[Perry v. New Orleans, Mobile & Chattanooga Railroad Company.] degree, be left to the wisdom and discretion of the legislature. When it is exercised, one right or privilege of the public is taken away, or impaired, that another, considered of greater value, may be conferred and fostered." Time, the unerring test in the utilization of new discoveries, has demonstrated that long and connecting lines of railroad greatly facilitate and cheapen transportation. To construct and operate such long and connecting lines, it is necessary that cities, towns, and navigable watercourses shall be traversed by them. The city is traversed, necessarily, by and through its streets; and in laying a railroad track along a public street, the use and comfort of the latter, as a highway or thoroughfare, must necessarily be somewhat impaired. When this is done under proper authority, it is but the assertion of so much of the sovereign power and discretion, by which one right or easement is abridged in its enjoyment, that the public may have another, deemed to be of greater value. The rights of property in the public streets of a city are of two classes. One of the classes embraces all those cases where, by a simple act of dedication, without any conveyance of title, the owner of the freehold sets off a part of the land as a public highway. When this is the case, neither the government, the municipality, nor the public, acquires any other interest than that of a mere easement. The ultimate fee remains unaffected by such dedication. When a street, thus dedicated, is improperly obstructed, or perverted to a use other than that for which it was dedicated, the owner of the fee has left in him sufficient title or right to prevent or redress the wrong; and for this purpose, the general rule is, that the owner of the attingent property is the owner of the ultimate fee, extending to the centre of the street.-See Cincinnati v. White, 6 Peters, 431; Dillon on Corp. §§ 493, 495, 496, 500, 524. "When, however, the fee, or original title, passes from the original proprietor, as in some of the States it is declared it shall in statutory dedications, and in land acquired for streets and public purposes, by the exercise of the right of eminent domain, such proprietor, or the adjoining owner, cannot maintain an action for injuries to the soil, or ejectment; but he still has his remedy for any special injury to his rights by unauthorized acts of others."-Dillon on Corp. $525. But, in each of these classes of cases, if the sovereign power grant the right to construct a railroad track and run trains on or over such public street, this is a legitimate exercise of the police power inherent in the State, and the [Perry v. New Orleans, Mobile & Chattanooga Railroad Company.] changed use of the street ceases to be a public nuisance of which any one can complain.-See an able discussion of this subject in Barney v. City of Keokuk, Sup. Ct. U. S., 4 Otto, 324. When, however, under the first named of the above classes, the ultimate fee remains in the land proprietor, the municipal government cannot confer on a railroad corporation the right to convert a public street into a road-bed for its own use, unless the charter of such municipality, or some other legislative authority, confer on it the power to do so. Such police power can on y be exercised by the sovereignty, or under its authority. We say nothing, at present, of the right of the railroad corporation, under the doctrine of eminent domain, to have a street condemned to its use, making compensation.-See James River & K. Co. v. Anderson, 12 Leigh, 278; Inhabitants of Springfield v. Conn. River R. R. Co., 4 Cush. 63; Tate v. Ohio & Miss. R. R. Co., 7 Ind. 479. The bill in the present case was filed in favor of certain persons, alleged to be the owners of property bordering on Commerce street, in the city of Mobile, and seeks to enjoin the laying of the track of defendant's railroad along said street, between Church street, on the south, and Beauregard street, north. The bill alleges facts, tending to show that the use of the street as a thoroughfare will be much obstructed by the presence of the railroad and its trains; that Commerce street, between the named points, is the most important commercial street in the city; that the rents of stores on the street will suffer shrinkage by the construction and use of the railroad; and that such public nuisance will work a private injury to the complainants. Many facts are averred, tending to show these probable results. Among the statements of the bill are the following: "That Commerce street is an old street, opened more than thirty years ago, by the owners of lands over and through which it passes, for their own convenience; and was by them permitted to be used by other citizens and travellers, as a public highway, and nas ever since continued, and now is such public street or thoroughfare; and that said complainants, and all other owners of lands fronting on said street, own the lands in front of their buildings, to the centre of said street, subject only to the public easement, or right of way over it, acquired as before stated and the city has never been the owner of the fee, or soil, of any part of said street. * * * * * * "Complainants further show, that said railroad company have made no application to them, or to the other owners of the property on said street, for permission or authority to use the same for their said road, but are proceeding, as com [Perry v. New Orleans, Mobile & Chattanooga Railroad Company.] plainants are informed, under a pretended ordinance of the corporate authorities of the city of Mobile, adopted," &c. The bill charges the procurement of an ordinance of the city, granting to the railroad "a perpetual franchise and monopoly in a public street, for the exclusive use and private interest of the corporation, to the great damage and injury of complainants, and all other owners on and in said street, and without making to them any compensation therefor." A copy of the city ordinance is attached to the bill as an exhibit, which does grant the power to construct the railroad on and along Commerce Street. It will be seen from the averments of the bill, given above, if the facts be truly stated, Commerce street was established by dedication, and that it belongs to the class of which the ultimate fee resides in the co-terminous land proprietors. We have looked into the act "To incorporate the city of Mobile," approved February 2, 1866-Pamph. Acts, 202. Sections 1, 30 and 94 bear on the question of the powers of the municipal government. We find no express provision in the charter, authorizing the city authorities to grant to the railroad company the right to lay the track of its road on the streets of Mobile. We have shown, above, that such power can not be exercised by the city government, unless it is conferred upon it by the legislature. The present case was finally tried on demurrer to the bill, which is an admission of the truth of every averment that is well pleaded. have thus presented to us a prima facie case of public nuisance, attempted to be erected in a street, the fee of which is in private individuals, who complain and show that such structure will do them an individual injury; and the authority shown for such structure is an ordinance of the city, which its authorities had no power to enact. The demurrer to the bill should not have been sustained, but the defendant should have been put to its defense. If, as supposed by the chancellor, the property of Commerce street was in the city, or out of the landed proprietors, then the city ordinance was ample authority. We 2. We have been asked to look at the act "To incorporate the New Orleans, Mobile & Chattanooga Railroad Company," approved November 24, 1866-Pamph. Acts, 6. If that act, section 13, were before us, it would seem to meet the wants of this case, no matter what the class to which Commerce street belongs. But we can not consider that statute. It is a private law, and must be proved in any court; while, in the Chancery Court, it is required to be pleaded as well as proved. 1 Greenl. Ev. § 480; McDonald v. Mobile Life Ins. Co., at this term. [Perry v. New Orleans, Mobile & Chattanooga Railroad Company.] Our attention has been directed to the case of Fredericksburg & Potomac R. R. Co. v. City of Richmond, recently decided in the Supreme Court of Appeals of Virginia. The opinion of CHRISTIAN, J., delivered in that case, contains much sound argument, and many reasons why legislative bodies, in conferring on railroad corporations right of way over streets of cities and towns, should reserve to such cities or towns some control and discretion in the selection of the street along which the railroad will be permitted to lay its track. In that case, the legislative grant authorized the raising of "a joint capital stock, for the purpose of making a railroad from some point within the corporation of Richmond, to be approved by the common council, to some point within the corporation of Fredericksburg," &c. It is manifest that, in this grant of power, no absolute authority was conferred on the railroad corporation to locate its track on any street, without the approval of the common council. Section 13 of the act incorporating the New Orleans, Mobile & Chattanooga Railroad Company contains no such limitation on the power of the corporation; and while it may be a subject of regret that no such wholesome restraint has been reserved in the present charter, we have no power to insert one by construction. Under the rules declared above, this entire subject was within the power and discretion of the legislature, and they seem to have conferred the right in absolute terms. The principles declared in the Virginia Supreme Court of Appeals are not in conflict with our views expressed above. A supplemental bill was filed, which alleges that the city ordinance, authorizing the railroad company to lay its track in Commerce street, was subsequently repealed. We forbear to comment on this, because the question will become a very different one, when the act incorporating the New Orleans, Mobile & Chattanooga Railroad Company, set up in the answer, is brought before the court. On the question of the effect of such repeal, if done after work had been commenced under it, even if the city ordinance had been necessary to confer the right in the first instance, see Fearn's Ex'r v. Mayor, &c., Mobile, at the present term. See, also, section 13 of the railroad charter, supra. 3. We do not think the charge of bribery in this record is sufficiently specific to require any notice at our hands. It omits to charge the officer bribed, the sums paid or promised, &c. Pleading should, at least, tender an issue, which can be met by a denial, and by testimony directed to an inquiry that is definite and intelligible. While we feel bound to reverse the decree of the chancel [Anonymous.] lor, by which he sustained the defendant's demurrer, we think the answer justified the dissolution of the injunction. We therefore decline to reinstate it. Reversed and remanded. Anonymous. Bill in Equity for Divorce. 1. Custody of children, on divorce or separation --Under the statutes of this State (Rev. Code, §§ 2367, 2397), the Chancery Court has power, in cases of divorce, or voluntary separation between husband and wife, to commit the custody and education of the children to either parent; and in the exercise of this power, the court regards the welfare and interest of the children as the paramount consideration, not recognizing any superior right on the part of the father, nor necessarily excluding the guilty party, though regarding with greater favor the claim of the innocent. 2. Same. Although the statute (Rev. Code, § 2397) speaks only of "voluntary separation," it is not confined to cases in which each party has expre-sly assented to the separation, but must be held to include cases in which the conduct of the husband, though not amounting to legal cruelty, or other cause of divorce, has justified the wife in leaving his house and returning to her father's. 3. Same.--The court is always reluctant to deprive the mother of the custody of an infant daughter, and seldom (if ever) does so where misconduct is not imputable to her; and in this case, while refusing her a divorce, decrees to her the custody of her infant daughter of tender years, the only child of the marriage, as on a voluntary separation. APPEAL from the Chancery Court at Montgomery. The bill in this case was filed by the appellee, on the 31st July, 1874, and sought a divorce from her husband, on the ground of cruel treatment; and she also asked a decree giving her the custody and control of her infant child, a girl four or five years old, the only issue of the marriage, and an injunction to prevent her husband from removing it out of the county. On final hearing, on pleadings and proof, the chancellor refused to grant a divorce, but held that the complainant was entitled to the custody of the child, and rendered a decree accordingly. From this part of the decree the husband appeals, and here assigns it as error. THOS. H. WATTS, for appellant.-The father has a paramount right to the custody and control of his children, without regard to their sex; and no court, in the absence of statutory provisions, can take away, or interfere with this right, |