St. Paul daily globe. [volume] (Saint Paul, Minn.) 1884-1896, 1886-04-06
Supreme Court.
DECISION.

George r. Newell, appellant. vs. The Mime.
apohs. Lyndale and Minnetonka Railway
company, respondent
Syllabus-The public easement in a public
street Is the public and common right to uss
the same for the passage of persons and
property and for purposes incidental to such
passage. The owner of the soil over which
street is laid has right to insist that
street shall be used for the legitimate pur-
poses OF its creation and existence, and in q
manner proper to effectuate the rame.
When street is being used for the pur-
pose legitimate in its generel nature) of the
passage of persons and property but obiec.
ton is made to the mode of use the question
OF rightfulness depends upon whether the
use opJected to is consistent or
lie use, in which every person
is entitled to share. This question of scon-
slstency or inconsistency is q question of
law. That Is 10 say, the facts of a given case
oelhg ascertalned, it is for the court to pro-
nounce upon their effect and to determine
whether manner of using a street COM
planned of is or is not, all things considered,
substantial infringement upon the common
public right
Held, in the application of the foregofnw
principles to the particular state of facts
round in this case and given in detail in the
opinion that the use of public street in the
city of Minneapolis by defendant with the
permission of the public authorities for the
SOuSlIuCllOu anu operation Oh It's railway
the use OF 1t in aid OF the street as passen-
ger street railway and not the imposition
upon the soil of the street of a servitude
auulllonal 10 the proper street ease
ment. And this, notwithstanding the
fact that said railway is operated by
steam and is used for the purpose of trans
porting persons from its terminus within the
city to point eighteen miles outside of the
city limits, as well as for transporting per-
sons from one point in the city to another,
and that out>i &c of said limits it is to some
extent operated as an OF binary commercial
railway. Held further, that plaintiff as
owner of the soil of the street having no
right to object TO defendants use Of the same
on the ground that it imposes a servitude adj
ditional to the proper street easement, and
the defendant being in possession $50 far as
necessary for the purposes of its railway Of
the street with the sanction and acquiescence
OF the public authorities, the plaintiff is not
in position to object that defendant in its
use of the streets and the operation of its
railway is acting ultra wires or thai it is in
vading the franchise of another corporation.
Order denying a new trial affirmed.
BERRY,.
DISSENTING OPINION.
1t seems to me that the maintenance and
operation of defendants railroad constitutes
servitude additional to and different from
the use for which the streets were acquired
in short, new use Of the streets not con-
templated at the time of their dedication
do not see that this road differs materially
from any ordinary "commercial'' railroad
except that 1t uses the entire length of the
street as its depot at which it receives and
lets off passengers.
As operated, it to certain extent in aid
of travel on the street. But this is a sec
ondary and incidental and not its main and
principal purpose. The doctrine of the opin-
ion will, IL seems to me, lead to the insidious
encroachment of any and all railroads upon
the public streets, by their simply adopting
certain slight and merely colorado changes
in their mode of operation. 1 therefore dis