Palmer v. Electric Co. purpose without the consent of the abutting proprietors. And in view of the decision of the Court of Appeals in Eels' case, I am unwilling to adopt or apply the rule which attempts to distinguish between the use of the streets for different purposes. In my judgment the thing that is unlawful is the erection of the poles and wires without the land owner's consent or the acquisition of his title, and it is of no consequence to what use the pole and wire are to be put after they are erected. While I yield to the force of the decision in Whitcher's case, I think any attempt to extend urban easements outside of incorporated villages will lead to confusion and introduce into the administration of the law a rule affecting property which will render uncertain the rights of every owner of lands abutting on a highway. While these rights are not of great pecuniary value, they are important to the enjoyment of property, and there has been as yet no reason suggested why they should be handed over to the electric corporations without compensation. The judgment should be affirmed, with costs. Judgment affirmed, with costs. NOTE.-See note to Thouron v. Schuylkill Elec. Ry. Co., post. State v. Railroad Co. and another. THE STATE, EMILY W. ROEBLING, Prosecutrix, Plaintiff in Error, v. TRENTON PASSENGER RAILROAD COMPANY (CONSOLIDATED), AND THE BOARD OF PUBLIC WORKS OF THE CITY OF TRENTON, Defendants in Error. New Jersey Court of Errors and Appeals, June 15, 1896. (58 N. J. 666.) ELECTRIC STREET RAILWAY.-RIGHTS OF ABUTTING OWNERS.-CONSTITUTIONAL LAW. The construction and maintenance of a trolley railway, with the necessary posts and wires, in a highway, the land to the center of which belongs to the abutting owner subject to the public easement, does not constitute a new servitude for which the abutting owner is entitled to compensation. A statute which merely authorizes a street railway company to substitute electricity for horses as its motive power, upon first obtaining municipal authority; and empowers the municipal authorities to permit the maintenance in streets of the necessary poles and wires for such purposes, held, to relate only to the public easement, leaving the companies to obtain from land owners such private rights or property as they may require, and not to create an additional easement without compensation to the abutting owner; and not to be unconstitutional. For any injury due to obstruction of the easements of light, air or access to his property or to vibrations caused by running heavy cars at great speed, the abutting owner has his remedy at law and should be remitted thereto. APPEAL from judgment of Supreme Court in favor of defendant, upon a writ of certiorari to determine the validity of an ordinance. Facts stated in opinion. Charles E. Gummere, and William M. Lanning for plaintiff in error. Joseph Coult and James Buchanan, for defendants in error. State v. Railroad Co. and another. DEPUE, J.: This writ brings up a judgment of the Supreme Court sustaining an ordinance entitled "An ordinance to authorize the Trenton Passenger Railway Company (Consolidated), to use electric motors as the propelling power of its cars through certain streets and avenues in the city of Trenton, and to provide for the erection of poles and the stringing of wires thereon to supply electricity to the motors," passed by the board of public works of the city of Trenton February 8th, 1894, and approved by the mayor February 12th, 1894. The ordinance was passed in virtue of the act of 1893 (Pamph. L. p. 241; Gen. Stat. p. 3210). The first section of that act authorizes street or horse railroad companies to use electric motors as the propelling power of their cars, instead of horses, provided consent of the municipal authorities be first obtained. The second section empowers the municipal authorities to authorize the use of poles to be located in the public streets, with wires, etc., for the purpose of supplying the motors with electricity, and to prescribe the manner in which, and the places where, such poles should be located. The ordinance is, in all respects, in compliance with this statute, so far as is material to this case, and is in conformity with the powers of the city government to regulate the use of public streets. The prosecutrix is the owner of a lot on the southerly side of West State street, between Warren and Calhoun streets. Her title extends to the middle line of the street, subject to an easement in the public for the purposes of a public highway. The reasons filed for setting aside this ordinance are: First. Because the erection of poles and the stringing of wires thereon upon the lands of the prosecutrix, in West State street, in the city of Trenton, for the purpose of supplying electricity to the motors to be used by the Trenton Passenger Railway Company (Consolidated), in State v. Railroad Co. and another. propelling their cars over and along their railroad in said city, without the consent of the said prosecutrix, and without payment to her therefor, is in violation of the Constitution of the State of New Jersey, in that it is a taking of private property for public use by a private corporation without compensation first made to said prosecutrix, and therefore an ordinance authorizing the erection of such poles, and the stringing of wires thereon, for such purpose, without providing for compensation for land taken, is illegal and void. Second. Because the construction and operation of an electric railroad in the public streets of Trenton, upon the lands of the prosecutrix therein, without her consent, and without payment to her therefor, is in violation of the Constitution of the State of New Jersey, in that it is a taking of private property for public use by a private corporation without compensation first made to the said prosecutrix, and, therefore, an ordinance authorizing the construction and operation of such a railroad, without providing for compensation for land taken, is illegal and void. Third. Because the said ordinance is unreasonable, so far as it authorizes and permits the construction and operation of a double tracked electric railway, to be operated by what is known as the trolley system, upon West State street, between Warren and Calhoun streets, in the city of Trenton. The ordinance, in prescribing the places in which the company's poles should be located, fixed the location of two of its poles on the sidewalk in front of the property of the prosecutrix, just inside of the curb line, and the company has erected these two poles at the places indicated. The evidence shows that the cars used by the company weigh seven and one-half tons, and are thirty feet in length, and that ordinary horse cars weigh one and onehalf tons, and are fourteen feet in length, and that the speed with which the company runs its cars in the section State v. Railroad Co. and another. of the street on which the property of the prosecutrix is located is from seven and one-half to seventeen miles per hour, with a mean average speed, on the forty-six trips observed, of twelve miles per hour. There is also evidence in the depositions that by reason of the weight of the cars, and the speed at which they are run, they occasion, at times, vibrations to the extent of rattling the windows in the dwellings fronting on the street. The prosecutrix's standing in this proceeding is that of the owner of property complaining of an invasion of her property rights. The ordinance being in compliance with the statute, the question is whether the Act of 1893 is within the power of the Legislature. In considering this question it must be admitted, at the outset, that the transmission of passengers with increased speed and greater comfort is a great public benefit. This is equally true of the lines of railroads that traverse our State and penetrate into every section, and of the diversion of waters to create waterways for carrying freight, or to supply water for use in the large cities and towns. It is also conceded that the erection of poles with wires strung thereon, in the present state of the 'sciences, is necessary to accomplish the purposes contemplated by this legislative provision. But no considerations of public advantage should be permitted to predominate over the rights of private property, which, by a constitutional inhibition, cannot be taken for a public use without compensation. As was said by Chancellor GREEN in Hinchman v. Paterson Horse Railroad Co., 2 C. E. Gr. 75, 80: "Nothing can be claimed on the ground that city railroads are a great public convenience and benefit; if they are so, the public can afford to pay for it; that is certainly no reason why individual property should be taken for public use." This constitutional provision has uniformly been liberally construed for the protection of private property. Not only an actual taking, but also the destruction of private |