Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1893-01-13
Judge Shea's Letter.
NEW YORK, January 3, 1893
POS West 4Bth Street.

NEW YORK, January 3, 1893,
2Oj West 4Bth Street.
Hon. b. d. Harris,-
My Dear Sir: - This mornings post
brings me your letter of yesterdays date.
| need no delay TO enable me to offer you
answers to the law questions you suggest:
for the general subject, in its various
phases, is familiar. to me; and practically
50 for many years. In its relation TO Brat
tleboro | have gwen it, out of mere inter
ested curiosity, a special consideration; and
long since discarded such a project as one
not suited TO the exigencies of our village
at this stage. 1t appeared to me not
prudent enterprise or Investment; and
without sufficient immediate benefit to the
people of BrattleborO to encourage them
generally to aid by becoming stockholders.
speak of Bratlleboro, of course, in its
actual circumstances of peculiarly attract
i've local advantages, as choice residential
village. Whenever it shall begin TO appear
that ii is changing its character into busy
centre of manufactures and growing trade,
and that the beauty of its village life is 10
be thus superseded, then commercial inter-
ests must he allowed to pervail. appre-
bend that it will, perhaps at no very dis
tant day, be with us as is the fate of many
Of our fair New England villages-all yield,
at last, to the insatiate desires OF material
progress; and when Brattlehoro is brought
TO that period then, but not till then, rapid,
comnodious and cheap transit will be
needed to bring distant parts of the inhab-
itated region into easy intercourse with the
business centres of the village. Let us,
however, not anticipate that which time
may make inevitable; but let us enjoy as
IL.
has bountifuly set about us.
As To the more practical questions Of rel
alive legal rights that you put, answer:
No such local railway can he constructed or
maintained upon any street without the
previous consent OF each owner Of the lands
fronting the route proposed. State legisla-
ton cannot directly confer the power upon
the railway corporation. The privilege to
acquire must not only be committed in
clear terms by positive statute-law and ade-
quate compensation thereby provided for,
but the attainment of the right itself must
be decreed in judicial proceeding brought
directly on behalf of the corporation pray
ing for the privilege. The adjoining owner
has an easement in the highway-and that
is property; an interest in real estate not
TO he burdenrd by new encumbrance.
The examples in railway exploits in the
city of New YOrk-which prOspered boldly
and lawlessly for a short time-offer no in
ducements for like aggressi0ns elsewhere
rather serve as warnings. The proprietor
ship of the highway OF the streets in this
metropolis Is peculiar; and 1t has given
occasions to ingenious persons to start nu'
merOus novel law-questions; especially Of
late years, on the part of surface and Of
elevated railway cOrpOrations-by which
the legal redress, finally adjudged to the
| owners, was DELAYED. The ancient rule
after too many avoiddnces of the proper is
sue, is now settled in compliance with the
mandate of the National consttutiOn-tha
the use of private property shall not b'
| taken without full compensation to be frs
paid; and then only for proper public OBJ
iects desirable for the public benefit. Thi
is a rule of law under the Constitution o
the United States, and the decisions of on
highest national courts. 1t applies L
rights of easement in our public streets a
firmly as it does to exclusively privat,
premises: and 10 that provision of the Con
stituton state legislation is subject. l
cOntrariwise, the legislative act is of m
force or effect. In view of the heavy out
lay which must be incurred to acquire tn
right to occupy the highway of the street
whether it be acquired by agreement o
by eminent domain-it is not probable tina
pru lent men will put money towards tn
promotion of the venture. have no Opin
ion to express about the amount of bushes
which The railway can expect, nor abou
profits to accrue from it.
1t would be extra hazardous for an
one to begin const netting before the RICH
to use the bed of the highway has bee
thus acquired: for each officer and stock
holder of the corporation, as well as tn
contractors and promoters, could be deal
with individually as trespasser The col
poration, till so entitled, would be withou
right to use the bed of a highway.
would have no more lawful right to do 5
than it would have to go in upon tn
grounds of private premises opposite.
would scarcely need an injunction to secur
redress-eXcept for the convenience {
avoiding recourse to physical persona