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Chicago and Calumet Terminal Ry. Co. v. Whiting, etc., St. Ry. Co.


And the question here presented by challenging the sufficiency of the complaint is whether the same rule applies to street railways, that is, whether the appropriation of a street to the use of a street railway is a new and an additional appropriation, a new and additional burden to that of the easement of the public generally. It is conceded by the appellant that a street railroad is not an additional burden upon the fee in the street, although appellant claims that strong reasons exist against the doctrine. It is conceded, however, that the courts have quite generally held that such use of a street is not an additional burden; that it is simply an extended use of the right which the public acquired in the first instance.

This concession we think admits that the appellant has no cause to complain of the action of the circuit


The writer of this opinion seriously doubts the soundness of the rule thus conceded by the appellant. It is true street railway corporations as a component part of the general public have a right to the use of the public streets of a city or town for the purposes of ordinary travel over them in the same way that any other portion of the general public may enjoy that right. But when they obtain a right of way over such streets to lay down their tracks on such streets they obtain and secure a right and an interest in the street that the general public does not, and can not, have and enjoy. They obtain to all intents and purposes as much a property right in their right of way in the street attached to the soil as the steam railway laid on such streets. This is so because such companies are authorized to mortgage their corporate property and franchises to secure the payment of loans of money to the corporation. Such power necessarily carries with it power to sell such property and

Chicago and Calumet Terminal Ry. Co. v. Whiting, etc., St. Ry. Co.

franchises at sheriff's sale to make the money. 2 Burns R. S. 1894, section 5473. New Orleans, etc., R. R. Co. v. Delamore, 114 U. S. 501. How such a right can constitute nothing more than the easement the public has in the street, it is difficult to understand. If the location and operation of a street railway on a public street is no new nor additional burden on the soil, but rests on the easement the public has in the street, then it seems to the writer the company need not obtain any license permit or franchise from the municipal authorities to construct its tracks in the public streets of a city. And yet it is the settled law in this and other States that a street railway can not be laid upon the streets of a town or city without a grant of a license or franchise therefor, either by the municipality or the Legislature. Indianapolis Cable Street R. R. Co. v. Citizens' St. R. R. Co., 127 Ind. 369; 23 Am. and Eng. Encyc. of Law 946, 947, and authorities there cited. No other part of the public is required to obtain a license or franchise to use or enjoy the easement of the street.

The very fact that a franchise is required to authorize and justify a street railway company to lay down its tracks on a public street, seems to the writer a sufficient reason for saying that such was not one of the uses in contemplation when the street was opened and dedicated. Besides, it is settled law that the street railway company, when once its track is constructed on a street, has rights over that part of the street where its track is located superior to those of the public who enjoy only the easement in the street. For instance the public must turn off the street railway track when met by the street railway cars. 23 Am. and Eng. Encyc. of Law 990, 991, and authorities there cited.

But the overwhelming weight of authority seems to settle the law, both in this State and elsewhere, that a

Chicago and Calumet Terminal Ry. Co. v. Whiting, etc., St. Ry. Co.

street railway is not an additional burden to that of the general easement in the street, and that the owners of the fee are not entitled to damages on account of the construction thereof on a public street. Eichels v. Evansville St. R. W. Co., supra; Indianapolis Cable St. R. R. Co. v. Citizens St. R. R. Co., supra; Elliott v. Fair Haven, ete., R. R. Co., 32 Conn. 356; Hinchman v. Paterson Horse R. R. Co., 17 N. J. Eq. 75; Jersey City, etc., R. R. Co. v. Jersey City, etc., Horse R. R. Co., 20 N. J. Eq. 61; Cincinnati, etc., St. R. W. Co. v. Cumminsville, 14 Ohio St. 523; Hobart v. Milwaukee City R. R. Co., 27 Wis. 194; Attorney-General v. Metropolitan R. R. Co., 125 Mass. 515; Brown v. Duplessis, 14 La. Ann. 842; Savannah and Thunderbolt R. R. Co. v. Mayor, etc., 45 Ga. 602; Peddicord v. Baltimore, etc., R. W. Co., 34 Md. 463; 23 Am. & Eng. Encyc. of Law, 954, 955, 956 and 957, and authorities there cited.

These authorities, and others that might be cited, so firmly settle the rule that it could not now be departed from without serious disturbance of vested property rights. The use of the street by the appellant is subject to the easement in the public and the burden of keeping the street crossing over its tracks in such a condition as not to impede or obstruct the public easement and use of the street by the public generally is a burden already resting on the appellant. That burden is in no way to be added to or increased by the crossings appellee proposes to construct. So long, therefore, as it is the settled law of this State that a street railway is not an additional burden to that of the easement which the general public has in the strect, and that the street railway company's right to use the street is founded on that easement, that long it must be held that the right of such street railway to cross over the tracks of a steam railway laid on such street is subject to no conditions other than those to

Chicago and Calumet Terminal Ry. Co. v. Whiting, etc., St. Ry. Co.

which the general public is subject in traveling over such streets. When the steam railway company obtained its right of way over and along a public street it does so subject to the right of the general public to use such street and the street crossings over its tracks; and it is generally incumbent on such steam railway company to make such crossings as passable for the general public as they were before the construction of their tracks thereon. The duty, therefore, is incumbent on the steam railway company only to make the crossing as passable as it was before the construction of its tracks thereon for the public generally, or as nearly so as practicable. That does not impose the burden of providing cross rails and tracks for the street railway to make the crossing. But the street railway is proposing to furnish all that itself, and to be to all the expense of making the crossing and connection.

Appellant contends that this will be a burden and a hindrance to the free and unobstructed use of the appellant's steam railway, which, it is claimed, is a taking of private property without just compensation in violation of the constitution. True, it is a hindrance and an obstruction to the use of appellant's steam railway. But, having obtained its right of way subject to the burden of the easement in the public generally, and the street railway being entitled to the use of that easement, all the rights appellant obtained in the street for its steam railway were subject to the right of the street railway to use the street. In short, the appellant's rights obtained in the use of the streets for its steam railway were subject to the burden of the appellee's use thereof in the ordinary and proper manner for its street railway.

The complaint shows that appellee was only proposing to use the streets at the crossings in the ordinary VOL. 139-20

Chicago and Calumet Terminal Ry. Co. v. Whiting, etc., St. Ry. Co.

and in a proper manner for the construction of street railway crossings, and that it had been hindered and obstructed therein by the appellant in the use of force. It would, therefore, not be a taking of private property without just compensation, because it does not propose to take from appellant anything it ever owned. It never owned its right of way over and across the streets named free from the burden of the public easement, a part of which belongs to the appellee, the street railway. The conclusion we reach is not in conflict with the case of Indianapolis, etc., Gravel Road Co. v. Belt R. W. Co., 110 Ind. 5, cited and relied on by the appellant.

In that case the gravel road company was a private corporation and the owner of the gravel road before the construction of the Belt Railway. The property of the gravel road company was not acquired subject to any easement in the public, or any one else, to construct a railroad across its gravel road. It was there held very properly that while the statute confers upon railroad companies the power to cross highways, and to do so without the payment of compensation so far as the public is concerned, yet that a gravel road company owning its road owns it as anybody else owns his property, and that private property can not be taken by any one without just compensation, nor, except in case of the State, without such compensation first assessed and tendered. Article 1, section 21, Constitution of Indiana. And it was there further held that the building of a railroad across such gravel road would be a taking of private property within the meaning of the section of the constitution referred to, on the ground that it was an incumbrance on the property. Manifestly that case has no application here because the gravel road company acquired its property in the gravel road, not subject to, but free from any easement or incumbrance of any kind whatever.


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