The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1898-01-04
RIGHTS IN THU STREETS.
The Law Courts Decision in an
Important Case.
AUDITING PROPERTY OWNERS
AND ELECTRIC RAILWAYS.

In this Case, the Property Owners Sought
way-The Court Refuses to Grant the
Prayer of the craftsmanship Text OF
the Opinion. Drawn by Judge Haskell
An important decision of the Law
Court, touching the rights of electric
railways and of the owners of property
aputtlns the streets through which the
railways seek to lay their tracks. has lust
neeh handed down. The case under con-
slderation is that Of James Taylor ct ais
against the Portsmouth, Kittery and
YORK Street Railway, in equity. The
plaintiffs, who are largely summer resi-
dents at York Harbor, in the town of
ORE, are the owners of costly residences
and property abutting upon the street or
public way through which the defendant
corporation were about to build it's rail
road. They objected to the construction
OF the road as proposed, and asked to
have the railway enjoined from the use of
the street.
| The cause was heard before Judge Wis
we'll at York upon an application for a
preliminary injunction. which was denied
and was reported to the Law Court for
final decision. BY this decision tho con-
| tention OF the defendants is sustained
and the plaintiffs bill is dismissed with
costs
The opinion is By Judge Haskell, and is
as follows:
Haskell, j. Bill in equity by the abut.
ting owners OF land on public way to
enJoin railway company from use of
the way because such use creates q public
nuisance
Nothing is better settled in this state
than that equity will not enjoin public
nuiaance on the application OF an indi-
vfdual either in his own behalf or in
behalf Of himself and others of like inter
est who either do or do not join in the
application, unless some special DAMAGE
to the individual, not suffered in COM
mon with the public generally. has been
sustained. Pom. Eq l849 and cases
cited. Equity supplements the law, and
there is no need Ut remedy, where there
arb no damages at law. Staples v. Dick
son, 80 Ne. 1862; Holmes V. Corthell, 80
Me. 81
The bill also seeks an Injunction be-
cause the plaintiffs are not only AUDITORS
but owners OF the fee of the way subjected
| to the servitudo incident to pu lie ways,
and that the defendants use is an addi-
tional seryltune for which they are en-
titled TO compensation that must first
be paid before the servitude may be en-
joyed; and this is the main controversy
in the cause. for, if the defendants use Of
the way be no q fditional servitEde, then
the plaintiffs right in the way and its use
| are merged with those of the public, and
the public alone by its laws must define,
| control and regulate such use
| What sery tnde then does the public ac-
| quire by the taking of land for n public
way? 1t is the right of transit for travel
ers, on foot and in vehicles of all descrip-
tions. 1t is the right of transmitting in
telligenoe by letter, message. or other
continuance suited for communication, as
| by telegraph or telephone. 1t is the right
TO transmit water, gas, and sewage for
| the use Of the pubic. 1t Is a public use
| for the convenience of the punlie, to be
moulded and applied as public necessity
| or convenience may demand d as tins
methods of life and communication may
from time to time require. Society
changes and new conditions attach them
selves. The change evolves new ways
of doing things, new methods OF com
| munication, new inventions for travel.
| When the way Is constructed the land
owner has his compensation. not only
| for the land taken, but for the damage
sustained, although usually benefits ere
conferred rather thhn injury inflicted.
| These damages are assessed 80 compensa-
| ton for surrender OF his land to the
public use for travel and transit, not only
by the methods then applied and for the
volume then existing, but for all time
and for such future use as the exlgenoies
t0f q
When the way has been created, the
public controls its use, and regulates Its
repair by laws that the legislature shall
enact. Under these laws the use must
be governed, for the people have right
TO say what use will best subserve Their
| interests. Tney laaYe now said thai ways
shall be main aalned, $50 as to pe sale q ed
convenient for travellers with horses.
| teams and carriages F." That is now the
criterion, and q use that infringes upon
That rule becomes an unlawful use. and
may be prob bited by public prosecution
That rule may be changed. for the public,
by law, may regulate the use Of its public
ways In suck manner as the leg slature
may think will best serve the public in
ter. ST.
This doctrine elbows the public to con-
troll the use of public way fol travel and
communication, as it may he pleased
from time to time. to do I he kind OF
use Via L4iay 10 pSfiDttt6i 10 VI Ao COIL
sequence 70 the abuttor. He must take
his chance with the rest OF the COM
lnnnity in which he lives. Soma cases
may seem to work hardships, but it is
bettar so, than to Inbarrass the conven-
! fence OF the people, and cripple and an
noy enterprises which the present ami
utUre may recognize as necessary for the
goo and happiness Of society.
No matser whether the way be used by
the lone traveller on foot or on his wheel,
by the two horae chaise or four wheeled
carriage, by the dray, cart or coach, or
by cars that may be permitted to run In
the street, whether propelled by beast,
steam, electricity or any other agency
that may bs discovered suitable for the
purpose. no MISTER whether the. vehicle
carries passengers or freight, or passes in
diligence along its continuance. All
these nre public use, and so long as they
do not infringe the Laws that regulate the
USE of highways, they cannot be prohibit.
ed either by the individual or public
prosecutor Ways ust be 'safe and con-
venient" When they arc not. by reason
of any incumbranca or p rmittsa use,
then ample remedy may he had by public
act on and such ineun brRDos or use may