Taggart v. Newport Street Railway Co. , 7 L.R.A. 205 ( 1890 )

This bill is brought by the complainants as abutters on certain streets in the city of Newport, along and over which the tracks or rails of the defendant company's street railway have been laid. The object is to have the company enjoined from erecting or maintaining certain poles and wires in the streets in front of their estates. Said poles were erected to support said wires over said tracks for the conduction of electricity, which is used as a motor for the passenger cars traversing said tracks. The poles are placed along the margins of the sidewalks of said streets about one hundred and twenty feet apart, and were placed so by permission of the city council of the city of Newport, given by ordinance. The case was submitted on bill and answer, no replication having been filed. The bill alleges several grounds of relief. We will consider them severally as alleged.

The first ground is, that the company did not give notice as required by section 2 of the act of incorporation. Said section provides for notice to abutters, to be given by publication and posting at least fourteen days before the location of tracks proposed to be laid. The bill alleges that the purpose for which the notice was required was to apprise the abutters "of the nature and extent of the proposed use of the streets and highways," and to afford them an opportunity to appear before the city and town councils having power over the matter, and be heard in relation thereto. The bill admits that a notice was given in August and September, A.D. 1888, but avers that it was defective in that it did not set forth that any other than horse power was intended to be used. The answer states that said notice did not refer to the matter of power, and maintains that any reference to it therein was unnecessary, since section 2 prescribes notice only before action in regard to the location of the tracks. This is so. It is section 5 that relates to the power. That section provides that "said tracks or road shall be operated and used by said corporation with steam, horse, or other power, as the councils of said city and towns may from time to time direct." No notice is required before such direction. The ordinance in regard to location was passed January 24, A.D. 1889. It permitted the use of horse power only. The ordinance permitting the use of electricity was passed March 5, A.D. 1889. It seems to us that the latter ordinance was clearly authorized by section 5 in the words above quoted. The previous location of the tracks was not affected thereby.

The second ground alleged is, that the right to use electricity is not given. The language in regard to the power to be used is that above quoted, namely, that the road shall be operated "with steam, horse, or other power, as the councils of said city and towns may from time to time direct." The complainants contend that the word "steam" must be struck out, because it has been decided that steam cannot be used without compensation to the owners of the fee for the new servitude imposed, and no compensation is provided for, and because, "steam" being struck out, "other power" must be construed to mean other power similar to horse power, i.e. other animal power. We do not find the argument convincing. Allowing that "steam" must be struck out for the reason given, it does not follow, in our opinion, that "other power" must be construed to mean other animal power. Horse power is the only animal power which has ever been used for the traction of street railway cars in our northern cities, and it is the only animal power which could have occurred to the General Assembly as fit to be used. The suggestion that "other power" may mean mules cannot be entertained. The act of incorporation was passed in the winter of 1885, when the idea that electricity might be brought into use as a motor was already familiar, and nothing seems more probable than that the words "other power" were inserted with a view to its possible employment. We do not think the second ground valid.

The third ground is, that the erection of the poles on the sidewalks is in effect prohibited by the act of incorporation. The seventh section, which relates to the repair of the streets where the tracks are and to damages for negligence on the part of the company, concludes as follows, to wit: "And said corporation shall not incumber any portion of the streets or highways not occupied by said tracks." The poles are certainly in a portion of the streets not occupied by the tracks; but do they incumber that portion, in the meaning of the word as used? To incumber, according to Webster, is "to impede the motion or action of, as with a burden; to weigh down; to obstruct, embarrass, or perplex." To incumber, as used in said section 7, doubtless means to obstruct or hinder travel by putting things in the way of it. The poles are very slightly in the way of travel, being placed, as hitching posts, lamp posts, electric light poles, telegraph and telephone poles are placed, near the front margins of the sidewalks. We are not inclined to say, however, that they do not incumber because they are placed as they are, but only that it does not follow that they incumber because they are so placed. Take, for instance, a lamp post or an electric light pole. It is slightly in the way, and, if it served no useful purpose in regard to the street, might justly be deemed to incumber it. But it supports a lamp, or an electric light, which illuminates the street at night, and so improves the street for its proper uses. It is not, therefore, an incumbrance in any proper sense of the word. The real question is, as it seems to us, whether the words, "and said corporation shall not incumber any portion of the streets or highways occupied by said tracks," were intended to restrain the city council of the city of Newport from authorizing the use of electricity for a motor in the manner in which it is used by the company. We have already decided that the council has power by section 5 to authorize the use of electricity, so that the question relates only to the manner of using, and is, whether the council has power to authorize the use in said manner. It seems to us that the provision that the tracks or road shall be operated by "steam, horse, or other power, as the councils of said city and towns may from time to time direct," is broad enough to empower said councils not only to authorize the use of electricity as a motor, but also to authorize its use by means of any system of application which it approves as suitable; and it further seems to us that the concluding words of section 7 have their full meaning when applied to the company acting of itself, without extending them to city and town councils acting under section 5, or to the company acting under said section as authorized by such councils. It appears that said concluding words were copied from charters of street railway companies which were only authorized to use horse power, and in which, of course, they could have had no such application as is here contended for. It also appears from the allegations of the answer that the mode of using electricity which has been adopted is the only mode in which it can be successfully used by the company for the operation of the road. These are things which confirm our views. Our conclusion is, that the power conferred by section 5 is not qualified by the concluding words of section 7, and that the poles complained of, having been erected under section 5 as part of the apparatus for supplying the railway with its motive power, are to be regarded, not as incumbering the streets, but as ministering to their uses, and as increasing the facilities for travel which they afford to the public.

The fourth ground alleged is, that if the act of incorporation authorizes the use of electricity for the operation of said street railway, and the erection of the poles as ancillary thereto, it is unconstitutional and void because it authorizes the imposition of an additional servitude upon the streets without providing for any additional compensation to the owners of the fee of said streets. We think it is settled by the greater weight of decision that a railroad constructed in a street or highway, and operated by steam in the usual manner, imposes a new servitude and entitles the owner of the fee to an additional compensation; but that a street railway operated by horse power, as such street railways are ordinarily operated, does not impose any new servitude, and does not entitle the owner of the fee to any additional compensation. Mills on Eminent Domain, § 205 and cases cited; Angell on Highways, § 91 d, n. 1, and cases cited; Newell v. Minneapolis, L. M. Railway Co.35 Minn. 112; also 25 Amer. Law Register, N.S. 431, and cases cited in the note. The distinction is often stated as a distinction between steam and horse railroads, but properly it depends, not on the power that is used, but on the effect that is produced. A steam railroad is held to add a new servitude because, as ordinarily operated, it largely prevents the use of the street in the usual modes. Pierce on Railroads, 234. A steam railroad on a street, operated so as to be compatible with the usual modes of use, has been held not to impose a new servitude.Newell v. Minneapolis, L. M. Railroad Co., supra; Fulton v.Short Route Railway Transfer Co. 85 Ky. 640. It is not the motor, but the kind of occupation, whether practically exclusive or not, which is the criterion. Briggs v. Lewiston Auburn Horse R. R.Co. 79 Me. 363. A steam railroad, as ordinarily operated, it has been said, dangerously interferes with the usual modes of travel, and is a perpetual embarrassment to them, in greater or less degree, according as its business is greater or less, or as the running of the trains is more or less frequent; whereas the ordinary street railway, instead of adding a new servitude to the street, operates in furtherance of its original uses, and, instead of being an embarrassment, relieves the pressure of local business and local travel. Grand Rapids Indiana RailroadCompany v. Heisel, 28 Mich. 62. See, also, Attorney General v.Metropolitan Railroad, 125 Mass. 515; Citizens' Coach Co. v.Camden Horse R. R. Co. 33 N.J. Eq. 267; Elliott v. Fairhaven Westville R. R. Co. 32 Conn. 579; Hobart v. Milwaukee City R. R.Co. 27 Wisc. 194. The only considerable privilege which the horse car has over other vehicles is that, being confined to its tracks, other vehicles are obliged to turn aside for it, but this is an incidental matter, insufficient to make the horse railroad a new servitude. Shea v. Potrero Bay View R. R. Co. 44 Cal. 414.

The street railway here complained of is operated by electricity. It does not appear, however, that it occupies the streets or high ways any more exclusively than if it were operated by horse power. The answer avers that "electricity, besides being as safe and as easily managed as horse power for the propulsion of street cars, is more quiet, more cleanly, and more convenient than horses, both for residents on the streets used by said cars and for the public generally, and also causes much less wear and injury to the streets and highways than is occasioned by street cars of which horses are the motive power." These averments, the case being heard on bill and answer, must be taken as true. We see no reason to doubt their truth. It is urged that electricity is a dangerous force, and that the court will take judicial notice of its dangerousness. The court will take notice that electricity, developed to some high degree of intensity, is exceedingly dangerous, and even fatally so, to men or animals, when brought in contact with them; but the court has no judicial knowledge that, as used by the defendant company, it is dangerous. The answer denies that it is dangerous to either life or property. It is also urged that the cars, moving apparently without external force, alarm and frighten horses. This, so far as it is alleged in the bill, is denied in the answer. We see no reason to suppose that this danger is so great that, on account of it, the railway should be regarded as an additional servitude. The answer alleges that many street railways, operated by electricity in the same manner as the defendant's, are in use in different states, and that many more are in process of construction.

Reference has been made to cases which hold that telegraph or telephone poles and wires, erected on streets or highways, constitute an additional servitude, entitling the owners of the fee to additional compensation, and from these cases it is argued that the railway here complained of is an additional servitude by reason of the poles and wires which communicate its motive power. There are cases which hold as stated, and there are cases which hold otherwise. But, assuming that telegraph and telephone poles and wires do add a new servitude, we do not think it follows that the poles and wires erected and used for the service of said street railway likewise add one. Telegraph and telephone poles and wires are not used to facilitate the use of the streets where they are erected for travel and transportation, or, if so, very indirectly so; whereas the poles and wires here in question are directly ancillary to the uses of the streets as such, in that they communicate the power by which the street cars are propelled. It has been held, for reasons which we consider irrefragable, that a telegraph erected by a railroad company within its location, for the purposes of its railroad, to increase the safety and efficiency thereof, does not constitute an additional servitude, but is only a legitimate development of the easement originally acquired. Western Union Telegraph Co. v. Rich, 19 Kan. 517.

Our conclusion is, that the complainants are not entitled to the relief prayed for on the grounds alleged, and that the bill be dismissed with costs.