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public use of the highway by the usual vehicles of travel thereon.
The noise, the danger, the obstruction of its road-bed, all combine
to make the use of the highway by such a railroad incompatible
with its general use as a public highway. In such a case, then, the
railroad becomes a manifest burden on the soil additional to that
originally imposed by the public highway, which is a taking of
property for which compensation must be made. The question may
be considered as set at rest, now, in favor of the above views, by a
decided weight of authorities, to be found collected in 1 Redf. on
Railways (5th ed.) 314 et seq., and notes.

It is obvious however, that an ordinary horse railroad, in occupy-
ing a highway with its track, and making use of it with its cars,
produces a different result from that produced by such an occupa-
tion and use by a railroad operated by steam. By legislative direction
tlic track of the horse railroad is required to bo (as in this case) so
constructed not only as not to interfere with or prevent the passage
of other vehicles, but to be adapted to such passage both across
and along the rails. The cars are drawn by animals such as usually
draw the vehicles used on public highways. They carry along the
highway such passengers as otherwise would be obliged to pass over
it on foot or in other vehicles, and do so with no more injury in the
way of noise, jar or disturbance than would be occasioned by the
passage of other vehicles. The use, if it be novel and peculiar in
its form, is but a modification of the original use to which the
highway was devoted when it became a highway. The burden im-
posed thereby upon the land-owner, so far as the use of his property
is concerned, is identical in kind and no greater in degree than waB
originally imposed on the land when the highway was opened.

Digitized by


NOVEMBER TERM, 1880. 547

Citizens* Coach Company v. <^'amden Horse Railroad Company.

Such was the view taken by Chancellor Green in the case of
Ifhichman v. Paterson H, R. R. Cb., above cited, and he conse-
quently held that the occupation of a street by ii horse railroad was
not such a taking of property as would entitle the owner to com-
pensation. This view was mentioned with approval by Chief
Justice Beasley in State v. Laveracky 5 Vr. 201, and by Chancellor
Zabriskie in Jersey City and Bergen R, R, Co. v. Jersey City and
Hoboken R. R. Co., 5 C. E. Gr. 61, GQ, and was followed by the
present chancellor in Paterson and Passaic Horse R, R, Co. v.
Patersony 9 id. 158.

I do not hesitate to adopt this view, sanctioned by such authori-
ties and so reasonable in itself, and to conclude, that so far as the
owner of land under a highway is concerned, the use of the high-
way by legislative sanction by a horse railroad is not inconsistent
with the public use to which the highway was originally devoted,
and is not an additional burden imposed on the land, but only a
variation or modification of the public right and easement originally
acquired. Consequently such owner has no right to claim com-
pensation for such occupation of the highway.

While this view has been adopted by many courts, it has also
been controverted by judges of repute, and the decisions are conse-
quently very conflicting. No good purpose will be served by a
critical examination of tlio cases in this opinion. It is sufficient to
say that when analyzed the difference between the cases seems
to arise from the different views entertained by the judges in respect
to the practical question as to how far the use of the highway by
the railroad is incompatible with the use to which the highway was
originally devoted. And it may be remarked that when a conclu-
sion different from that to which I have arrived has been reached,
dissenting opinions have been expressed by judges whose opinions
are entitled to respect See Craig v. Rochester C. £ B, R. Co.,
89 N. Y. 404. The cases may be found collected in 1 Redf.on Rail-
ways (5th ed.), 317, and notes. In the late case of Attorney-Gen^
eral v. Metropolitan R. R. Co., 125 Mass. 515; s. c, 28 Am. Hep.
264, the Supreme Court of Massachusetts reach a conclusion in
accord with that to which we have arrived.

The discussion so far may seem perhaps to be somewhat beside
the real question in this case. But its applicability will be recog-
nized when it is understood that it is insisted that the conclusion
to which we have anived compels us to adopt a view of the case

Digitized by



Citizens' Coach Companj v. Camden Ilorse Railroad Companj.

adverse to the claim of the appellee. It is insisted that if the prop-
erty-owner be not entitled to compensation, on the ground tliat the
burden on his land is not increased by the use of the highway by a
horse railroad, but that such use is a mei*e modification of the public
easement before taken, then it follows that the public right must
continue and remain as before, open to every person. It is claimed
that a use of the highway which would exclude in whole or in part
a portion of the public is incompatible with such use as the high-
way was originally devoted to, and therefore that it cannot be con-
sistently held that any exclusive rights are vested in horse railroad

I am unable to see any force in this objection. When a highway
has been once taken for public use, the owner of the land retains his
title to the same subject to the publio easement. That public ease-
ment vests in the public. Uow far it extends it is not necessary
now to inquire. Whether it gives power for the laying of under-
ground or the building of elevated railroads need not be considered.
Ik IS sufficient to consider the easement as one of a right of passage
over the same by the public. This right however the legislature
may, it is well settled, control. It may control the road for the pub-
lic use; it may regulate the public use. Thus, it will be conceded,
changes of the grade of highways may be made by the public author-
ities, and the land-owner is entitled to no compensation or redress,
however injurious or destructive such changes may be, unless under
the provisions of such a statute as exists in this State. Hev. 1009.
The public may, without further compensation, lay sowers in the
highway. Stoudinger v. Newark^ 1 Stew. Eq. 446. Water-pipes,
it seems, may be laid within the highway as part of the original
burden, at the legislative will. Jersey City v. HudeoUy 2 Beas.
420. And in the well-considered case of Wright v. Carter, 3
Dutch. 76, the Supreme Court, Chief Justice Green delivering
their opinion, held that the legislature might authorize a turnpike
company to take a public highway and construct its turnpike
thereon, without making a compensation to the land-owner whose
lands were thus appropriated. The act, which was the subject of
consideration in that case, provided for the vacation of the public
highway by surveyors of the highways, and it appeared, in the
case, that it was so vacated for the purposes of the turnpike. It
also appeared that the turnpike company were authorized to chaigo
tolls for all persons travelling thereon. But the court held that

Digitized by


NOVEMBER TERJtt, 1880. 549

CitiieoB* Coacli CompaDy v. Camden Horse Railroad Company.

the public easement originally acquired over the land was not
thereby discharged, and although transferred to a private corpora-
tion authorized to exact tolls from travellers and empowered to
exclude all who did not pay toll to them^ remained yet the same
public easement, and was not; an additional burden on the land for
which compensation could be required. This decision it is unnec-
essary to vindicate or support in this court, because, although the
case of Wright v. Carter was afterward reversed (no opinion
appearing in the I'eports), it is understood that the reversal was
upon other grounds, and that the opinion of the court below, on
the point in question, was approved. 3 Dutch. 685, note ; State y.
Laverock, 5 Vroom, 207; Freeholders v. Red Bank Turnpike Co., 8
C. E. 6r. 93. But I think the decision may well be vindicated
upon plainest principles. The public easement requires for its
beneficial use the making and maintenance of a roadway. The
legislature, representing the public, may well determine whether
tliis shall be done by the public, and at its expense, or by a private
corporation. In the latter case it may give to such corporation a
right to exact reasonable tolls, to remunerate it for its outlay and
labor. The object is not the benefit of the private corporation.
That is merely incidental. The real design is the public good in
the use of the public highway. If that can be best served, in tlie
judgment of those representing the public, by making a turnpike
thereon, it may properly be done. Manifestly, then, no additional
burden is thereby imposed on the land-owner. See, also, Benedict
v. Goit, 3 Barb. 459.

I do not perceive therefore that the use of the highway by a
horse railroad company, if held to be exclusive of its use to some
extent by others, is thereby an additional burden on the land.
Nor can I see any inconsistency in holding that the land-owner is
not entitled to compensation, although the use is more or less
exclusive. Such use is, in fact, but a modification of the original
public use, established by the representatives of the public, to serve
the public purpose in the transportation of passengers upon the
highway. It is for the legislature to decide if this is a judicious
and proper mode of use for the public good. If it is so considered,
then the legislature may authorize it, and may limit and control
other public uses of the highway for that purpose. So long as the
use made is of the same kind as that to which the land was origin*

Digitized by


550 ^'^^^^ JKRSKY

CltizenB* Coach Company v. Camdeu Horse liailroad Coinpanj.

ally devoted, the owner cannot complain of any modifications or
limitations of it.

Let us next inquire what rights a horse railroad company acquires
by the legislation with respect to other persons making use of the
highway in passing and repassing thereon. Are its rights merely
those of passage back and forth upon the rails which it has oeen
permitted to lay upon the public highway? Or has it the power of
excluding others from the use of its rails, and if so, how far does
that power extend?

The grant in this case must be conceded to be of a franchise.
It includes the rigiit to lay down tracks, to run carriages thereon,
to carry passengers, and to exact tolls. Such a grant must be
construed as giving all the powers reasonably necessary to accom-
plish the manifest object. J/. <& E. R, R. Co, v. Sussex R. R, Co,y
5 C. E. Gr, 642. That it contains no words of exclusion is not
of consequence, for the grant of a franchise, by its intrinsic force,
is exclusive against all i)ersons but the State. R, £ D. Bay R, R.
Co. v. D. & R. Can, Co,, 3 C. E. Gr. 54G, 572. As was well said
by Chief Justice Shaw, in Commonwealth v. Temple, 14 Gray, 76.
*' The accommodation of travellers, of all who have occasion to
use them, at certain rates of fare, is the leading object and public
benefit for wliich these special modes of using the higliway are
granted, and not the profit of tlie proprietors. The profit to the
proprietors is a mere mode of compensating them for their outlay
of capital in providing and keeping up this public easement"
'•Every such grant must therefore be hehl to carry with it all in-
cidental rights which are necessary to its full use and beneficial
enjoyment. When the grant has for its object the procurement of
an easement for the public, the incidental powers must be so con-
strued as most effectually to secure to the public the full enjoyment
of such easement."

Upon such grounds horse railroad companies have been hold to
have certain exclusive rights, because Die exercise of such rights is
plainly necessary to the existence and beneficial use of the railroad.
Thus a horse car is held to be entitled to the exclusive use of ita
tracks, so that another vehicle in meeting it, is, contrary to the
usual rule of the road, required to give way and entirely remove
from its track. A similar rule is adopted when the horse car over-
takes a vehicle proceeding in the same direction, or encounters a
vehicle lawfully stopping in the street to deliver goods, etc. Com-

Digitized by



NOVEMBER TEKM, 1880. 551

Citizens' Coach Companj v. Camden Horse Railroad Company.

foonwealth v. Tempk, ubi sup. State v. Foley y 31 Iowa, 527 ; 8. c, 7
Am. Rep. 1G6 ; Hegan v. Eighth Ave, R. R. Co,, 15 N. Y. 380, and
other cases cited in the chancellor's opinion.

It has also been held that a horse railroad company may exclude
from its tracks the cars of another horse railroad company, though
given authority to use such tracks by the legislature, unless com-
pensation is required to be made. J". C. <£ Bergen R, R. Co, v. J.
a & Hob. R. R, Co., 5 C. E. Gr. 60 ; s. c. 6 C. Gr. 550 ; Brooklyn
Cent. K. R. Co. v. Brooklyn City R. R. Co,y 32 Barb, 358 ; Metrop.
R. R. Co. V. Quincy R. R. Co., 12 Allen, 262. Now the use of one
railroad by the cars of another company may be objectionable, be-
cause it is probable, and almost certain, that such use would be
incompatible with its full use and enjoyment by the company that
laid it. But it is not difficult to conceive of cases where it would
be quite possible to run cars on. other railroads, at least for short
distances, without interfering with the regular use of the road by
the owners. And so in the cases last cited, the ground of the
decision has been, not that there was an interference with the full
use of the railroad, but that there was such an occupation of the
property and franchise of the railroad company as was manifestly
a taking or appropriation of property for which compensation might
be required, and must be provided. Such was the view taken by
Chancellor Zabriskie in the case in 5 C. E. Gr. 66, above cited. The
iron rails of the railroad laid in the street he held to be the property
of the railroad company, not abandoned to the public or to every
use by those passing over the street. Such use as was incidental
and occasional was held to be justified by an implied permission
arising from the mode in which the track was required 'to be laid.
But such use was held not to include the use of the track for a
competing traflBc by the regular running, over the rails, of cars or
carriages adapted to the track and operated by a rival company.
When that case came into this court by appeal, no dissent was
expressed from the views of the chancellor. The decision here
virtually conceded their correctness, so far as the right of com-
pensation was dependent on a franchise and property in the rail-
road. But this court held that compensation for the appropriation
of the property had been substantially provided for in the legislative
scheme. See 6. C. E. Gr. 557.

Now if a railroad company have a property in their track laid on
the highway, and in their franchise of operating it for tolls, which

Digitized by



Citizens* Coach Company y. Camden Hone Railroad (jompanj.

entitles them to compensation for the ase of it by a rival car com-
pany^ on what substantial ground can it be denied the same right
when a like use is made of its track by coaches or omnibuses of
competing companies ? It is true that there may be a vast dififer-
enco in the degree to which the railroad company would be inter-
fered with, whether the interference proceeds from use by cars or
by coaches capable of being turned off the track ; but so far as the
property and franchise are concerned, the interference is identical
in kind. The use in each case is equally an appropriation of prop-
erty, which its owner may resist unless compensation be provided
for him.

It is urged, with gi*eat force, that there is an implied permission
to use the rails thus laid on a public highway, to every one lawfully
passing over the public road in the prosecution of a lawful business,
and who do not directly interfere with the passage of the 6ars. It
may be conceded, that by the legislative requirement that the rails
should be laid and maintained on the level of the road and of the
width of the ordinary wagon track, and by the company's acceptance
of such terms in the grant some permission to use the rails is implied.
It is a permission not emanating from the company, nor is it revo-
cable by it. It arises from the nature of the grant, and the condi-
tions under which the track is allowed to be laid. So far as its use
by persons driving for pleasure, on journeys, or in ordinary traffic
is concerned, such an implication may well arise. Such use is in
no way inconsistent with the grant to the company, and is not de-
structive to its business. It does not affect the company's rights or
franchise. It may wear its rails, but that is part of the compensa-
tion the company gives the public for its rights. But the implied
permission now discussed must not be extended further than is con-
sistent with the purpose and design of the grant to the company.
That purpose was to serve the public by a use of the public high-
way for public travel, whereby a cheap, convenient and regularly
recurring mode of carriage should be provided for all passengers.
For that purpose all the powers of the company were given. Un-
doubtedly a correlative duty devolved on the company to lay its
track and to run its cars for the benefit of the public. Under
such circumstances, the laying of the rails must be considered a
permission to use them only so far as such use is consistent with the
grant and its purpose. Clearly the railroad has not become part of
the street The sills, ties and rails are laid on the street, but they

Digitized by


NOVEMBER TERM, 1880. 563

C^tiiens' Coach Compaoj v. Camden Hone Railroad Companj.

are not part of it Thej coDstitnte a part of the machinery for
the transportation of passengers, and although placed on the street,
no more become part of it than the cars or carriages placed on the
rails. Brooklyn Cent R, R. Co. v. Brooklyn City R. R. Co., ubi
$vp. Retaining thus its property, no permission to use it will be
implied, if the use is inconsistent with the grant and its purpose.
And there can be no question but that its use for a business com-
petitive with that for which the company was created is inconsis-
tent with the grant, and tends to thwart its purpose and to destroy
the usefulness of the company to the public. Permission for a use
inconsistent with the grant will not be implied. On the contrary,
the implication is of an exclusion of such use.

The conclusion then is, that the horse railroad company, the com-
plainant below, acquired by the grant contained in the charter a
franchise and property in its tracks when laid, which is exclusive
of the use thereof by other persons or companies, in competition
with it in the business of carrying passengera for hire.

The cases cited in the opinion of the chancellor indicate an al-
most universal acquiescence in this conclusion, whenever this ques-
tion has been raised. In addition to those cases there may be cited
the case of Buffalo R. R. Co. v. Leighton, in which, upon a state of
facts identical with this case. Chief Justice Sheldon, of the Su-
perior Court of Buffalo, at June term, 1880, restrained the defend-
ant from using the tracks of the plaintiff's railroad in the business
of carrying passengers in vehicles of any description. The whole
subject is admirably summed up in a report to the legislature of
Massachusetts, made in 1865, and to be found in 1 Redf. on Rail-
ways, 328.

ITpon such a conclusion being arrived at, it is quite manifest that
the decree below must be sustained. Such an interference with a
franchise granted by the State, and exclusive in its character, as is
proved to have occurred in this case, may be restrained by injunc-
tion. R. & D. B. R. R. Co. V. 2). £ R. Can. Co., 3 C. E. Gr. 546.

It may be further remarked that any possible right which the
coach company may have to the incidental use of the rails in the
use of the street has been preserved by the decree and injunction.
No appeal was taken on the part of the complainant below, and I
have thought it unnecessary to consider the question presented by
this limitation.

Vol. XXXVI— 70

Digitized by


564 ^'EW JERSEY,

Citisens' Coach Company v. Camden Horse Railroad Companj.

BEA8LEY; G. J. The object of the bill exhibited in this case is
to prevent the use and obstruction of the complainant's horse rail-
road, in the city of Camden, by the Citizens Coach Company, tho
appellant in this court.

I have had no difficulty in settling in my own mind what the
riglits, under ordinary circumstances, of the horse railroad com-
pany are. The company was duly chartered by the legislature to
build their road, and to run cars and other vehicles upon it, and
to charge for the transportation of persons and property thereon,
provided that such charge should not exceed a certain maximum sum.
I regard this grant of power as giving to the corporation on which
it was conferred the exclusive right to the use of this road as a rail-
road. No ont; without its consent can put cars or other vehicle?
upon such track, for the purpose of using it as a railroad. And
further^ as a necessary incident, this company acquired the right of
way when overtaking or meeting ordinary vehicles.

On the other hand, I have no idea that by thus having laid this
track such company acquired the exclusive right to use the space
so occupied, or any part of such space. That space still remained
part of the public street, open, in its entire area, to the use, in the
ordinary way, of every citizen. Such citizens, under such condi-
tions, could use as a part of the street, either transversely or longi-
tudinally, the rails so laid, I would refer only so far to the authori-
ties as to say, that with almost entire unanimity, they maintain thia
right in the public as against such a chartered right as the one now
in question. And it is also obvious that it is upon this foundation
alone that the legislative claim, which has been several times Kinc-
tioned by the courts of this State, to appropriate the public streeta
to the use of these railroads, without making compensation to the
land-owners whose title extends over the property so applied, can
be justified. Nor does it seem to mc that any class of persons is
excluded from the enjoyment of this public right. A company or
a corporation engaged in a business competition with that of this
railroad company neither loses nor gains any thing by such a relation.
The entire street can be used in such a competition to the same ex-
tent, and in the same manner, as it is lawful to use it in the pur-
suit of any other buiness.

Such being the relative rights of the public and of the railroad
company, the question arises in this case whether, in the matters
here complained of, the rights of the latter have been infringed by

Digitized by


NOVEMBER TERM, 1880. 556

Citiaens' Coach Company v. Camden Horse Railroad Company.

the appcllan t. The respondent complains that the appellant has been
using its railroad in the transportation of passengers. The latter
avers that it has only been using the railroad in such business as a
part of the public highway as it had a right to do. It seems to
me that the question is solved as soon as it is determined what is a
use of the railroad and what a use of the highway. The peculiarity
of the use of the railroad consists in its continuity ; the vehicles
remain upon the rails from one terminus to the other, thereby
gaining the advantage of avoiding the impediments incident to the
uneven surfaces of ordinary road-beds. But when the railroad is
used as a part of the highway, there is no such continuity of use.
It is true that on such occasions ordinary vehicles will be run, for
various distances, upon the rails; but such use of them is accidental
and intermittent. I think it results from these definitions, that
when in the pursuit of any business, the wagons connected with
it are run, by way of preference and to the largest extent practi-
cable, on one of these railroads, such practice is a use of the rail-
road. Such use differs very slightly from that which tlie company
makes of its own road. It is true, that in a wide sense, such use
is a use of the public street ; but in the same sense, so is that of

Online LibraryIrving Browne Isaac Grant ThompsonThe American reports: containing all decisions of general ..., Volume 36 → online text (page 62 of 123)