Pittsburg dispatch. [volume] (Pittsburg [Pa.]) 1880-1923, 1890-06-30

erty, The streets are dedicated to public use
and he has certain special rights as an aputC
ing owner, but / cannot see how wire run
through the air above the street can De salo 70
be taking OF injuriag or destroying MS prop
erty. But
ANOTHER QUESTION ARISES
in reference to the posts placed in the GROUND
for the support of the wires by means OF WHICH
the cars are moved. 1t has generally peen ur-
derstood in Pennsylvania that the abuttlng
owner had fee to the middle of the adjoining
street, and that the public only has rlgnt Oh
passage or easement over it. Chambers versus
Furry, Yeates l6. Lewis versus Jones' ISL
Pa. St., 1856. But this must not be taken III
its literal sense especially in towns and cities
What might be considered an invasion Oh
private right, SO far as the use of highway Is
concerned, might not be SO in city. Thus
city, by virtue of its general authority, may
build sewers, and the adjoining proprietor Is
not entitled to have damages assessed, as 1oI
new use servitude, Fisher versus Harms
burg I'd Grant 29l; Cone versus hartlorH,
S Conn. 1863; Traphagen versus Jersey City, 20
n. ]. Eq. 2O6; Michener versus Philadelpnla.
lis Pa St. 5S5. In such case the street Is NOT
only used without compensation TO the aoJoih-
ing owner, but he is compelled TO pay ior tne
use OF the sewer. So the right TO lay oown gae
pipes in the streets as given by the Legislature
to municipal authorities without allowing COM
pensatlon, has been recognized py Ine courts,
and while il has not been expressly ruleo IN
PENNSYLVANIA that know OF. Justice Sterrett
in Sterling's appeal, while deciding that gas
line was an additional burden which en-
titled the owner to damages IN tne
country said: las to the streets and alleys In
cities and boroughs there are reasons why
different rule to some extent should prevail"
Such has been taken as the law in cities py
common consent l do not think that anyone
ever heard of a suit in Pennsylvania to recover
u alxy Inv rrlnn mo q
gas pipe along the streetin front of his premises
under municipal authority So with water
pipes, awning posts, fire plugs and lamp posts
These all more or less infringe upon the alleged
absolute right of an owner of the soil, and are
not necessary to accommodate public travel
nor even consistent with the public right to an
unobstructed passage way. And 1t may be now
taken as settled that the owners rights OF
abutting property are subject to the paramount
rights of the public, and the rights OF the pubic
are not limited to a mere right of way. but ex-
tend to all beneficial legitimate street uses as
the public may from time to time require.
UNDER MUNICIPAL CONTROL.
The use of the streets for sewers, tunneling,
public cisterns, gas pipes, water pipes and
other improvements necessary Tor the comfort
and convenience of the citizens OF cities and
towns. so long as they do not substantially
interfere with the use Of the streets as such,
appear to be under legislative and municipal
control Dillon on Municipal Corporations,
section 699.
The case of Taggart versus The Newport
Street Railway, decided this year by the Su-
preme Court of Rhode Island, is directly in
point, and if good law, covers the case In
hand.
My own impression is that the use of poles
wIres and the oGher necessary appliances such
as proposed being used by plaintiffs, is not in
any respect q greater interference with the
ownership of the adjoining property owners on
a street than the use of streets for hre plugs,
horse troughs and lamp-posts, which have long
and generally been recognized as within the
power and control Of the city government
Recognizing the right of the Legislature and
city authorities to authorize the building OF
street railways upon streets Of city without
compensation TO property owners because 1t is
a means of public transportation and accom-
modatlon, the necessary and proper apparatus
for moving them must be allowed to follow as
an incident, unless there Is something illegal
in its construction or use. The proposed con-
struction here is no more illegal by reason of
its effect upon the owners of property SO far as
actual interference with their rights to use the
streets is concerned than SO many lamp-posts.
and if compensation could not be compelled
for the ground taken by them, neither should
it be for the posts supporting the wires in this
case.
Thus far have assumed that the charters of
defendants gave the right to defendants to ex-
ercise the powers to construct, maintain and
operate a street railway on Negley avenue. But
point that under the acts of Assembly cited
defendants have no right to build or operate
road, because no power is conferred thereby to
do so. His argument is that no such power is
expressly given by the act of 1859, and cannot
be implied. But with this am
UNABLE TO CONCUR.
The act 18th May, 1883, is entitled an act for
the incorporation and government of street
railways in this Commonwealth and provides
that any number of persons not less than five
may form a company for the purpose of rcon-
structing maintaining and operating street
railway on any street or highway upon which
no track Is laid or authorized to be laid, etc,
with the privilege of occupying so much of the
street used OF authorized to be used by any
existing charter, as is hereinafter provided. for
public use in the conveyance of passengers by
any other power than by locomotives"
This leaving out restricted matter OF location
would read: IA company may be formed for
the purpose of constructing ETC., street rail-
road for public use in the conveyance of pas
sengers by any other power than by locomo-
tive" The method of forming such company
is there provided and when incorporated it was
to have the power and privilege of succession; to
sue and be sued; make and use seal and hold
real and personal estate. Section Is provides
no street passenger railway shalt be incorpo-
rated under this act within the limits of city
without consent of the local authorities ETC.
Section l6 requires the construction. etc.,
to be commenced within one year after the
consent of the proper local authorities etc.
1t is true that the act does not say the cor.
poration shall have the right to build, main
tain and operate railroad, but it does say
company may be formed under the provisions
of the act for that purpose, and to suppose the
Legislature authorized company to be formed
for a specific purpose and then say when formed
it had no power to carry out the purposes of its
creation, because they did not declare in SO
many words that they should have the power
to do, the very purpose for which it Gre
ated, is a refinement of Interpretation i do not
think warranted by either reason or authority.
DEFENDANTS RIGHT TO PROCEED.
To my mind the power in the Craig Street
Railway Company to construct and maintain
railroad on compliance with the terms of the
act under which it is incorporated is clear, and
that the defendants have shown legal right
to proceed and construct the railway contem-
plated by them unless the failure to provide
means by which the plaintiff may have such
damages as they may sustain assessed and paid
or secured in advance renders the act uncon-
stitutional. Upon this question am not free
from doubt, but the decided inrlinations of
my mind is that the act is not unconstitutional
for that reason, because the use of the streets
for the purpose of applying motive power in
the manner proposed is not such a new use as
IN cities should be treated as outside the
proper purpose for which streets will
be held to have been originally
versus Newport Railway Company before
cited is exactly in point The case presented
by plaintiffs is certainly not so clear from doubt
that Chancellor should grant any Injunction
summarily stopping a great public improve
ment before final hearing, more particularly
because If the position taken by plaintiffs is
correct and defendants have no legal right to
take possession of the street as they are about
to do, a common law action will compel them
to pay all damages arising to plaintiffs and
thereafter equity would probably afford a com.
plere remedy by which the wrong done them