little disposition to listen to disquisitions, the chief purpose of which is, either to educate the author or to exhibit his skill in dialectics, or in law. The relation of highways to railways, and the rights growing out of these relations, has, first and last, led to more litigation than almost any other subject connected with the LAW OF RAILWAYS.

I. We have here to consider the rights of railways in regard to the land owners, or whether the owner of the fee of land, which has already been taken for the use of a public highway, is entitled to additional compensation when a railway is constructed over the same land. The decisions upon this point have been exceedingly conflicting. While it has always seemed to us extremely clear, as matter of principle, that in such case the railway is an additional servitude upon the land, and therefore justly entitles the owner of the fee to additional compensation; the current of authority, especially in this country, at one time certainly, seemed to be setting, almost without obstruction or protest, entirely in the opposite direction.

1. Some of the earlier cases did, indeed, require additional compensation to the land owner in such cases. The Trustees of the Presbyterian Society in Waterloo vs. The Auburn and Rochester Railway, 3 Hill (N. Y.) R. 567; Fletcher vs. Auburn and Syraeuse Railway, 25 Wendell R. 462; other cases of that date took a similar view: Redfield on Railw. 176, and Notes.

2. But it was very soon discovered by some courts, as they supposed, that a railway was only an improved highway, and this was thought to deprive the land owner of all claim for additional compensation. The course of argument, by which this result was reached, was very natural and plausible. It was well settled that the land owner was not entitled to additional compensation in consequence of any alterations, which the municipal authorities might elect to make in the construction of the highway, as such, whatever detriment he might sustain thereby. This was one of the contingencies, coming fairly within the contemplation of the purpose for which the right of way was originally taken. And even

when the change in the highway was of a character which could not have been reasonably anticipated, either on account of some unexpected change in the necessities of travel, or because the public authority might be regarded as having acted capriciously in the particular matter, it was nevertheless among the exigencies of possible advancement, or of official discretion, or the want of it, to which every loyal man is bound to submit, and which he ought to prepare himself to do with grace, and without additional compensation. This question has been repeatedly decided by the English courts. Governor & Co. of Plate Manufacturers vs. Meredith, 4 T. R. 724; Sutton vs. Clark, 6 Taunt. 29; Boulton vs. Crowther, 2 B. & C. 703; King vs. Payham, 8 B. & C. 355. Similar principles have been adopted in this country: Henry vs. The Pittsburg and Allegheny Bridge Co., 8 W. & Serg. R. 85. In other cases cited in Hatch vs. Vermont Central Railway Co., 25 Vt. R. 49, and note. It seemed very natural hence to conclude, that the legislature might convert a highway into a railway, since that was only a different mode of intercommunication: Williams vs. N. Y. Central R., 18 Barb. R. 222, 246.

3. But the argument has finally been proved unsound. A railway is indeed an improved highway, but it is more. And the land was originally taken for no such purpose. The use is vastly more onerous and detrimental to the owner of the fee, which may fairly be presumed to belong to the land adjoining. And there is not the same probability of abandonment, as in the case of an ordinary highway. The case of Williams vs. New York Central Railway, supra, was accordingly reversed in the Court of Appeals, 16 New York Court of Appeals R. 97, and upon a full review of all the cases, English and American, it was fully determined, that both upon principle and authority, the land owner is entitled to additional compensation for the new burden upon his soil. The same rule is now adopted by the following cases: Imlay vs. The Union Branch Railway, 26 Conn. R. 249; Gardiner vs. Boston and Worcester Railway, 9 Cush. R. I.; Springfield vs. Connecticut River Railway, 4 Cush. R. 63; Tate vs. Ohio and Mis sissippi Railway, 7 Ind. R. 479; Protzman vs. Indianapolis and

Cincinnati Railway, 9 Ind. R. 467; Evansville & C. Railway vs. Dick, 9 Ind. R. 433. Many other American cases will be found in Redfield on Railw. § 16 and Notes.

4. The doctrine of the English courts is elaborately discussed in the late case of The Marquis of Salisbury vs. The Great Northern Railw. Co., 5 Jur. N. T. 70, S. C., 5 C. B. (N. S.) 174. The court here say: "The soil of a public highway is presumably vested in the owner of the adjacent land ad medium filum via." They further say there is nothing in the General Turnpike Acts to alter this presumption, or to vest the soil of that description of roads in the trustees of the roads. Davidson vs. Gill, 1 East R. 69. And in Ramsden vs. The Manchester South Junction & Atl. Railway, 1 Exch. R. 723, it was expressly determined that a railway company has no right to tunnel even under a highway, without making previous compensation to the land owner. See also Thompson vs. East Somerset Railway, 29 Law Times, 7. So that we think it safe to affirm that notwithstanding the large number of American cases in the opposite direction, the tide is so completely turned, that it will not relapse.

II. The law has been held somewhat different in regard to the streets of cities, and whether the attempted distinction between such streets and common highways will ultimately prevail, it is, perhaps, not time to determine with confidence.

1. In regard to street railways, not operated by steam power, the decisions have been uniform, we believe, that the land owners are not entitled to any additional compensation: Brooklyn Central and Jamaica Railway vs. Brooklyn City Railway, 33 Barb. R. 420. And the same rule was applied where a common highway was converted into a turnpike road, and an incorporated company allowed to take toll on the same: Wright vs. Carter, 3 Dutcher R. 76. But in Williams vs. The Natural Bridge Plank Road Company, 21 Mo. R. 580, it was decided that the grant of such a road along a highway did not preclude the claim of the owner of the soil for compensation for the additional purchase. This case is not, however, in consonance with the general course of decision upon the subject, at the present time.

2. It seems generally to have been considered that the munici pal authorities of a city, or large town, have such an exclusive control over the streets, that a railway company duly chartered by the legislature for the purpose of constructing a railway, extending within the limits of such town or city, will require no other warrant for the construction of their road, except that of the consent of the municipal authorities, as to the particular location; and that the adjoining land owners, or abutters, have no such interest in the land covered by streets, as will entitle them to compensation. This was so decided at an early day, soon after railways began to be constructed in the country: Philadelphia and Trenton Railway, 6 Wharton R. 25; Lexington and Ohio Railway vs. Applegate, 8 Dana R. 289; Hamilton vs. New York and Harlem Railway, 9 Paige, 171; Hentz vs. Long Island Railway, 13 Barb. 646; Chapman vs. Albany and Schenectady Railway, 10 Barb. 360; Redfield on Railways, 162, and cases cited, § 76, pl. 6, n. 6. But even this doctrine seems to have been somewhat questioned in the case of Nicholson vs. New York and New Haven Railway, 22 Conn. R. 74, where it was held that the company, in laying their road through the City of New Haven, in which they found it necessary to carry one of the streets over the railway, upon a bridge with large embankments at both ends, the plaintiff owning the land abutting, and no compensation being offered him, became liable to the plaintiff in an action of trespass for any appreciable incidental damages occasioned thereby to him. It was also here held, that the company having proceeded, under the authority of the legislature, were primâ facie not liable as trespassers, but that when they caused any appreciable damage to the land owners along the line of the street they occupied by their road, they were liable in this form of action.

The court in this last case, Hinman, J., assume the distinct ground, that the railway, by laying their track upon the plaintiff's land, which was before only subject to the servitude of the highway or street, would become liable for "such entry" upon the land. "In all such cases," said the learned judge, “the subecting the plaintiff's property to an additional servitude, is an

infringement of his right to it, and is, therefore, an injury and damage to him. It would be a taking of the property of the plaintiff, without first making compensation," thus treating the fee of the land covered by the street as still being in the adjoining owner.

3. From what we have said, it will be apparent the cases are not as yet entirely harmonious, in regard to the use of the streets of our large towns and cities, for the bed of steam railway tracks; and it is not easy now to determine precisely where the true principle must eventually bring the courts. There does not seem to be any such difference between the streets of a city and large towns like New Haven, which is also, in fact, a city, as to justify any different rule, as applicable to the two cases. And the same may be said of the imperceptible shades by which the streets of cities and towns grow into mere country highways, as they recede in that direction. It would be difficult upon any of the highways. leading into our cities to determine the precise point at which a steam railway would cease to be liable to make compensation to the adjoining land owners for occupying the highway by their track. III. If we were to conjecture the final result of the cases upon this subject, we should say:

1. That street railways are so nearly the same thing as the ordinary use of a highway, that no additional compensation will ever be required to be paid to the owners of the soil, from the mere fact of occupying the street in that way, whether it be in the city or country. The motive power is the same, the noise and dust not increased, and the only appreciable difference consists in bringing the travel to a defined line. This is not attended with any inconvenience to the land owner. The grade of the street is not required to be changed, and the same is true where these lines of travel are carried along the line of highways in the country, as is now the case for long distances in the vicinity of some of the large towns. We cannot therefore conjecture any sufficient ground for subjecting the proprietors of such street railways to the burden of making additional compensation to the land owners; unless from the future use of steam power upon street railways, they should cause a similar annoyance

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