The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1898-01-04

the numerous courts of this country with
varied results. 1t will not be profitable
to review them, for we think best to de-
clare a doctrine best suited to the con-
venIenee of our people and most con-
sonant with the laws under which they
live. We have persistantly maintained
the right OF ''free fishing and fowling,"
free and unobstructed navigation OF our
rivers the free taking of ice upon them,
the right of eminent domain over and in
the waters OF great ponds, and we now
assert the right of the people to control
the use OF their public ways as shall best
meet their necessities, without vexat1on
from the land owner, whenever growth
and discovery show the convenience OF
applying new methods for public transit.
l1eo public way once constructed be free
Tor the public use and control as it may
choose. Let it be free as the ocean is free,
as our rivers are free, and as our great
ponds and lakes are free for the use of all
the people.
Ii the reverse of this doctrine be held,
the numerous street railways now operat-
Ing in our state would be crippled, If not
destroyed. Ii every abuttor could enjoin
their operation unless his damages were
paid, there would be no end of litigation
and confusion. Moreover, it is now too
late to invoke such doctrine. We have
already decided that street railway,
pAOBoA4Od ~ 0l0CUIiClUS; OE6'tbtB llO htltii-
tional servitude. Briggs v. Lewiston and
Auburn Horse Railroad Co., 70 Me 363
Relying upon that doctrine, electricity
has become the principal motor for all
our streel railroads, aud it would be un-
just to now overturn it, If we were in.
clined SO to Go. On the contrary, we
deem it best, and most consistent with
our laws and polity to affirm it, and fur
ther that neither motor, nor kind of
| traffic to be engaged in makes any differ
eDoe, SO long as the use does not violate
the requirements of che statute, concern
ing which we arc not called upon to de-
oide at tho instance OF an individual.
Now 1t may be said that the location of
street railway, by an authority Of the
legislature should give it a vested right
to remain after the discoDtinuance of the
way. But it must be remembered the
legislature only gave right to share the
public easement, and when that shall be
extln2uished, all the granted right will
be extinguished. 1t may be that the act
OF the Legislature granting q share IL the
easement gives vested right therein,
that can only be extinguished by the con-
sent of the grantee, or by authority of the
legislature granting it. or this we have
no occas on TO decide.
The doctrine of this opinion must not
DO extended too far. Perhaps the fair in
ference will be that the taking OF land for
q way only contemplated surface transit.
We do not decide otherwise. When eievat-
eel systems OF ransit are introduced the
peTmanence OF their structure and the an
noyanoe and injury may perhaps seem
fairly to contemplate further servitude.
Of this, too, we have no occasion to de-
CT
must be remem bered the use of ways
for street car transit can only he enjoyed,
but by the act Of the people themselves.
~, k,ri 11sk,, l.
Gheir use with others who aid in serving
the use common too both, it is public
use after all. The public grant the privi-
lege and control its enjoyment. The ex-
erclse OF such power best serves our peo-
pie, who are Intelligent enough to IN
derstand their necessities and comforts.
But the plaintiffs say that the charter
OF defendant company is void for consti-
tutional reasons. This contention is not
open in this cause. The defendant is
acting under charter from the legisla-
ture. 1t Is q de faoto corporation at least.
The STATE only can inquire into tho va.
lidity of the charter. But If the contan-
tlon were open to tho plaintiffs, it could
do them no good. They have implicated
joined no other persons. II it has no COR
porate existence, who shall bs enioined2
The only prayer in the bill is that defend
ant corporation be enjoined. If there be
10 corporation, how can 1t be enjoinel2
Suppose plaintiffs had sued dead man,
could they have reiief?
1t il also conten:ied that the proper ap-
prevail Of the location Of the ROAD has not
been obtained from the municipal officers
of the town. We think the evidence
shows the reverse. There is no occasion
TO review it.
How. 6hen, does the cause stand? The
plaintiffs as AUDITORS and owners of the
fee of tho why. have suffered no iamag.
from the deiendants' occupation in com
mon with the public of some share In the
easement aeguired by it upon the creation
OF the way, so hat they have no cause
for complaint on account of the construc-
tion of defendants railroad, net common
to the public in general, and, therefore,
have suTfere6 10 special damage, and can
have neither an action at law or RELIEF in
equity.
Bill dismissed with costs
Con nrriDg; Peters, G. j., and White
house, Stroub and Savage. -.