The Corvallis gazette. [volume] (Corvallis, Or.) 1862-1899, 1885-09-25


left until it runs so close to the fence,
at the southeast corner of w. G.. Craw-
ford's handsome residence, that our
| friend Crawford dances around very
excitedly in consequence of the near
ness of railroad communication to his
Enclosures. The question therefore is
being freely discussed by cur citizens
as to what rights against citizens rail
road company acquires where city
council grants authority to such COM
pany to lay down and use their railroad
track in public street; and also what
rights if any city council has to grant
such rights to railroad company
Justice John F. Dillon in his valuable
work Oh Municipal Corporations says:
1878 In this section and the three
following we sum up the conclusions to
which our mind has arrived, after an
examination of all of the reported cases
upon the subject of railways in streets.
l AS respects ordinary railways,
operated by steam, and street railways,
operated by horses, Legislative authority
is necessary to warrant them to be
placed in the streets or highways. The
legislature may delegate to municipal
or local bodies the right to grant or re-
fuse such authority. The usual powers
of general nature in municipal corpo-
rations over streets are not sufficient
o confer upon them the right to au-
thorize the appropriation Of streets by
ordinary railroads, whose tracks are
constructed in the usual manner and
whose trains are propelled by steam.
But it is otherwise as respects street
railways; and the ordinary powers of
municipal corporation are usually am
Pile enough, in the absence of express
legislation on the subject, to authorize
them to permit or refuse to permit the
use of streets within their limits for
such purposes. But they can not, by
an Implied power, confer corporate
franchise or authorize the taking of
tolls This must come from the legis-
lature.
s SIG. 2. The weight of Judiciary
authority at present undoubtedly Is,
that where the public have only an
easement in streets, and the fee is re-
tanned by the adjacent owner, the leg
islature can not, under the constitution
al guarantee of private property, au
thorize steam railroad to be construct
ed thereon against the will of the adj
joining owner, without compensation
to him. In other words, such a rail
way, as usually constructed and opera
ted, is an additional servitude The
author, not disputing the Justice of
this view, or that it is the one best
supported by the judgments Of the
courts, is of opinion that it will admit
of fair debate, and deserves further
consideration whether the power of the
legislature over uses to which highways
may be put is really subject to this
supposed constitutional limitation AL
though the decisions AS to the right of
the legislature in such case to author
ize street railways without compensa-
ton to the adjoining freeholder, are
conflicting, it is believed that such rail
ways, as ordinarily constructed and
used, d. not create new burden upon
the land; and hence the legislature is
not bound to, although it may, provide
for compensation to the adjoining pro-
prietor.
s 577. 8. Where the fee of the
street is in the municipality in trust
for the public, or in the public, the
control of the legislature is supreme.
and it may authorize or delegate to
municipal bodies the power to author
ize either class of railways to occupy
streets without providing for compen-
sation either to the municipality or to
the adjoining lot owners. But where
grades are altered, or actual damage
will be caused by such use, the legisla-
ture ought to provide that the abutters
should be compensated for the injury
they will sustain.
If the above is the law on the sub.
ject then several important questions
would arise; lst as to whether "the
public have only an easement in the
streets, and the fee is retained by the
adjacent owner, or End, whether "the
fee of the street is in the municipality
in trust for the public, or in the public.
Whichever way the above questions
were determined, the 3rd query would
arise as to whether the legislature in
the city charter has given the city
council express authority to grant such
privileges to railroad companies, because
our courts hold substantially that a
city council can not exercise implied
power, except such as are necessary to
carry into effect the powers and privi-