Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1893-01-13
The Street Railroad Question
Once More.

In his letter printed elsewhere ex-Judge
George Shea, of Brattleboro and New York,
makes an interesting contribution to the
discussion of our Brattleboro electric street
railroad question. Judge Shea, it will be
seen, takes the positive and unqualified
ground, as a matter of general law, that
such road cannot be built without the
consent of all the real estate owners on its
line, and without paying to the abuttors
whatever damages are sustained on account
of its construction. His statement in this
respect is very clear and explicit.
We take it, however, that there will be
radical disagreement with Judge Shea's
view on this point, on the part of other
good lawyers. The view commonly held is,
that the highways having been condemned
and paid for for public highway purposes,
they belong to the public for legitimate
uses of public travel No stipulation is
made as to whether the travel shall be on
foot, on horseback, by carriage, by Omni-
bus or stage-coach, or by the modern and
improved method of cars drawn by horses
or propelled by electricity. If an electric
railroad cannot be built without the con-
sent of all the land owners on its linz, and
without payment of damages to them, then
no kind of a street railroad could be built
without such consent and payment. This,
we presume, is to be taken for granted.
That street railways are within the uses
and purposes of streets and highways, and,
when authorized by the legislature may
be constructed and operated without ad-
ditional compensation to land owners, and
cannot be prevented by them, has been
| held by the supreme court of Massachu
sets in Commonwealth VS.. Temple, II
Gray's reports, 80; by the court of appeals
in People VS.. Kerr, p New York reports,
1SS, and in several other cases; and con-
ceded by the supreme court of Colorado in
Denver VS.. Bayer, 23 American Law Reg
lister, 440. The same has been held by the
supreme court of the United States, in
substance, as to any railroad, in Railroad
Company VS.. Baptist Church Ia case which
arose in Washington, los United States
reports, 317 and seems to have been so held
by the supreme court of Maine, % Amer
ican Law Register, 454. And 1t has been
so held by the supreme court of Vermont
as to other structures, West IS. Bancroft,
81 Vermont reports, 367.
That lawyers may not find legal grounds
on which to contest the construction of
street railway in Brattieo ooro, we do not
presume to say, but the decisions of the
courts certainly seem to be in the direction
of the view here submitted. 1t may be
said, in passing, that, as We understand
the natter the decisions of the New York
courts, giving damages to real estate own
ers on account of the elevated railroads in
New York city, have been for special and
peculiar injury to property, as in shutting
off light, preventing free entrance, etc.
The mere fact that an elevated road passes
by a mans property does not give him
ground for damages.
To us the question seems to be whether
1t is desirable or eXpedient to have a street
railway in BrattlebOro, and not as to wheth-
er there is a legal right to build it. 1t may
be taken for granted at the start that Mr..
Barrett's work as the protector of the en-
terprise is not labor of love. He unmis-
takably hopes to make some money out OF
1t. We cannot imagine Brattleboro people
| taking stock in the enterprise, organizing
company, and allowing the construction
of the road to begin and go on, without
first knowing in an assured way Mr.. Bar.
rett's standing and responsibility and the
backing which he represents. We cannot
imagine BrattleborO men putting money
into the enterprise without knowing how
q and where the road is to be built, and with
= out it being made positively certain tha
its management is to be in the interests o
4 the Brattleboro community. We repea
1 what we said in former article, that W,
S should esteem it a calamity to see $4,000
A or $15, 900 of BrattlebOro money put int
= the prOject-enough for starter-and
: later on find the road come into the posses
8 sion of outside capitalists who would rur
r 1t in any way which suited their own in
n terests.
e We hold on the one hand, that this en-
e terprse should not be calmly brushed on
l. side as thing impractcable and improba
e BILE, simply because some people oppose II
/ and on the other hand that its constructor
J. should not be attempted without full an
IS complete understanding of everything cor
: nected with it, without the effect upon tn
n town and its business being carefully cor
d sidered, and without an assurance that,
IS built, the road is to be operated by BrattlC
d boro men for the benefit of Brattleboro. TIL
Is question whether 1t would pay is for tn