Cincinnati daily press. [volume] (Cincinnati [Ohio]) 1860-1862, 1860-04-06


they will spare no pains to render publica-
ton which makes its appearance under their
auspices as comFtete in every respect as pos
sible.
To single subscribers by mail the price of
the WEEKLY PREss will be one dollar per
annum, payable invariably in advance.
In order to encourage the formation of
clubs, a liberal deduction upon the above
price will be made, the terms of which will
be announced in future.
More Upon the Street Railway Question.
The Gazette, in its notice of the decision of
the Superior Court in the railway case, to
which allusion was made yesterday, remarks
that Thereby the important principle was
established that the City Council has no right
toauthorize the use of the streets to the in
terruption of business or The injury of pro-.
perty." That neither the City Council nor
any other party has the right to authorize the
use of the streets to the interruption of the
business of the same, is proposition which
is very easily sustained, and needed no estab-
lishment by the Superior Court of Cincinnati;
but that any use of a street for public pur-
poses which operates incidentally to interrupt
the business of such as occupy the property
bounded by it, or to reduce the market price
of that property, should for that reason alone
be prohibited, is more than doubtful. The
expression of the Gazette is equivocal and
the same want of precision appears in the
opinion of the Court; whether intentional
or otherwise, it is difficult to say. His Honor
Judge Storer does not seem to have had any
very distinct notions upon the subject; in
which respect he is well initiated by our
contemporary.
The Court in its decision, takes some pains
to show that, under the laws of Ohio, the
city corporation is the trustee of the public,
holding the technical fee of the streets, and
vested with the control of the same. The
legal agent of this trustee is the Council, and
it is in this manner that the Council comes
in to have voice in respect to the mode in
which the streets shall be occupied. Here
the question arises, what is the extent and
character Of this trusteeship and its CORE
spending agency? What may it do, and
what is the limit of its authority? The ques-
tion, so far as we have to do with it, relates
to the manner that thoroughfares already in
existence shall be used or occupied.
- The pubic-which, with the holders of the
hand upon each side constitutes the proprie-
tary of all the rights, titles and interests that
attach to q highways the Whole people:
whoeyer travels, and by whatever device or
mode of conveyance. Prima .fdcie, its title
to choose its own means of transit and trans
portation, so that IL confines itself to the
limit of the thoroughfare, is absolute. Ifone
person or part of the public monopolizes, or
so enjoys as to obstruct or hinder other per-
sons or parts of the same, the latter has a
right to redress at the hands of the Courts,
who are empowered to interfere for the pur-
pose; but in this connection, they who reside
or do business upon the street, have no rights
superior or different from others. To hinder
their use of the street as part of the public,
and their. use of it as mere property -holders,
are two widely different things.
Now, that which the City Council can not
do is to permit street to be obstructed or
perverted. Ifthe occupation of the street by
II railway company is such an obstruction as
materially and permanently to reduce its
value to the public at laTge-to inconve-
nience upon one part without convenience
OF equivalent value upon another-or such
Per0erston as to destroy its character as a
general highway, the Council, as agent for
the trustee of the proprietors, has no power
to allow such occupation. On the contrary,
if the occupation in the manner alluded to
operates neither to obstruct nor to peryert,
1t does not seem to us that it has any legit-
mate power to forbid it. The. manner in
which the public shall occupy its own, is-so
it is rational TO believe-for itself to deter
mins otherwise every new improvement in
transit or transportation will need a system
OF streets and highways for its especial use
a thing which would render innovations upon
any of the common modes of conveyance i'm |
possible.
If individuals or companies in pursuit of
interests of their own, whether with or with
out the permission Of the Council, do so oc-
cupy public thoroughfare that obstruction |
or perversion may be predicated of their oc- |
~Nf~ANJb 'HS AOmOuy 10 Win JHe courts, at |
the suit of the individual or party damaged |
thereby, whether or not he be holder of |
And it is in this way, and not by |
an appeal to the tribunals to forbid pro- |
posed innovation on the ground of vague |
fear they may be Inconvenience by it, that
men are to seek redress Any other mode of |
proceeding is to PREJUDICE the case; and to |
place the Courts in the unlovely position of
servants to the prejudices of that class Of |
people whose constitutional fears of change |
render them averse to every species of inn |
provement.
1t would be well if the Superior Court
would, at some favorable opportunity, take |
it upon itself to define with more exactness
that ultimate right of supervision" which
remains to the original dedicator, and passes
to all in privity with him." In the present
case, it has very formidable appearance.
constituting, as it seems to do, the tenants OF
the property bounded by street the judges, |
In the light of their own particular interest,
of the propriety of the modes of locomotion |
ia nWIu NNaa. l. n