The daily morning journal and courier., 1896-01-08

portant a subject of consideration as a change of grade or Of line. In deciding whether Jo approve 8 railway loc& ton, all the natural cons eQuences Uf the con strucuoa and operation Of the road up- on 1t must be taken into account. An electric railway in @ city street must throw the mA!n course Of ordinary trav- el upon those parts of the highway which are not covered by its tracks Such parts bsing thus subjected to greater wear and exposed to danger from ruts or broken paVements must often be improved or reconstructed in order 10 be adequate to support the in- crease of burden and this increase will be largely determined by the use of the | tracks and so to a great degree propor- 1 toned 10 the gross receipts which such | business yields.
 The finding shows that the company 1 is now running passenger trains con- slstlng of motor car With one or two | trail cars attached upon those streets in. which its tracks aIe laid, and that 1 the proposed extension, if operated in 1 the same manner, would be a serious in convenience to public travel. It shows also that the plan calls for an eNcava- 1 tion to depth of not less than six | feet for a considerable distance on that Ipart of Chestnut street upon which the new tracks were to be laid; and that this would compel the city to build a re- taining wall and put up guard rail to protect travel The city, as has been stated, held title by conveyance to an easement in a large portion of these three streets in trust for the public use.
 
 ter (section 35) to regulate any public work upon highways and was charged with the duty of grading and repairing all the city streets. II was thus made in respect to them the general guardian of the public interests and was protect ing these in protecting itself. Stam- ford Horse R. R., Cy., 56 Conn.,, 3S1. 395
 As to the reparation and maintenance of such, much of any highway as en- braced within their rails and a further space of two feet on each side of them the liabilities of street railway com- panies are regula ted. Section 6 of the act of 1898; but this does not affect the power of the municipalities to make suitable provisions under the other sec tions of the statute and by virtue of the general control over the city streets with which they are invested by charter, against loss to themselves or inconvenience to the public from charges afflicting other parts of the highway which are incident to the To- cation and use of the tracks.
 Municipal corporations possess not only the power expressly granted and shose which may be necessarily inn piled in, or incident to them, but also all which are indispensable to the at tainment and maintenance of their de- clared objects and purposes. One of the main objects of our towns and cities generally, and of the city of New Britain in particular, charter (section 20 is the maintenance of all highways within their territorial limits in safe and proper condition, and the provision of means for the payment of expenses
 thus occasioned. IL is Indispensable to the attainment of this object that all unlawful encroachment of erections upon highways should be restrained and all lawful changes in them care
 fully regulated for the public interest.
 Tn the case of steam railroads the legislature has committed this regu- iative power over their location to the railroad commissioners In the case of street railways the act of 1893 gives
 them though in somewhat different terms, to the municipalities whose in terests are directly affected and gives it in order that they protect those in- terests fully and effectively
 In the case before us, however, the terms of the city order read in con- nection with the finding leaves, it. 10 say the least, very questionable whe th- CT the annual payments were not rA- quiFed as a compensation for annual expenses that would be chargeable to the city in consequence of the opera tfon Of the entire railway system Of the company, the greater part of which was already in use and had been con- stgucted in compliance with the pre- vous order of the city, imposing con- ditions which the company had ac- |cepted by q formal covenant. The i'm position of any such condition in this proceeding would be beyond the au- thority invested in the mayor and com mon council. They could guard against an increase of municipal burdens from het charges in three more of the city SllcSL5 NIi4tl IL IS pIppOSGtA IO ll4eiEh , but an increase already occa stoned by the location in other streets was mat ter entirely foreign to the plan present. ed for their consideration and which they had no right to make the sub ject of any new condition or agree ment.
 It is not impossible that the city au- thorities acted upon the view that the mileage of the tracks that it was planned to lay in Chestnut, East and Jubilee streets would bear such a proportion to the total mileage of the company's railway system, that the specified percentages of the entire gross receipts from the operation of that syS- tenn (fneasuring as they must 10 @ large extent the business done upon it from time to time) would be only g fair equivalent for the new expenses to which the city would be annually subjected on the maintenance and rep aration of these three streets when the railway should be in use upon them.
 l If it was clear that a. fixed sum had been assessed We should think there was no error. The most natural con- struction of the finding, however, would seem to be that which makes it up- thold the imposition of this condition or the ground that it would provide just | compensation, as the city might here