cordingly, if such a highway were to be discontinued, according to the legal forms prescribed for that purpose, the railroad corporation would still insist upon the express and independent grant of an easement to itself, enabling it to maintain its own road on the site of the abandoned highway. We are of opinion, therefore, as was distinctly intimated by this court, in a former case1 that, to subject the owner of the soil of a highway to a further appropriation of his land to railway uses is the imposition of a new servitude upon his estate, and is an act demanding the compensation which the law awards when land is taken for public purposes."" The dissimilarity of highways and railways cannot be more strikingly presented than by a consideration of the numerous safeguards that are thought necessary to be thrown around the public, when a railroad crosses a highway. The bells must be rung, the whistle must be blown, the speed must be slackened, and very often bars are laid across the highway, so that vehicles and foot passengers cannot attempt to cross the track while the train is passing. How much greater would be the inconvenience to the public if a railroad track was laid along the highway, instead of across it. But where the fee of the highway is in the public, the cases pretty generally hold that the establishment of a railroad along a highway is not such a taking of property of the adjoining land owner as will require the payment of compensation. It cannot be doubted that in no case See opinion of Hinman, J., in Nicholson v. N. Y., etc., R. R. Co., 22 Conn. 74, 85. 2 Milburn v. Cedar Rapids, etc., R. R. Co., 12 Iowa, 246; Clinton v. Cedar Rapids, etc., R. R. Co., 24 Iowa, 455; Franz v. Railroad Co., 55 Iowa, 107; Grand Rapids, etc., R. R. Co. v. Heisel, 38 Mich. 62 (31 Am. Rep. 306); Grand Rapids, etc., R. R. Co. v. Heisel, 47 Mich. 393; Harrison v. New Orleans, etc., R. R. Co., 34 La. Ann. 462 (44 Am. Rep. 438); Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. Co. v. O'Daily, 13 Ind. 353; Chicago, etc., R. R. Co. v. Joliet, 79 Ill. 25; Moses v. Pittsburg, etc., R. R. Co., 21 Ill. 516, 522. In this last case, does the consequential depreciation in value of adjoining property, as a result of the construction of a steam railway along the street, constitute a taking of property which requires a payment of compensation, any more than the ordinary and reasonable exercise of any right gives rise to liability for incidental injuries to others. The appropriation of a highway to other purposes must interfere with some positive right of property, in order that it may be considered a taking of property. Where the public does not own the fee, any other and different use of the highway Caton, C. J., said: "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 municipal 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, discommode 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 the 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 would be a taking, whatever effect it may have upon the adjoining property, as has been already fully explained, for there would be a fresh appropriation of the property of the owners of the fee. But when the fee is in the State, the adjoining land owner has only an easement in the street, which entitles him to a reasonable enjoyment of it as a street, and an appropriation of it to other purposes, for example, for the construction of a steam railway, will constitute a taking of the property of the abutting proprietor, only when 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, although 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 used, but because the cars are larger than were formerly used, and run upon iron, and 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 center 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 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 of 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." his reasonable enjoyment of the street as such is denied to him. The noise, smoke, etc., do not involve any taking of property, however much it may depreciate the value and the desirability of the adjoining property. This would seem to be the better doctrine, and such is the opinion of the Indiana courts.1 But the courts are almost unanimously of the opinion that the appropriation of the street to the use of an ordinary horse railway, designed to convey passengers and property from one part of a city to another, is not a new taking of property, for which compensation must be made, whether the fee is in the State or in the abutting land owner. The use of the highway by a horse car company is held to be consistent with its use as a highway, and to constitute no interference with the reasonable enjoyment of the adjoining property-owner. But the abutting land owner is only entitled to a reasonable use of the street as such, and the infliction on him of a mere inconvenience in the use of the street, by the construction of a street railway, will not 1 Protzman v. Indianapolis, etc., R. R. Co., 9 Ind. 467; New Albany, etc., R. R. Co. v. O'Daily, 12 Ind. 551; s. c. 13 Ind. 353. See, also, Street Railway v. Cumminsville, 14 Ohio St. 523; Grand Rapids, etc., R. R. Co., 38 Mich. 62 (31 Am. Rep. 306); s c. 47 Mich. 393. For cases, in which the fee was in the adjoining proprietor, see Attorney-General v. Metropolitan R. R. Co., 125 Mass. 515 (28 Am. Rep. 264); Commonwealth v. Temple, 14 Gray, 75; Elliott v. Fairhaven, etc., R. R. Co., 32 Conn. 579; Hinchman v. Railroad Co., 17 N. J. Eq. 75; s. c. 20 N. J. Eq. 360; City Railroad Co. v. City Railroad Co., 20 N. J. Eq. 61; Street Railway v. Cumminsville, 14 Ohio St. 523; Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 (9 Am. Rep. 461). In Craig v. Railroad Co., 39 Barb. 449; s. c. 39 N. Y. 404; Wager v. Railroad Co., 25 N. Y. 526, it was held that there was no difference between the horse and steam railways. In both cases, there must be a payment of compensation for a new taking of property from the owners of the fee. For cases, in which the fee was in the public, see People v. Kerr, 27 N. Y. 188; Kellinger v. Street Railroad Co., 50 N. Y. 206; Metropolitan R. R. Co. v. Quincy R. R. Co., 12 Allen, 262; Street Railway v. Cumminsville, 14 Ohio St. 523; Chicago v. Evans, 24 Ill. 52; Hess v. Baltimore, etc., Railway Co., 52 Md. 242 (36 Am. Rep. 371. constitute a taking. Thus, it was held in New York, that the construction of a street railway, so near to the sidewalk as not to leave space enough for the standing of vehicles between the track and the sidewalk, was a taking of property in the constitutional sense. And the same opinion was expressed in Wisconsin concerning a street railway whose tracks prevented the owner of a store from having his drays stand transversely to the sidewalk, while unloading goods." While the running of a street railway does not ordinarily interfere with the reasonable enjoyment of the street by the adjoining land owners, still it might, under peculiar circumstances, interfere very seriously with the ordinary use of the street, as where the street is very nar row, and at the same time a great business thoroughfare; and whenever that happens, the construction of the railway would constitute a taking of property, for which compensation can be demanded. Mr. Cooley seems to think that under such circumstances, the property owner would, in the light of the authorities, be without a remedy. But while the proprietor of the adjoining property may be incommoded to some extent by the construction and maintenance of a street railway, without entitling him to compensation, his complete exclusion from the ordinary use of the street, or an extraordinary and unreasonable interference with such use, would support a claim for compensation, as being a taking of property in the exercise of the right of eminent domain. Such, at least, appears to us to be a reasonable deduction from the authorities, which hold that any interruption of the reasonable use of the streets by the abutting land owner will constitute a taking of property. It has sometimes happened that land, which had been appropriated for the opening of a street, is afterwards used 1 Kellinger v. Street R. R. Co., 50 N. Y. 206; People v. Kerr, 27 N. Y. 188. Hobart v. Milwaukee City R. R. Co., 27 Wis. 194 (9 Am. Rep. 461). |