over the subject. In Pensacola Tel. Co. W. U. Tel. Co., 96 U. S. 1, this court had before it the act of Congress of July 24, 1866 (14 St. 221), "to aid in the construction of telegraph lines, and to secure the use of the same for postal, military and other purposes;" and it is held that the act was constitutional so far as it declared that the erection of telegraph

J. E. McDonald, John M. Butler and Augustus L. Mason, for plaintiff in error.

No appearance for defendant in error.

FIELD, J. The contention of the Western Union Telegraph Company is that the law of Indiana is in conflict with the clause of the Constitution vesting in Congress the power to regulate commerce among the States.

In Telegraph Co. v. Texas, 105 U. S. 460, it was decided by this court that intercourse by the telegraph between the States is inter-State commerce. Its language was. "A telegraph company occupies the same relation to commerce as a carrier of messages, that a railroad company does as a carrier of goods. Both companies are instruments of commerce, and their business is commerce itself. They do their transportation in different ways, and their liabilities are in some respects different, but they are both indispensable to those engaged to any considerable extent in commercial pursuits."'

Although intercourse by telegraphic messages between the States is thus held to be inter-State commerce, it differs in material particulars from that portion of commerce with foreign countries and between the States which consists in the carriage of persons and the transportation and exchange of commodities, upon which we have been so often called to pass. It differs not only in the subjects which it transmits, but in the means of transmission. Other commerce deals only with persons, or with visible and tangible things. But the telegraph transports nothing visible and tangible; it carries only ideas, wishes, orders and intelligence. Other commerce requires the constant attention and supervision of the carrier for the safety of the persons and property carried. The message of the telegraph passes at once beyond the control of the sender, and reaches the office to which it is sent instantaneously. It is plain, from these essentially different characteristics, that the regulations suitable for one of these kinds of commerce would be entirely inapplicable to the other.

In the consideration of numerous cases, in which questions have arisen relating to ordinary commerce with foreign countries and between the States, the court has reached certain conclusions as to what sub

to all who accepted its terms and conditions, and that a telegraph company of one State accepting them, could not be excluded by another State from prosecuting its business within her jurisdiction. In Telegraph Co. v. Texas, 105 U. S. 460, from the opinion in which we have quoted above, it was held that a statute of Texas imposing a tax upon every message transmitted by a telegraph company doing business within its limits, so far as it operated on messages sent out of the State, was a regulation of foreign and inter-State commerce, and therefore beyond the power of the State.

In these cases the supreme authority of Congress over the subject of commerce by the telegraph with foreign countries or among the States is affirmed whenever that body chooses to exert its power; and it is also held that the States can impose no impediments to the freedom of that commerce. In conformity with these views, the attempted regulation by Indiana of the mode in which messages sent by telegraph companies doing business within her limits shall be delivered in other States cannot be upheld. It is an impediment to the freedom of that form of inter-State commerce, which is as much beyond the power of Indiana to interpose as the imposition of a tax by the State of Texas upon every message transmitted by a telegraph company within her limits to other States was beyond her power. Whatever authority the State may possess over the transmission and delivery of messages by telegraph companies within her limits, it does not extend to the delivery of messages in other States.

The object of vesting the power to regulate commerce in Congress was to secure, with reference to its subjects, uniform regulations, where such uniformity is practicable, against conflicting State legislation. Such conflicting legislation would inevitably follow with reference to telegraphic communications between citizens of different States, if each State was vested with power to control them beyond its own limits. The manner and order of the delivery of telegrams, as well as of their transmission, would vary according to the judgment of each State. Indiana as seen by its law given above, has provided that communications for or from officers of justice shall take precedence, and that arrangements may be made with publishers of newspapers for the transmission of intelligence of general and public interest out of its order; but that all other messages shall be transmitted in the order in which they are received; and punishes