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to that which is now caused by steam railways. And in that case, and in every instance where such street railways cause special damages to the adjoining land owners, the redress should be left to the statutory remedy given in most of the states, for consequential injury caused by railway companies. We cannot suppose that there can be any difference as to the rights of the owners of the soil, whether the railway is operated by a corporation or a natural person, or that it is, of necessity, mainly a monopoly. The fact that ordinary travellers are not allowed to conform their carriages to the tracks of the company, so as thereby to convert it to their own use, can make no essential difference with the owners of the soil: Brooklyn Central Railway vs. Brooklyn City Railway, 52 Barb. R. 358. This cannot be done even by consent of the municipal authority: Ib.
2. It has been repeatedly decided that a street railway, which is erected under a grant from the legislature, and with the concurrence of the municipal authorities, is not to be regarded as a nuisance or purpresture: Milhau vs. Sharp, 15 Barb. R. 193; Plant vs. Long Island Railway, 10 Id. 26; Chapman vs. Albany and Schenectady Railway, Id. 360; Adams vs. S. and W. Railway, 11 Id. 414; Hodgkinson vs. Long Island Railway, 4 Edw. Ch. R. 411. Some of the cases, in deciding that a street railway is not a nuisance of such a character, that it will be enjoined at the suit of the adjoining land owners, place stress upon the fact, that the railway is so constructed and used as not to obstruct or impair, the public right of way: Hamilton vs. New York and Harlem Railway, 9 Paige R. 171; Drake vs. Hudson River Railway, 7 Barb. R. 508. See also Willard's Eq. Ju. 402, 406.
3. We think it may be fairly regarded as evidence of very surprising interest in the public feeling, in having street railways maintained, and of condescension towards them, on the part of the public generally, that no more remonstrance has yet been made in regard to the kind and degree of obstruction which they una voidably do produce in the public streets in cities, and especially in the greatest thoroughfares, where they are most used, and would, ty consequence, be most likely to be built, if the municipal autho
rities will allow it. In some portions of the City of New York, we think, and probably in other cities, the street railways are excluded from the most crowded thoroughfares, and confined to streets where they may be operated in lines parallel to the main thoroughfares, and thus afford substantially the same accommodation to public travel, with less serious embarrassment to the other modes of travel. But this is not the usual course in the cities, so far as we have observed. More commonly the tracks of these street railways are allowed to be laid precisely where there is the most of other travel, and where, by consequence, they must inevitably cause a most uncomfortable amount of embarrassment, often, to others. And in some thronged streets, not wide in themselves, the street railways are allowed to lay double tracks, which, by the frequent passing and repassing of cars, almost wholly obstruct, at times, the free passage of teams and carriages, for periods of greater or less duration.
4. It has, therefore, always seemed probable to us, that at no remote period, after the feverish gratification consequent upon having such a luxurious and inexpensive mode of street travel, so generally introduced into the principal streets of our large cities, shall have so far subsided as to allow of what has been very appropriately called "the sober second thought of the people," to find expression, there will not be the same enthusiastic concurrence in the necessity of having such a monopoly of transportation in so uncomfortable a mode, so far as other travel is concerned, so generally maintained. It has seemed amazing to us, that no more clamor against so serious an obstruction of the thoroughfares in the larger cities, has hitherto been heard. We should, of course, rejoice to see the continuance of the same quiet acquiescence in the partial evils caused by these street railways, for more universal good. But we scarcely dare expect it.
5. We think it fair, therefore, to admonish the proprietors of such interests, to be prepared for a serious reaction, in regard to them, in the public mind, and not to count too confidently upon the continuance of this unbroken, unclouded sunshine of public favor. We know many able jurists and wise statesmen, somewhat of the
old school, be sure, who regard them with no favor; and if not prepared to denounce them as altogether unmitigated evils, yet feel that they are by no means exempt from the charge of themselves causing serious public grievance, if not even deserving of a more offensive name. We are certainly not disposed to sound any note of alarm against so important a public interest. What we have said has been altogether by way of friendly caution, and to induce, if possible, reasonable circumspection on the part of such companies to maintain the most entire submission to, and patient endurance of, those little inconveniences which will be liable always to occur in the streets, feeling that they are already sufficiently protected from any intentional obstruction and embarrassment, both by the statutes of the states and the decisions of the courts
IV. We deem it proper, also, to give some brief outlines of the relative rights and duties of the street railway companies and the municipal authorities of the town or city through which they pass, in regard to the maintenance of the public highways in safe condition for public travel.
1. The selectmen of the several towns, and the mayor and aldermen of the cities, have all the powers and duties of the towns and cities which they represent, and are bound to maintain the rights and duties of their respective superiors, and to vindicate the public rights committed to their care and control: City of Boston vs. Boston and Prov. Railw. Co., 6 Cush. R. 424.
2. The primary responsibility in regard to the safe condition of highways and streets, so far as the public is concerned, rests upon the towns and cities, notwithstanding their insecurity may have been caused by the negligence or misconduct of the railway comn. pany; and which might be at the time exercising a legal right in an improper manner, and in regard to which the municipalities had no direct control over them: Currier vs. Lowell, 16 Pick. R. 170; Willard vs. Newbury, 22 Vt. R. 458; Batty vs. Duxbury, 24 Vt. R. 155; Buffalo vs. Holloway, 14 Barb. R. 101.
3. It is not intended to intimate here that the railway companies, who are first in fault, are not also liable to the persons injured by such default on their part. There can be no question they are
üable to an action, directly, by the party injured. This has been often decided by the English courts: Drew vs. New Riv. Co., 6 Car. & P. 754; Manley vs. The St. Helen's Canal and Railw. Co. 2 Hurst. & Norm. 840.
4. And in regard to those defects in highways where the munipal authorities could not interfere to remedy them, without an anauthorized interference with the track of the railway company, the towns are not liable at all for any injury which may occur in consequence, the companies being alone responsible: Davis vs. Leominster, 1 Allen, 182; Jones vs. Waltham, 4 Cush. R. 299. Nor are the towns responsible where the injury is occasioned by in illegal act of the railway company. The party affected will have to look exclusively to the company in such cases, unless the act of the company had before rendered the highway unsafe, and this had become known to the town: Vinel vs. Dorchester, 7 Gray R. 421. So, also, when a railway company, by occupying the highway, finds it needful to erect and maintain a bridge for the accommodation of the highway, the towns are not held responsible
any defects in such bridge: Sawyer vs. Northfield, 7 Cush. R. 490; see, also, Redfield on Railways, 391, et seq., § 171. But in such case the towns may compel the railway companies to keep such bridge in repair, by writ of mandamus, and may recover of them any expenses incurred by keeping them in repair: State vs. Gorham, 37 Maine R. 451.
5. And in all cases where towns or cities are made responsible to persons suffering injury in consequence of defects in the streets or highways, through the fault of railway companies primarily, such railway companies are liable to indemnify the towns or city, for all damages or costs thereby suffered: Lowell vs. Boston and Lowell Railw., 23 Pick. R. 24; Newbury vs. Conn. and Pass. Railw. Co., 26 Vt. 751, 752. And in such cases costs will include counsel fees and other necessary expenses: Duxbury vs. Vt. Central Railw. Co., 26 Vt. R. 751, 752, 753; Hayden vs. Cabot, 17 Mass. R. 169, where Parker, C. J., says: "If the surety pays voluntarily, he shall be reimbursed; if he is compelled by suit to pay, he shall also be indemnified for his costs and expenses.
6. And even where the injury did not accrue for more than six years after the unlawful act or neglect of the company, it was held that they were still responsible to the town to indemnify them; and that it would not exonerate the company guilty of the neglect, that they had subsequently leased their road to another company, who were operating it at the time the injury occurred. Hamden vs. N. H. & Northampton Co. and N. Y. & N. H. Railway Co., 27 Conn. R. 158.
7. But when the railway company have a right to lay their rails in the streets of a city or town, they are not responsible for any injury resulting therefrom to others, unless they were in fault, either in laying them down or keeping them safe. In such case the injury is considered accidental. Mazetti vs. N. Y. & Harlem Railway Co., 3 E. D. Smith R. 98.
8. And where a street railway company were authorized to construct their line and operate their road through the streets of a city, and the municipal authorities have assented to the location of the company's road upon a given route on certain conditions, one of which was, that it be completed in a given period, it was held that the municipal authorities had no power to vacate the location for failure of the company to complete their road in the time prescribed; that such condition was not to be regarded as precedent, but subsequent, and that nothing short of a judicial determination would operate to divest the interests of the company. Brooklyn Central Railway vs. Brooklyn City Railway, 32 Barb. R. 358.
9. But in those charters of street railways, where there is reserved to the municipal authorities a power of vacating the location of street railways, in their discretion they may undoubtedly exercise such power, upon the ground that the original location was injudiciously made, the track being placed in the middle of the street, when it should, for the accommodation of the public travel, have been placed upon the margin of the street, or vice versa. We say this upon the ground that such a reservation evidently looks mainly to the placing such street railways under the absolute control of the municipal authorities; and that such a control, to be of any prac tical benefit to the public, as a defence against the assumption of