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Full text of "A treatise on the law of municipal corporations"

THE LIBRARY 

OF 

THE UNIVERSITY 
OF CALIFORNIA 

LOS ANGELES 

SCHOOL OF LAW 
Dill Ot 

L-eiicer-IViuss Co. 



A TREATISE 



ON THE LAW OF 



BY 
HOWARD S. ABBOTT 

OF THE MINNEAPOLIS BAB 

LATH SPECIAL MASTER IN CHANCEET UNION PACIFIC BAILEOA0 BHCEIVERSHIP; 

MASTER IN CHANCERY U. S. CIRCUIT COURT; LECTURER OK PUBLIC 

AND PRIVATE CORPORATIONS AND CIVIL LAW* 

UNIVERSITY OF MINNESOTA 



IN THREE VOI/UMES 



VOL. Ill 



ST. PAUL: 

KEEFE-DAVIDSON COMPANY 
1906 



COPYRIGHT, 1906, 
BY 

HOWARD & ABBOTT. 



TABLE OF CONTENTS, 



CHAPTER I. 

INTRODUCTORY AND DEFINITIONS. 
(For complete analysis see Vol. I.) 

CHAPTER II. 

CORPORATE LIFE AND EXISTENCE. 

(For complete analysis see Vol. I.) 



CHAPTER III. 

LEGISLATIVE POWER OVER CORPORATIONS AND ITS LIMITA- 
TIONS. 

(For complete analysis see Vol. I.) 



CHAPTER IV. 

CORPORATE ELECTIONS. 
(For complete analysis see Vol. I.) 



CHAPTER V. 

THE POWERS OF PUBLIC CORPORATIONS. 
(For complete analysis see Vol. I.) 



CHAPTER VI. 

PUBLIC REVENUES; THEIR COLLECTION AND DISBURSEMENT. 

(For partial analysis of this chapter see Vol. I, and its completion, Vol. II.) 

v 



TABLE OF CONTENTS. 

CHAPTER VII. 

GOVERNING BODIES. 
(For complete analysis see Vol. II.) 



CHAPTER VIII. 

PUBLIC OFFICE AND OFFICERS. 
(For complete analysis see Vol. II.) 



CHAPTER IX. 

PUBLIC PROPERTY. 

I. ITS ACQUIREMENT. 

(For complete analysis of this subdivision see Vol. II.) 

II. ITS CONTBOL AND USE. 

(For analysis of this subdivision prior to sections herewith, see Vol. II.) 

835. Railroads in streets. 

836. Classification of railroads. 

837. Authority for occupation of highways. 

838. Power indirectly exercised. 

839. Authority as dependent upon abutter's consent. 

840. Abutting owners compensation for use of highways by railways. 

841. The use of highways by steam railways regarded as an addi- 

tional servitude. 

842. Right to compensation as dependent upon abutter's interest in a 

highway. 

843. Abutter's rights when fee is in the public. 

844. The use of highways by street railways. 

845. The contrary doctrine. 

846. Reasons for the difference in the rule as applied to steam and 

street railways. 

847. Abutting owner. When entitled to compensation. 

848. Elevated railroads. 

849. Other street railroads. 

850. General summary. 

851. Railways in streets. 

852. Construction of grant of authority. 

Authority for use of streets. 

853. Right to impose conditions for use of highways. 

Tickets and transfers or fares. Police regulations. 

854. Conditions based upon the police power. 



TABLE OF CONTENTS. yn 

855. Conditions imposed as revenue measures. 

856. Conditions having for their purpose the maintenance of the 

highway in its original condition. 

857. The duty to restore and repair. 

858. The duty to improve. 

859. Highway crossings. 

860. Duty to restore and maintain. 

861. Restoration of highways. The duty to construct overhead or 

underground crossings. 

862. Highway crossings. Right of the public corporation to make. 

863. Same subject. Duty to maintain and repair. 

864. Temporary obstructions. 

865. Concrete illustrations of temporary obstructions. 

866. Limitations upon power of regulating temporary obstructions. 

867. Recurring, temporary obstructions. 

868. Manner of use; further considered. 

Interference with abutter's rights. 

869. Use by abutters. 

870. Miscellaneous uses of a street regarded as obstructions. 

871. Miscellaneous uses of a street regarded as a nuisance. 

872. Regulation of traffic. 

Road law. 

873. Stock ordinances. 

874. Use of highways by public authorities. 

875. Use of public buildings or public facilities. 

876. Protection of public property. 

877. Removal of obstructions. 

878. Removal of nuisances. 

Definition of a nuisance. 

879. Authority for removal of obstructions or nuisances. 

The right as vested in an individual. 

880. Mode of removal. 

Removal of natural obstructions. 

881. Criminal proceedings. 

882. Public highways or grounds must be legally established or ac- 

quired. 

883. Prescriptive rights. 

884. Legalized obstructions. 

885. Abuiter's rights. 

886. Use of public highways by agencies distributing water, power or 

light and furnishing telephone and telegraph or transporta- 
tion services. 

887. Control of highways by public authorities. 

Abutter's rights. 

888. Use of highways for above purposes. 

889. Legal right to supply light. 

890. Direct authority necessary. 

Construction of authority. 



v iii TABLE OF CONTENTS. 

891. Mode of establishing municipal plant. 
Power to purchase or erect. 

892. Operation of plant. 

893. Rules and regulations. 

894. Other restrictions upon power to acquire and operate. 

Plants for the supply of water and light. 

895. Sale or lease of property. 

896. Use of highways by private persons. 

897. Source of authority. 

898. Same subject continued. 

Federal acts relative to post roads. 
Local consent for grant of authority. 

899. Mode of grant. 

900. Grant subject to regulation. 

Power of public corporation ~to cliange grade of highway o' 1 
otherwise improve it 

901. Acceptance of the grant. 

902. Construction of grant. 

903. Same subject. 

904. Exercise of the grant; the element of time. 

905. Same subject. Manner of exercise in respect to time and place 

Place of exercise. 

906. New streets or extension of corporate limits. 

907. Change of commodity furnished. 

908. Grant of license upon condition. 

Consent of abutters. 

909. Exercise of the grant. 

910. Replacing improvements. 

911. Destruction of or injury to trees. 

912. Regulation by public corporations, extent and character. 

913. Character of right; regulation. 

Delegation of delegated powers. 

914. Subways. 

915. Rates for service rendered or commodities furnished. 

916. The right to change rates. 

917. Contract obligation. 

918. Assignment of privilege or license. 

919. Revocation or impairment of the grant 

Grant of same privilege to others. 

920. Forfeiture of grant. 

921. Licenses or privileges of an exclusive nature. 

922. Legal power to grant. 

923. Same subject continued. 

924. Must be express authority. 

Not included within general grant to provide for comfort and 
welfare or regulate highways. 

925. Manner in which granted. 

Must expressly appear. 



TABLE OF CONTENTS. IX 

926. Grant strictly construed. 

927. Nature of grant or license. 

A federal question. 

928. Impairment of contract obligation by grantor of exclusive license 

or privilege. 

929. Forfeiture or revocation of grant or license. 

930. Assignment of exclusive privilege or license. 

931. Grants to street railway companies. 

932. Option to purchase. 

933. Exclusive contracts for supply of commodity. 

Execution of contract. 

934. Additional servitude; subject further considered. 

III. ITS DISPOSITION. 

935. Power of disposition. 

936. Limitation on power of disposition. 

Statutory authority. 

937. Mode of disposition; sale or lease. 

Manner of sale. 

938. Disposition by gift 
939'. Vacation of highways. 

Occasion for vacation. 

940. Manner of vacation. 

941. Petition. 

Notice and hearing. 

942. Vacation; when effective. 

943. Damage to abutting owner. 

944. Evidence. 

945. Abandonment of highways. 

946. Prescriptive title. 

947. 'Reversion. 

948. Collateral attack. 

949. Revocation of dedication as affecting right to vacate or abandon. 



CHAPTER X. 
LIABILITY OF PUBLIC CORPORATIONS FOR NEGLIGENCE. 

950. In general. 

951. Negligence; definition. 

952. Some essentials of actionable negligence. 

Measure of care. 
Damage. 
Proximate cause. 

953. Liability of the state or sovereign. 

954. Public corporations defined and classified. 



TABLE OF CONTENTS. 

955. Duties performed by each. 

(a) Quasi corporations; liability. 

(b) Municipal corporations; liability. 

956. Character of duty. 

957. Character of duty continued. 

958. Municipal duty; construction of drains or sewers. 

959. Plan of work. 

960. Construction. 

961. Maintenance of sewers and drains. 

962. Governmental duties; maintenance of government. 

963. The public safety. 

Fire department. 

964. Destruction of property by mob. 

965. Destruction of property for public purposes. 

966. The public peace. 

967. The public health and safety. 

968. Public education. 

969. Charities and corrections. 

970. Failure to pass or enforce ordinances. 

Liability for enforcement of ordinance. 

971. Ultra vires acts. 

972. Nature of duty. 

973. Respondeat superior. 

(a) Nature of duty performed. 

(b) Quasf corporations. 

974. Liability for acts of licensee. 

Liability for duty imposed on officer. 

975. Independent contractor. 

976. Defense of fellow-servant. 

977. Surface waters. 

978. Nonliability for exercise of discretionary or legislative power. 

979. Liability imposed as result of negligence. 

Natural watercourse. 

980. Notice of injury or damage. 

981. Damages. 

982. Liability in respect to highways. 

983. Of quasi corporations. 

Exceptions. 

984. Of chartered municipalities. 

985. Exceptions to the above rule. 

986. Reasons for different doctrines. 

987. The duty to construct or improve. 

988. Character of duty in respect to defective highways. 

Duty; when absolute. 

989. Basis of liability. 

990. Character of highways to which duty applies. 

Discontinuance of highway. 



TABLE OF CONTENTS. 

991. Used portion only. 

What portion fust be improved. 

992. The duty; to whom due. 

(a) Unmanageable horses. 

(b) Violation of ordinane. 

993. When due. 

(a) Special injury. 

(b) Proximate cause. 

994. Same subject; when imposed by statute. 

995. Defect occasioned by private persons. 

996. Liability arising from construction. 

997. Defective plan. 

998. Work of construction or repair. 

999. Change of grade or taking of property. 

Taking of or injury to property. 

1000. Surface water injuries from plan or construction. 

1001. Duty in respect to maintenance of public highways, 

1002. Lights. 

1003. Barriers and railings. 

1004. Obstructions. 

1005. Same subject; accumulation of rubbish. 

1006. Ice and snow. 

1007. Same subject; buildings with their adjuncts and projections. 

1008. Poles, wires and similar objects as obstructions. 

1009. Excavations or depressions. 

1010. Basement or sidewalk openings. 

1011. Ditches, culverts, catch basins or open sewers. 

1012. Use of street. 

Moving objects. 

1013. Illegal use of the street. 

1014. Side and cross walks. 

1015. Duty; how modified. 

(a) Width to be kept in repair. 

(b) Duty; to whom due. 

1016. Duty; when absolute. 

1017. Liability for defects. 
L018. Plan of improvement. 

Actual work of construction, 

1019. Defects in condition. 

1020. Obstructions as defects. 

1021. Ice and snow as defects. 

1022. Proximity of defects. 

1023. Falling or dangerous objects. 

1024. Bridges, viaducts and similar structures. 

1025. Definition of bridge. 

1026. Liability; how affected. 

Contributory negligence and notice. 



x ii TABLE OF CONTENTS. 

1027. Liability for defects in construction. 

1028. Defects in condition. 

1029. Duty to inspect. 

1030. Warning to the public, 

1031. Defenses. 

1032. Injuries through operation. 

1033. Liability as affected by notice. 

1034. Notice must be shown affirmatively by the plaintiff. 

1035. To whom given. 
103 G. Actual notice. 

1037. Statutory notice. 

1038. Constructive notice. 

1039. How proved. 

(a) Other accidents. 

(b) Subsequent or prior repairs. 

1040. Notice; when not necessary. 

1041. Latent defects; inevitable accidents. 

1042. Notice a question for jury. 

1043. Contributory negligence. 

1044. Imputable negligence. 

1045. The application of the doctrine of contributory negligence to 

those non sui juris. 

1046. Duty of the traveler in respect to the use of highways. 

1047. Presumption of care. 

1048. Vigilance in discovering defects. 

1049. Diverted attention. 

1050. Nocturnal travel. 

1051. Attempting obvious or known danger. 

1052. Choice between dangers or ways. 

Choice of ways. 

1053. Condition of the traveler. 

1054. Knowledge of danger. 

1055. Conduct of the travel 

(a) Careless driving. 

(b) Unmanageable teams. 

(c) Rate of speed. 

1056. Conduct continued; defective vehicles. 

(a) Deviation from traveled way. 

(b) Travel in violation of law. 

1057. Contributory negligence; a question for the jury. 

1058. Burden of proof. 

1059. Proximate cause. 

1060. Defenses; statute of limitations; lack of funds. 

1061. Defense; notice of accident. 

1062. Notice of accident and its sufficiency. 

1063. Service of the notice. 

1064. Pleadings; instructions to jury. 



TABLE OF CONTENTS. 



1065. Proper evidence. 

Sufficiency of evidence. 
1066. Questions for the jury. 



CHAPTER XI. 

SOME PUBLIC DUTIES. 
I. EDUCATIONAL. 

1067. Public school systems. 

1068. Maintenance of public schools. 

1069. School funds; special; how raised. 

Bonds; debt incurred. 

1070. General and special school funds; how apportioned. 

1071. School funds; how disbursed; purpose. 

Improvements and general expenses. 

1072. School funds. Manner of disbursement. 

Form of disbursement. 

1073. School districts; organization. 

(a) Formation or abolition of common or independent school 

districts. 

(b) By election. 

1074. Alteration of school districts. 

High, graded or normal school boards; state universities. 

1075. School system; how governed. 

1076. State superintendent of public instruction. 

1077. County superintendents; term of office. Powers. 

1078. School districts. 

Meetings. 

1079. School district meetings. 

Records. 

1080. Powers of school directors and officers other -'.ban of common 

school districts. 

1081. State universities. 

1082. School property. 

1083. School sites and buildings. 

1084. Erection and management. 

1085. School furniture; libraries and supplies. 

Limitation on indebtedness incurred. 

1086. Contracts. 

1087. Teachers. 

1088. Employment; dismissal. 

1089. Duties and rights. 

1090. Control and discipline of public schools. 

1091. Religious instruction. 

1092. The race question in the public schools. 

1093. School terms; books; health regulations. 



x j v TABLE OF CONTENTS. 

II. CHARITABLE AND CORRECTIVE. 

1094. In General. 

1095. Poor districts; organization. 

1096. Legal character. 

Expenditures. 

1097. Settlement 

1098. Settlement; how acquired. 

(a) Settlement through ownership of property. 

(b) By payment of taxes. 

(c) Change of boundary. 

1099. Derivative settlement. 

(a) Children. 

(b) Servants and apprentices 

(c) Holding office. 

(d) Soldiers and persons non sui juris. 

1100. Settlement; how lost; by removal. 

(a) Change of residence; receipt of aid. 

(b) Loss of derivative settlement. 

1101. Support of paupers; by relatives or others. 

From pauper's estate. 

1102. Relief; how secured. 

1103. Place of support. 

1104. Support; character; medical attendance. 

1105. Right to services. 

1106. Corrective institutions. 

Miscellaneous charitable institutions. 



CHAPTER XII. 

ACTIONS BY AND AGAINST PUBLIC CORPORATIONS. 

I. MANDAMUS. 

1107. General principles covering issue of writ. 

1108. Character of duty sought to be coerced. 

1109. Writ; when issued. 

1110. To whom it may issue; administrative public officers. 

1111. Judicial officers. 

1112. Members or officers of legislative bodies. 

1113. Acts which may be coerced. 

1114. Writ directed to public boards and legislative bodies. 

1115. Acts which may be coerced. 

111G. Writ directed to a public corporation as such. 

1117. Who may apply for writ. 

1118. The writ in connection with the audit, allowance and payment 

of claims. 



TABLE OF CONTENTS. XV 

1119. Elections. 

1120. Admission and restoration to office. 

1121. Levy and collection of taxes to pay judgment; when writ will 

issue. 

II. CEBTIORABI, Quo WARBANTO AND INJUNCTION. 

1122. Certiorari; general principles. 

1123. The writ; when issued. 

1124. When the writ will issue. 

1125. Petition and parties. 

1126. Return and hearing. 

1127. Judgment; miscellaneous. 

1128. Injunction; definition; general principles. 

1129. When granted; nature or character of injury, 

1130. The writ; when refused. 

Discretionary acts. 

Public improvements; miscellaneous. 

1131. Purpose for which writ will issue. 

1132. Actions pertaining to real property. 

1133. Protection against nuisances. 

1134. Contracts. 

1135. Taxation. 

1136. Protection of public property. 

1137. Public officers. 

1138. Ordinances; laws. 

1139. Parties. 

Pleadings. 

1140. Quo warranto. Nature of remedy. 

1141. Scope of proceedings. 

Right to jury trial. 

1142. Jurisdiction of the courts. 

1143. Principles governing use of remedy. 

1144. Laches and estoppel. 

1145. When and for what purposes writ will issue. 

1146. At whose instance proceedings initiated. 

Private persons. 

1147. Evidence and burden of proof. 

Judgment. 

III. ACTIONS IN GENEBAL. 

1148. Jurisdiction cf courts. 

1149. Generally; liability to action. 

1150. Subordinate to public corporations. 

1151. Subject of liability further considered. 

1152. Prohibition. 

Indictment. 

1153. Attachment and garnishment 



TABLE OF CONTENTS, 

1154. Conditions precedent to right of action; notice of intention 
to sue. 

1155. Same subject; filing of claim. 

1156. Service of process. 

1157. Taxpayer's actions. 

1158. Waste of public property. 

Prevention of illegal contract 

1159. Recovery of tax. 

1160. Power to sue. 

1161. Parties plaintiff. 

1162. Defendant 

1163. Pleadings. 

1164. Evidence. 

1165. Defenses. 

1166. Judgment 

1167. Execution. 

1168. Costs and the right of appeal 



MUNICIPAL CORPORATIONS. 



CHAPTER IX (Cont'd.) 

PUBLIC PROPERTY. 
I. ITS ACQUIREMENT. 

(For Complete Analysis of this Subdivision see Vol. II, p. 1693.) 

II. ITS CONTEOL AND USE. 

(For Partial Analysis of this Subdivision see Vol. II, p. 1893, and 
its completion, Vol. Ill, p. 1981.) 

III. ITS DISPOSITION. 

(For Complete Analysis of the Subdivision see p. 2189.) 

II. ITS CONTROL AND USE (Cont'd). 

835. Railroads in streets. 

836. Classification of railroads. 

837. Authority for occupation of highways. 

838. Power indirectly exercised. 

839. Authority as dependent upon abutter's consent. 

840. Abutting owner's compensation for use of highways by rail- 

ways. 

841. The use of highways by steam railways regarded as an addi- 

tional servitude. 

842. Right to compensation as dependent upon abutter's interest 

in a highway. 

843. Abutter's rights when fee is in the public. 

844. The use of highways by street railways. 

845. The contrary doctrine. 

846. Reasons for the difference in the rule as applied to steam 

and street railways. 

847. Abutting owner. When entitled to compensation. 

848. Elevated railroads. 

849. Other street railroads. 

850. General summary. 

851. Railways in streets. 

852. Construction of grant of authority. 

853. Right to impose conditions for use of highways, 

854. Conditions based upon the police power. 

Abb. Corp. Vol. Ill 



1982 PUBLIC PROPERTY. 

S 855. Conditions imposed as revenue measures. 

856. Conditions having for their purpose the maintenance of the 

highway in its original condition. 

857. The duty to restore and repair. 

858. The duty to improve. 

859. Highway crossings. 

860. Duty to restore and maintain. 

861. Restoration of highways. The duty to construct overhead 

or underground crossings. 

862. Highway crossings. Right of the public corporation to make. 

863. Same subject. Duty to maintain and repair. 

864. Temporary obstructions. 

865. Concrete illustrations of temporary obstructions. 

866. Limitations upon power of regulating temporary obstruc- 

tions. 

867. Recurring, temporary obstructions. 

868. Manner of use; further considered. 

869. Use by abutters. 

870. Miscellaneous uses of a street regarded as obstructions. 

871. Miscellaneous uses of a street regarded as a nuisance. 

872. Regulation of traffic. 

873. Stock ordinances. 

874. Use of highways by public authorities. 

875. Use of public buildings or public facilities. 

876. Protection of public property. 

877. Removal of obstructions. 

878. Removal of a nuisance. 

879. Authority for removal of obstructions or nuisances. 

880. Mode of removal. 

881. Criminal proceedings. 

882. Public highways or grounds must be legally established or 

acquired. 

883. Prescriptive rights. 

884. Legalized obstructions. 

885. Abutter's rights. 

886. Use of public highways by agencies distributing water, 

power or light and furnishing telephone and telegraph or 
transportation services. 

887. Control of highways by public authorities. 

888. Use of highways for above purposes. 

889. Legal right to supply light. 

890. Direct authority necessary. 

891. Mode of establishing municipal plant 

892. Operation of plant. 

893. Rules and regulations. 

894. Other restrictions upon power to acquire and operate plants 

for the supply of water and light. 

895. Sale or lease of property. 



835 ITS CONTROL AND USE. 

896. Use of highways by persons. 

897. Source of authority. 

898. Same subject continued. 

899. Mode of grant. 

900. Grant subject to regulation. 

901. Acceptance of the grant 

902. Construction of grant. 

903. Same subject. 

904. Exercise of the grant; the element of time. 

905. Same subject. Manner of exercise in respect to time and 

place. 

906. New streets or extension of corporate limits. 

907. Change of commodity furnished. 

908. Grant of license upon condition. 

909. Exercise of the grant. 

910. Replacing improvements. 

911. Destruction of or injury to trees, 

912. Regulation by public corporations, extent and character. 

913. Character of right; regulation. 

914. Subways. 

915. Rates for services rendered or commodities furnished. 

916. The right to change rates. 

917. Contract obligation. 

918. Assignment of privilege or license. 

919. Revocation or impairment of the grant. 

920. Forfeiture of grant. 

921. Licenses or privileges of an exclusive nature. 

922. Legal power to grant. 

923. Same subject continued. 

924. Must be express authority. 

925. Manner in which granted. 

926. Grant strictly construed. 

927. Nature of grant or license. 

928. Impairment of contract obligation by grantor of exclusive 

license or privilege. 

929. Forfeiture or revocation of grant or license. 

930. Assignment of exclusive privilege or license. 

931. Grants to street railway companies. 

932. Option to purchase. 

933. Exclusive contracts for supply of commodity. 

934. Additional servitude; subject further considered. 

835. Railroads in streets. 

A very large proportion of the highways of this country are per- 
manently occupied in part by railroads. The litigation in connec- 
tion with this occupation has been great. The losses and annoy- 



1984 PUBLIC PROPERTY. 836 

ance suffered by abutting property owners has been a question 
for much discussion and the law still differs upon important ques- 
tions in the different states. It is well known as a matter of 
common observation that there exists different classes of rail- 
roads and the law with respect to the rights of each of these 
divisions varies although in many cases upon an assumed 
rather than a real and substantial basis of difference. The 
kind of equipment and method of operation, a difference in 
motive power, the character of the services rendered, whether 
local or otherwise, have each in turn served as a basis for dis- 
tinction in the application of conceded principles of law. 707 

836. Classification of railroads. 

Mechanical and commercial conditions connected with the 
transportation of both freight and passengers are constantly 
changing in the United States and the future is likely to see as 
great a development and change as the past has witnessed It 
is an impossibility, therefore, to make a classification which 
will serve as a basis of a legal discussion by which any set of 
principles can be definitely stated as rigidly applying to one 
class of railroads and not to another. The extension of the 
trolley car system from a mere local street road, entirely within 
the limits of a village or city, to a system extending from one 
town to another and adapted and designed for carrying both 
passengers, freight and express matter, is a good illustration 
of a change which has very recently taken place and which 
must necessarily lead to a shifting of distinctions in a determ- 
ination of the rights of both abutters and municipalities. The 
classification'* commonly adopted at the present time, however,, 
is that of commercial or steam and street railroads, the latter 
including those constructed and intended solely for the trans- 
portation of local passenger traffic within and along the streets 
of towns and cities irrespective of the motive power whether 
that be horse, electric, steam or cable, and whether the road be 
upon, over or under the surface of the streets. 708 

TOT Massachusetts Loan & Trust applies to street railways without 

Co. v. Hamilton, 88 Fed. 588, 32 C. the use of other language. Kane 

C. A. 46. The word "railroad" has v. New York El. R. Co., 125 N. Y. 

no such fixed meaning as will en- 164, 26 N. E. 27S, 11 L. R. A. 640. 
able a court to decide whether it TOS Williams v. City Elec. St. R. 



837 



ITS CONTROL AND USE. 



1985 



837. Authority for occupation of highways. 

The highways of the country in common with all other public 
property are under the direct and ultimate authority of the differ- 
ent state legislatures as representing the law-making branch of 
the sovereign body. 709 They have the right to grant the authority 
to persons or corporations to use these highways in a manner 
which, without that authority, would render the use a nuisance, an 
encroachment upon public rights and, therefore, liable to abate- 
ment and removal. 710 The necessity for the legislative grant of a 
right of this character is entirely independent of the question of 
compensation for private property which may be taken in the 
large sense of that term in the exercise of the granted right. The 
legislature may itself directly grant to persons, natural or artifi- 
cial, the right and power to construct and operate in, along and 
upon the highways within its jurisdiction, railways of all classes, 
and which, because of the existence of this legislative grant, are 
not to be regarded as public nuisances or as interfering with the 



Co., 41 Fed. 556; Board of Railroad 
Com'rs v. Market St. R. Co., 132 
Cal. 677, 64 Pac. 1065. Street rail- 
way companies are not railroad or 
transportation companies within 
the meaning of Constitution, art. 12, 
22, denning the jurisdiction of a 
railroad commission and authoriz- 
ing it to establish rates of charges 
for the transportation of passengers 
and freight by railroad and other 
transportation companies. 

Newell v. Minneapolis, L. & M. R. 
Co., 35 Minn. 112; Appeal of Mont- 
gomery, 136 Pa. 96, 20 Atl. 399, 9 L. 
R. A. 369. By the way the terms 
"railroad" and "railway" are used 
in the Constitution of Pa., art. 17, it 
is evident that "railroad" is applied 
to steam railroads and "railway" to 
street railways. Rafferty v. Cen- 
tral Traction Co., 147 Pa. 579. 

TOD Daly v. Georgia S. & F. R. Co., 

80 Ga. 793, 7 S. E. 146; Davis v. 

East Tennessee, V. & G. R. Co., 87 

Ga. 605, 13 S. E. 567, following Daly 

Abb. Corp. Vol. Ill 1 



v. Georgia, Southern & F. R. Co., 80> 
Ga. 793. 

Prince v. Crocker, 166 Mass. 347, 
44 N. E. 446, 32 L. R. A. 610. The 
legislature may provide for the con- 
struction of a railroad subway in a 
city without its consent though this 
deprives it, to a certain extent, of 
the control of the street. Powers 
given cities or town by general or 
special laws do not become vested 
rights as against the legislature. 
Com. v. Erie & N. E. R. Co., 27 Pa, 
339. See, also, 851, post. 

710 Burns v. Multnomah R. Co., 15 
Fed. 177. This power is limited, 
however, to grants of authority 
upon legal highways only. Brown 
v. Atlanta R. & Power Co., 113 Ga. 
462, 39 S. E. 71; County of Stearns 
v. St. Cloud, M. & A. R. Co., 36 
Minn. 425, 32 N. W. 91; State v. 
Corrigan Consol. St. R. Co., 85 Mo. 
263. The principle applies only 
with respect to street railways. 

Inhabitants of Burlington v. 



1986 



PUBLIC PROPERTY. 



838 



legitimate or legal use of the highways. 711 This power is ample 
and, like all other legislative powers, continuing in its nature, and 
its existence has never been seriously questioned. The grant, 
though, is always taken subject to the exercise of the police power 
by either state or local officials and an application of those consti- 
tutional provisions which forbid the taking of private property 
for a public use without the payment of just compensation. 712 

838. Power indirectly exercised. 

Since the legislative authority in respect to the subject under 
discussion is so sufficient, it is held without question that it is com- 
petent for that body to declare the uses to which public highways 
may be appropriated and impart to subordinate corporations both 
permissive and restraining powers in relation to them, and that, if 
neither constitutional nor statutory provisions have been violated 
in the grant of these rights by municipal authorities, the one to 
whom they have been granted may exercise them as fully and as 



Pennsylvania R. Co., 56 N. J. Eq. 
259, 38 All. 849; New York & H. R. 
Co. v. Forty-second St. & G. St. 
Ferry R. Co., 50 Barb. (N. Y.) 309; 
People v. Board of Railroad Com'rs, 
42 App. Div. 366, 59 N. Y. Supp. 
144; Eldert v. Long Island Elec. R. 
o., 165 N. Y. 651, 59 N. E. 1122, 
affirming 28 App. Div. 451, 51 N. Y. 
Supp. 186. The occupation of a 
highway by railroad structures in 
the absence of authority constitutes 
a nuisance. Hoey v. Gilroy, 129 N. 
Y. 132, 29 N. E. 85; Lockhart v. 
Craig St. R. Co., 139 Pa. 419, 21 
Atl. 26. 

TII Edwardsville R. Co. v. Sawyer, 
92 111. 377. The question of right is 
one between the public authorities 
and the railroad company. Chi- 
cago & E. I. R. Co. v. Loeb, 118 111. 
203, 8 N. E. 460; Town of Newcastle 
v. Lake Erie & W. R. Co., 155 Ind. 
18, 57 N. E. 516; Milburn v. City of 
Cedar Rapids, 12 Iowa, 246; Ingram 
v. Chicago, D. & M. R. Co., 38 Iowa, 



669. The repeal of a city ordinance 
by authority of which a street rail- 
way was built does not render its 
use of the highway necessarily a 
nuisance. Tate v. M., K. & T. R. 
Co., 64 Mo. 149; Randle v. Pacific R. 
Co., 65 Mo. 325; Redford v. Cogges- 
hall, 19 R. I. 313, 36 Atl. 89; 
Schwede v. Hemrich Bros. Brew. 
Co., 29 Wash. 21, 69 Pac. 362. 

712 Daly v. Georgia S. & F. R. Co., 
80 Ga. 793, 7 S. E. 146; Protzman 
v. Indianapolis & C. R. Co., 9 Ind. 
467; People v. Keating, 62 App. Div. 
348, 71 N. Y. Supp. 97; People v. 
Loew, 102 N. Y. 471; Reining v. 
New York L. & W. R. Co., 128 N. Y. 
157, 28 N. E. 640, 14 L. R. A. 133, 
affirming 35 State Rep. 731, 13 N. 
Y. Supp. 238; Cincinnati & S. G. A. 
St. R. Co. v. Village of Cummins- 
ville, 14 Ohio St. 523; Potts v. 
Quaker City El. R. Co., 161 Pa. 396, 
29 Atl. 108; Pomeroy v. Milwaukee 
& C. R. Co., 16 Wis. 640. 



830 ITS CONTROL AND USE. 1987 

freely as if granted by the legislature itself, subject, however, to 
such limitations or restrictions as may appear in the original 
grant. 713 Equally with the legislature, a subordinate public cor- 
poration has the right to exercise the police power in connection 
with the operation of the granted franchise or right and this is 
true although the power may not be directly given ; for the right 
to exercise the police power in the protection of the property, 
lives and health of a community, is usually regarded as one 
impliedly possessed by subordinate corporations because necessary 
to the proper exercise of powers granted and even the existence 
of the corporation itself. 714 Some authorities go, moreover, to the 
<?xtent of holding that the right to exercise the police power is 
inherent in every community irrespective or independent of other 
public corporations or even the sovereign power itself. 715 

839. Authority as dependent upon abutter's consent. 

The right of an abutter to control in a limited way the use of a 
highway adjoining his property for the better protection of his 
rights is recognized in many instances, and the use of a highway 

713 Detroit Citizens' St. R. Co. v. New York & H. R. Co. v. City of 

Detroit R. Co., 171 U. S. 48; City of New York, 1 Hilt. (N. Y.) 562; Wil- 

Olney v. Wharf, 115 111. 519, 56 Am. liams v. New York Cent. R. Co., 18 

Rep. 178. A town owning the fee Barb. (N. Y.) 222; Gusthal v. 

of its streets is not liable for dam- Strong, 23 App. Div. 315, 48 N. Y. 

ages resulting from the grant of au- Supp. 652. By law a municipal cor- 

thority to a railroad company to poration may be prohibited from 

construct its lines through the granting a franchise for a longer 

town. period than twenty-five years. 

North Chicago St. R. Co. v. Dud- Beekman v. Third Ave. R. Co., 
geon, 184 111. 477, 56 N. B. 796. A 153 N. Y. 144, 47 N. E. 277; Sim- 
permit to a street railroad to relay mons v. City of Toledo, 5 Ohio Circ. 
its track includes, necessarily, the R. 124. One not an abutting owner 
right to take up the paving. cannot raise the question of an ex- 

Eichels v. Evansville St. R. Co., cess of municipal authority. 

78 Ind. 261; Hedrick v. City of Lockhart v. Craig St. R. Co., 139 

Olathe, 30 Kan. 348. A city is not St. 419, 21 Atl. 26. The fact that 

liable to an adjacent lot owner for a street has been paved with as- 

damage caused to his lot by the oc- phalt at the cost of abutting owners 

cupation of a street under legisla- does not affect the right of the mu- 

tive authority. The owner's claim, nicipality to grant the authority, 

if any, is against the railroad com- 714 See 853-4, post, 

pany. 715 See 115 et seq., ante. 



1988 



PUBLIC PROPERTY. 



by a railway whether the grant comes from the state or one of its 
subordinate agencies is made dependent upon the consent of the 
abutting owners or a certain proportion of them. 710 This condi- 
tion has been held valid without exception and its enforcement 
affords a degree of security from loss and annoyance which can 
be attained in no other way. 



Tie South Carolina R. Co. v. 
Steiner, 44 Ga. 546; Schuchert v. 
Wabash, C. & W. R. Co., 10 111. App. 
397; Bez v. Chicago, R. I. & P. R. 
Co., 23 111. App. 137; Chicago & W. 
I. R. Co. v. Dunbar, 100 111. 110; 
Chicago Dock & Canal Co. v. Car- 
rity, 115 111. 155; Doane v. Lake St. 
El. R. Co., 165 111. 510, 36 L. R. A. 
97; Tilton v. New Orleans City R. 
Co., 35 La. Ann. 1062. Acquies- 
cence by abutters is presumed by 
lapse of time. 

Lincoln St. R. Co..v. City of Lin- 
coln, 61 Neb. 109, 84 N. W. 802; 
Currie v. Atlantic City, 66 N. J. 
Law, 140, 48 Atl. 615. Consent in 
writing cannot be withdrawn after 
the resulting jurisdiction has vested 
in the municipality. Rehearing de- 
nied. Currie v. Atlantic City St. R. 
Co., 66 N. J. Law, 149, 48 Atl. 1116. 
An owner can only consent with re- 
spect to that portion of his prop- 
erty which is within the city limits. 

Orton v. Borough of Metuchen, 
66 N. J. Law, 572, 49 Atl. 814; Cur- 
rie v. City of Atlantic -City, 66 N. J. 
Law, 671, 50 Atl. 504; Paterson R. 
Co. v. Grundy, 51 N. J. Eq. 213; In 
re Saratoga Elec. R. Co., 58 Hun, 
287, 12 N. Y. Supp. 318; In re New 
York Cable R. Co., 109 N. Y. 32, 15 
N. E. 882; construing N. Y. Rapid 
Transit Act; In re Cortland & H. 
Horse R. Co., 31 Hun (N. Y.) 72; 
Case v. Cayuga County, 88 Hun, 59, 
34 N. Y. Supp. 595. 

Black v. Brooklyn Heights R. Co., 
32 App. Div. 468, 53 N. Y. Supp. 312. 



A reasonable time may be allowed 
in which to obtain consent after the 
construction of the road. Kunz v. 
Brooklyn Heights R. Co., 25 Misc. 
334, 54 N. Y. Supp. 187. The con- 
sent of abutting owners need not be 
obtained for the construction of a 
connecting curve between two 
street railway tracks. 

Adee v. Nassau Elec. R. Co., 65 
App. Div. 529, 72 N. Y. Supp. 992. 
The burden is on the party claim- 
ing a consent to be ineffectual. 
The consent as provided in the rail- 
road law, 91, may be executed and 
recorded at different times. 

In re Kingsbridge R. Co., 66 App. 
Div. 497, 73 N. Y. Supp. 440; In re 
Kings County El. R. Co., 82 N. Y. 
95; In re Thirty-fourth St. R. Co., 
102 N. Y. 343; In re Kings County 
El. R. Co., 105 N. Y. 97; Geneva 
& W. R. Co. v. New York Cent. & 
H. R. R. Co., 163 N. Y. 228, 57 N. E. 
498. An assignment may be made 
of the rights of the grantee. 

Cincinnati College v. Nesmith, 2 
Cin. R. (Ohio) 24; Roberts v. Eas- 
ton, 19 Ohio St. 78; Harner v. Co- 
lumbus St. Car R. Co., 29 Wkly. 
Law Bui. (Ohio) 387; Glidden v. 
City of Cincinnati, 30 Wkly. Law 
Bui. (Ohio) 213. The rights of 
abutting property owners can only 
be maintained by them and in re- 
spect to their own property. 

Mt. Auburn Cable R. Co. v. Neare^ 
54 Ohio St. 153, 42 N. E. 768. Con- 
sent necessary to validity of fran- 
chise for an extension. Hannum v. 



840 ITS CONTROL AND USE. 1939 

Conversely, the principle also obtains that where an abutting 
owner is not given rights of the character above indicated, he can- 
not interfere with or enjoin the construction or operation of a 
railroad upon a highway. 717 The abutter's consent, it is held, is 
only necessary to the authority for the construction of the line, not 
to the mode or manner of the construction or the operation of the 
railway 718 unless statutes otherwise provide. 719 

840. Abutting owner's compensation for use of highways by 
railways. 

The question of the authority or right to use the highways or 
streets of a community is entirely independent of the question or 
right of compensation in the abutting owner for the use which 
may be lawfully granted. Railroads of all classes are permanent 
obstructions, in a greater or less degree, of a highway, and with- 
out legislative authority, as already stated, they would be 
regarded as nuisances and subject to removal. The grant of this 
authority legalizes only their use of a highway, but does not pass 
upon the other question involved and discussed in this and suc- 
ceeding sections. The legislature or a legislative body acting 
under lawful authority cannot by its enactments override constitu- 
tional provisions. Private property may be taken and appropri- 
ated to a public use in this country. The necessity and the 
occasion for the exercise of such power have already been con- 
sidered. 720 Private property, however, cannot be taken even for 
a public use without the payment of just compensation. 721 The 

Media, M., A. & C. Elec. R. Co., 200 Rochester & L. O. R. Co., 51 App. 

Pa. 44, 49 Atl. 789. The burden of Div. 65, 64 N. Y. Supp. 429. N. Y. 

proof is on the railroad company to- Laws 1890, c. 565, 100, requires 

show such consent. Common- abutter's consent to a change in the 

wealth v. Central Pass. R. Co., 52 motive power of the street railway. 

Pa. 506; Nellis, Street Surface Rail- 719 In re Third Ave. R. Co., 121 N. 

roads, c. 2, sec. 6. See authorities Y. 536, 24 N. E. 951, 9 L. R. A. 124, 

cited Century Digest, vol. 44, col. reversing 56 Hun, 537, 9 N. Y. Supp. 

3205 et seq. 833; People v. Roberts, 156 N. Y. 

TIT Smith v. East End St. R. Co., 693, 51 N. E. 1093. 

87 Tenn. 626, 11 S. W. 709; Aycock "o See 743 et seq., ante. 

v. San Antonio Brewing Ass'n, 26 i City of New Haven v. New Ha- 

Tex. Civ. App. 341, 63 S. W. 953. ven & D. R. Co., 62 Conn. 252, 25 

7i8 Sloane v. Peoples' Elec. R. Co., Atl. 316, 18 L. R. A. 256. See, also, 

7 Ohio Cir. R. 84. But see In re 787 et seq., ante. 



1990 PUBLIC PROPERTY. 841 

question of compensation in respect to the use of a highway by 
railways will be dependent upon a determination of the question of 
whether or not a particular authorized use of a highway is one 
coming within the purposes for which the highway was originally 
laid out, dedicated and secured. A highway, including rural and 
urban, is regarded as a means or agency of passing and repass- 
ing, 722 and of supplying to the abutting owner the easements of 
light, air and access to his property. 723 The question of compen- 
sation in some jurisdictions has been made also somewhat depend- 
ent upon the fact of whether the title to the highway is vested in 
the public or in the abutting owner 724 and upon the question of 
whether the use is regarded as a legitimate use of the highway or 
an additional servitude and, further, upon a consideration of the 
abutter's special rights in property which are those enjoyed by 
him in common with the public, and in addition the easements of 
air, light and access to his property and 723 in many states a rever- 
sionary interest. 

841. The use of highways by steam railways regarded as an 
additional servitude. 

The great weight of authority in the United States is to the 
effect that the use of a highway by a steam railway or commercial 
road, as it is sometimes called, imposes an additional burden upon 
the highway; one which was not contemplated or anticipated by 
the owner at the time of the original creation of the highway as 
coming within the legitimate uses of a highway and for w T hich he 
is, therefore, entitled to such compensation as may be awarded 
him under the protection of and the remedies given him by law. 726 

722 See 787 et seq., ante. 359, 21 S. W. 884, 20 L. R. A. 434; 

723 gee 422, 809, 817 et seq., Southern Pac. R. Co. v. Reed, 41 
825 and 828, ante, and 847, 848 Cal. 256; City of New Haven v. New 
post. Haven & D. R. Co., 62 Conn. 252, 25 

724 See post, 847, 848. Atl. 316, 18 L. R. A. 256; Denver 

725 Pittsburgh, Ft. W. & C. R. Co. Circle R. Co. v. Nestor, 10 Colo. 403, 
v. Reich, 101 111. 157; Shaw v. Bos- 15 Pac. 714; South Carolina R. Co. 
ton & A. R. Co., 159 Mass. 597, 35 N. v. Steiner, 44 Ga. 546; Frith v. City 
E. 92. of Dubuque, 45 Iowa, 406; Stange v. 

720 Western R. of Alabama v. Ala- City of Dubuque, 62 Iowa, 303; Hed- 

bama G. T. R. Co., 96 Ala. 272, 11 rick v. City of Olathe, 30 Kan. 348; 

So. 483, 17 L. R. A. 474; St. Louis, Ruttle v. City of Covington, 10 Ky. 

I. M. & S. R. Co. v. Petty, 57 Ark. L. R. 766, 10 S. W. 644; Bradley v. 



841 



ITS CONTROL AND USE. 



1991 



There are some cases holding to the contrary 727 but the better 
reasons and the great weight of authority, as above stated, are in 
favor of the right of the abutting owner to recover compensation. 
This holding is based with other reasons, upon the conditions 
found existing in connection with the construction and operation 
of steam railways. The nature of their roadbed and the manner 
of its construction, their equipment and motive power, the charac- 
ter of the traffic carried and the practically exclusive use of the 
ground occupied by them, are facts which have been considered 
by the courts and have lead to the adoption of the rule given 



Pharr, 45 La. Ann. 426, 19 L. R. A. 
647. 

Hoffman v. Flint & P. M. R. Co., 
114 Mich. 316, 72 N. W. 167. The 
right to recover compensation on 
the part of the abutting owner is 
in one having title to the property. 
Carli v. Stillwater St. R. & T. Co., 
28 Minn. 373, 10 N. W. 205. A 
street railroad used solely as a 
freight transfer track between two 
steam railroads running into a city 
is an additional servitude for which 
abutting owners can recover com- 
pensation. 

Kaje v. Chicago, St. P., M. & O. 
R. Co., 57 Minn. 422, 59 N. W. 493; 
Sherlock v. Kansas City Belt R. Co., 
142 Mo. 172; Butte, A. & P. R. Co. v. 
Montana Union R. Co., 16 Mont. 
504, 41 Pac. 232, 31 L. R. A. 298; 
Williams v. New York Cent. R. Co., 
16 N. Y. 97; Craig v. Rochester City 
& B. R. Co., 39 N. Y. '404; White v. 
Northwestern North Carolina R. 
Co., 113 N. C. 610, 18 S. E. 330, 22 L. 
R. A. 627; Willamette Iron Works 
Co. v. Oregon R. & Nav. Co., 26 Or. 
224, 37 Pac. 1016, 29 L. R. A. 88; 
Blesch v. Chicago & N. W. R. Co., 
43 Wis. 183. The proposition is too 
well established to warrant the ci- 
tation of other cases. See Lewis, 
Em. Dom. (2d Ed.) 111; Elliott, R. 
R. 1087; Dillon, Mun. Corp. (4th 



Ed.) 725. The laying of addi- 
tional tracks it has been held in 
some cases entitle the abutting 
property owner to further compen- 
sation. See the following cases: 
Southern Pac. R. Co. v. Reed, 41 
Cal. 256; Bond v. Pennsylvania Co., 
171 111. 508, 49 N. E. 545; Davenport 

6 R. I. Bridge R. & Terminal R. Co. 
v. Johnson, 188 111. 472, 59 N. E. 
497; Rock Island & P. R. Co. v. 
Johnson, 204 111. 488, 68 N. E. 549; 
Stephens v. New York, O. & W. R. 
Co., 175 N. Y. 72, 67 N. E. 119. 

727 Montgomery v. Santa Ana W. 
R. Co., 104 Cal. 186, 25 L. R. A. 654; 
Moses v. Pittsburgh, Ft. W. & C. R. 
Co., 21 111. 516; City of Alney v. 
Wharf, 115 111. 519; Fulton v. Short 
Route R. Transfer Co., 85 Ky. 640; 
Hepting v. New Orleans Pac. R. Co., 
36 La. Ann. 898; Porter v. North 
Missouri R. Co., 33 Mo. 128; Tate v. 
M., K. & T. R. Co., 64 Mo. 149; De 
Geofroy v. Merchants' Bridge Ter- 
minal R. Co., 179 Mo. 698, 79 S. W. 
386; Morris & E. R. Co. v. City of 
Newark, 10 N. J. Eq. (2 Stockt.) 
352; Drake v. Hudson River R. Co., 

7 Barb. (N. Y.) 508; Yates v. Town 
of West Grafton, 34 W. Va. 783, 12 
S. E. 1075. 

Some early cases in Iowa and Illi- 
nois hold the doctrine of no right to 
compensation but these have been 



1992 



PUBLIC PROPERTY. 



841 



above. 728 Since the legislature directly or indirectly can authorize 
the use of a highway by either a steam or a street railroad, the 



overruled by the latter ones: See 
Indianapolis, B. & W. R. Co. v. 
Hartley, 67 111. 439; Kucheman v. 
C., C. & D. R. Co., 46 Iowa, 366. 
See, also, the cases of Hoffman v. 
Flint & P. M. R. Co., 114 Mich. 316, 
72 N. W. 167; Coatsworth v. Lehigh 
Valley R. Co., 156 N. Y. 451. 

72 See authorities cited in two 
preceding notes. Mordhurst v. Ft. 
Wayne & S. W. Traction Co., 163 
Ind. 268, 71 N. E. 642. On page 278 
of the report it is said by the court 
in distinguishing between the use 
of a street by a street railroad and 
an ordinary commercial road: "This 
distinction does not rest upon a dif- 
ference in name one being denom- 
inated a street railroad or a passen- 
ger railroad, and the other a com- 
mercial or freight railroad nor 
upon the motive power employed, 
nor upon the kind of rail used, nor 
upon the length of the railroad. It 
results from the nature of the busi- 
ness done by each of the two kinds 
of railroads, and the physical agen- 
cies and manner by which and in 
which that business is carried on. 
Those of the one are consistent 
with the use of the street by the lot 
owner and the general public, and, 
if not directly beneficial to the abut- 
ting real estate, are not detrimental 
to it. They relieve the streets 
from some of the burdens of travel 
upon it, they facilitate travel be- 
tween different parts of the city, 
and they enhance the value of abut- 
ting property by increasing the con- 
venience of access to it. The busi- 
ness of the other class of railroads, 
and the means by which it is neces- 
sarily carried on, require the serv- 



ice of entirely dissimilar agencies 
and methods. Great trains of cars 
moving along the streets, or stand- 
ing upon them, are real and serious 
obstructions to all other uses of the 
highway. Such trains make a loud 
noise by day and by night, and dis- 
turb the quiet of neighborhoods. 
Access to abutting property is ren- 
dered difficult and dangerous, and 
the jarring and shaking of buildings 
is annoying to the occupants, and 
often injurious to the structures 
themselves. If the cars are pro- 
pelled by steam, then there is the 
additional inconvenience of smoke, 
cinders, sparks, the blowing off of 
steam, the ringing of the engine 
bell, and the whistling of the loco- 
motive. There are good and sub- 
stantial reasons why compensation 
should be paid to the owners of 
abutting lots when a street in a city 
is used for such a purpose and in 
such a manner." 

Rische v. Texas Transp. Co., 27 
Tex. Civ. App. 33, 66 S. W. 324. 
"It was first held that street cars 
drawn by horses, and used for the 
transportation of passengers from 
one part of a city to another, did 
not constitute an additional servi- 
tude on the . streets. They were 
distinguished from steam railways 
in the rails and construction of the 
track, the speed at which they run, 
the noise and vibration produced, 
the smoke and steam emitted, the 
danger of frightening horses, the 
danger to life, and the size and 
weight of cars and locomotives. 
When the steam motor and electric 
cars were invented, all the reasons 
given why horse railways were not 



842 ITS CONTROL AND USE. 1993 

right of the abutter to compensation, if any, is against the railroad 
company and not against the public corporation. 728 

842. Right to compensation as dependent upon abutter 's inter- 
est in a highway. 

The right of the abutting owner to compensation for an occupa- 
tion of the street is also made dependent in some instances upon 
the extent of his interest in it. The fee of the highway may be 
vested in the abutting owner, the public having only an easement 
for the purpose of travel or other legitimate use. 730 The fee, 
again, may rest in the public without a reversionary interest in 
the abutting owner. This latter condition does not, as seen, give 
to the public an indiscriminate right of use to the property. A 
highway, even where the fee is vested in the public, can be 
acquired and maintained only because of its public character and 
use for legitimate purposes. 731 

Where the fee belongs to the abutting owner he is entitled, by 
the weight of authority, to the use of those portions of the high- 
way not occupied or intended for the traveled way and its repair 
for such personal and private use as will not be inconsistent with, 
destroy or impair the use of the land as a highway. The question 
has been fully considered in previous sections. 732 In addition, he 
is also entitled to his rights in common with the public and to his 
easements of light, air and access. The existence of a commercial 
railroad with its permanent way and exclusive possession to all 
practical intents and purposes interferes with the rights of the 
abutting owner in all these respects and he is clearly entitled to 
compensation. 733 

an additional servitude to streets Pa. Dist. R. 487. The diversion of 
were ignored except that they must travel from one side of the street to 
be carriers of passengers, and not a the other is not regarded as an ad- 
freight, from one point to another ditional servitude even though occa- 
in a city." sioned by the construction of a rail- 

720 Bancroft v. City of San Diego, road upon one side, the abutting 

120 Cal. 342, 52 Pac. 712; Burkam v. owners having the fee only to the 

Ohio & M. R. Co., 122 Ind. 344, 23 middle of the street. 

N. E. 799; Duke v. Baltimore & C. ^31 See 422 et seq., and 797 et 

V. R. Extension Co., 129 Pa. 422, 18 seq., ante. 

Atl. 566. 732 See 817 et seq. 

730 Philadelphia & T. R. Co. v. 733 Alabama G. S. R. Co. v. Col- 
Philadelphia & B. Pass. R. Co., 6 Her, 112 Ala. 681; Reichert v. St. 



1994 



PUBLIC PROPERTY. 



843 



843. Abutter's rights when fee is in the public. 

Where the fee of the highway is vested in the public, the exist- 
ence of a commercial railroad in a highway still interferes with 
the abutter's rights as a member of the community and also with 
his easements of light and air and access and for an impairment 
or loss of these or any of them, he is as clearly entitled to compen- 
sation as if the fee were vested in him. 73 * These rights are not 
at all dependent upon the character of the title resting in the 



Louis & S. F. R. Co., 51 Ark. 491, 5 
L. R. A. 183; Weyl v. Sonoma Val- 
ley R. Co., 69 Cal. 202; Imlay v. 
Union Branch R. Co., 26 Conn. 249; 
Bond v. Pennsylvania Co., 171 111. 
508; Cox v. Louisville, N. A. & C. R. 
Co., 48 Ind. 178; Terre Haute & L. 
R. Co. v. Bissell, 108 Ind. 113; 
Strickler v. Midland R. Co., 125 Ind. 
412; Phipps v. W. Md. R. Co., 66 
Md. 319; Hartz v. St. Paul & S. C. 
R. Co., 21 Minn 358; Papooshek v. 
Winona, etc., R. Co., 44 Minn. 195, 
46 N. W. 329; Grand Rapids & Ind. 
R. Co. v. Heisel, 47 Mich. 393; Gus- 
tafson v. Hamm, 56 Minn. 334, 57 N. 
W. 1054, 22 L. R. A. 565; Theobald 
v. Louisville, N. O. & T. R. Co., 66 
Miss. 279, 6 So. 230, 4 L. R. A. 735; 
Starr v. Camden & A. R. Co., 24 N. 
J. Law (4 Zab.) 592; White v. 
Northwestern North Carolina R. 
Co., 113 N. C. 610, 18 S. E. 330; 
Lawrence R. Co. v. Williams, 35 
Ohio St. 168; Harmon v. Louisville, 
N. O. & T. R. Co., 87 Tenn. 614; 
Hodges v. Seaboard & R. R. Co., 88 
Va. 653, 14 S. E. 380; Hanlin v. Chi- 
cago & N. W. R. Co., 61 Wis. 515; 
Frey v. Duluth, S. S. & A. R. Co., 91 
Wis. 309. See 817 et seq. See, 
also, cases cited under first note of 
841, ante. But see to the contrary 
cases cited under second note of 
preceding section and among oth- 
ers Mobile & M. R. Co. v. Alabama 
Midland R. Co., 116 Ala. 51; Harri- 



son v. New Orleans Pac. R. Co., 34 
La. Ann. 462. 

734 Western R. Co. of Ala. v. Ala- 
bama G. T. R. Co., 96 Ala. 272, 11 
So. 483, 17 L. R. A. 474; Ford v. 
Santa Cruz R. Co., 59 Cal. 290; 
Florida So. R. Co. v. Brown, 23 Fla. 
104, 1 So. 512; South Carolina R. 
Co. v. Steiner, 44 Ga. 546; Dantzer 
v. Indianapolis Union R. Co., 141 
Ind. 604, 39 N. E. 223, 34 L. R. A. 
769. An abutting owner cannot re- 
cover for obstructions placed on 
that half of the street opposite his 
property. 

Pittsburgh, C., C. & St. L. R. Co. 
v. Noftsger, 148 Ind. 101, 47 N. E. 
332. But this case also holds that 
an abutting owner cannot recover 
damages for increased danger from 
fire nor for injuries suffered by the 
public at large. Fort Scott, W. & 
W. R. Co. v. Fox, 42 Kan. 490, 22 
Pac. 583; Adams v. Chicago B. & N. 
R. Co., 39 Minn. 286, 39 N. W. 629, 
1 L. R. A. 493; Randle v. Pacific R. 
Co., 65 Mo. 325. But see Jackson- 
ville, T. & K. W. R. Co. v. Thomp- 
son, 34 Fla. 346, 16 So. 282, 26 L. R. 
A. 410. 

The limit of this work forbid a 
further discussion of the subject 
or citation of authorities and the 
reader is referred to Lewis, Em. 
Dom. (2d Ed.) pp. 242-248, inclu- 
sive, where an exhaustive citation 
of cases is made by states with a. 



844 ITS CONTROL AND USE. 1995- 

abutting owner. In a recent text book on Eminent Domain, 735 the 
author said : ' The existence and operation of a commercial rail- 
road in the street is necessarily some interference with those 
rights, and, to the extent of such interference, a right to compen- 
sation exists. For any physical injury to the abutting property, 
as by casting cinders upon it, polluting the air with smoke and 
gases, or by vibrations communicated through the soil to an extent 
which would be actionable if the property were not a street, a 
recovery may be had. With respect to this class of injuries the 
abutting owner's rights are the same as though the street were 
private property, and these rights are discussed elsewhere. The 
tendency of the later decisions is towards the protection of private 
rights and the more accurate ascertainment and definition of those 
rights. It is now well settled by the great weight of authority 
that, where the fee of a street is in the abutting owner, he may 
recover for the additional burden caused by a commercial railroad 
laid on the street. These cases necessarily proceed upon the basis 
that a commercial railroad is not a legitimate street use. The 
cases which deny compensation in any case, on the ground that 
such a railroad is a legitimate use of a highway, are so clearly 
against good sense and reason that we do not think they require 
further discussion. The right to recover when the fee is in the 
public is involved in so much doubt by the authorities that we 
have collected in a note all the cases which involve the question, 
with such comment as seems appropriate. We have allowed this 
to stand as it was written in the first edition. Since then it has 
become very firmly established that the abutter, though he has 
not the fee of the street, has certain private rights of access, light 
and air, which are as much property as the lot itself ; also that any 
interference with such rights by a use which is not within the 
legitimate purposes of a highway, is a taking within the constitu- 
tion." 

844. The use of highways by street railways. 

The considerations given in the preceding sections as forming 
a basis for some of the reasons holding the doctrine there stated, 
that the use of a highway by a commercial steam road imposes an 

discussion of the points decided in 735 Lewis, Eminent Domain, sec. 
each case. 115. 



1996 



PUBLIC PROPERTY. 



84* 



additional burden upon it for which the abutting owner is 
-entitled to compensation, have lead the courts to the holding by an 
equally and as great a weight of authority that in the absence of 
a statute to the contrary 736 the use of a highway by a street rail- 
way does not impose an additional burden or servitude upon it as 
.a legitimate use of the street, one which was intended or antici- 
pated by the original owner and for which, therefore, he is not 
entitled to compensation. 737 Special damages caused by the neg- 



736 See 845, post. 

737 Southern Bell Tel. Co. v. Fran- 
cis, 109 Ala. 224, 19 So. 1; Miller v. 
Detroit, Y. & A. A. R. Co., 125 Mich. 
171, 51 L. R. A. 955. "Street rail- 
ways, in city and country, have 
come to be regarded as a public ne- 
cessity, and their construction upon 
the highways universally sanc- 
tioned." Birmingham Traction Co. 
v. Birmingham R. & Elec. Co., 119 
Ala. 137, 24 So. 502, 43 L. R. A. 233; 
Finch v. Riverside & A. R. Co., 87 
Cal. 597; Elliott v. Fair Haven & 
W. R. Co., 32 Conn. 579; Canastota 
Knife Co. v. Newington Tramway 
Co., 69 Conn. 146, 36 Atl. 1107; 
County of Floyd v. Rome St. R. Co., 
77 Ga. 614, 3 S. E. 3; Chicago & W. 
I. R. Co. v. General Elec. R. Co., 79 
111. App. 569; Chicago, B. & I. R. 
Co. v. West Chicago St. R. Co., 156 
111. 255, 40 N. E. 1008, 29 L. R. A. 
485; Doane v. Lake St. El. R. Co., 
165 111. 510, 46 N. E. 520, 36 L. R. A. 
97; General Elec. R. Co. v. Chicago 
& W. I. R. Co., 184 111. 588, 56 N. E. 
963; Eichels v. Evansville St. R. 
Co., 78 Ind. 261; Snyder v. Ft. Madi- 
son St. R. Co., 105 Iowa, 284, 75 N. 
W. 179, 41 L. R. A. 345; Ottawa, O. 
C. & C. G. R. Co. v. Larson, 40 Kau. 
301, 19 Pac. 661, 2 L. R. A. 59; Ash- 
land & C. St. R. Co. v. Faulkner, 
106 Ky. 332, 45 S. W. 233, 51 S. W. 
806, 43 L. R. A. 554; Briggs v. Lew- 

-iston & A. H. R. Co., 79 Me. 363, 10 
Atl. 47; Taylor v. Portsmouth, K. & 



Y. St. R. Co., 91 Me. 193, 39 Atl. 
560; Hodges v. Baltimore Union 
Pass. R. Co., 58 Md. 603; Poole v. 
Falls Road Elec. R. Co., 88 Md. 533, 
41 Atl. 1069; Lonaconing M. & F. R. 
Co. v. Consolidated Coal Co., 95 Md. 
630, 53 Atl. 420; Attorney General 
v. Metropolitan R. Co., 125 Mass. 
515; Howe v. West End St. R. Co., 
167 Mass. 46, 44 N. E. 386. 

Taylor v. Bay City St. R. Co., 80 
Mich. 77, 45 N. W. 335. Abutting 
owners may however be entitled to 
compensation through special stat- 
utory provisions. Detroit City R. 
Co. v. Mills, 85 Mich. 634, 48 N. W. 
1007. Legislative provisions au- 
thorizing the operation of a railway 
by horse or other animal pow'er or 
by steam or by pneumatic or any 
other motive power or by any com- 
bination of them authorizes the use 
of electricity for the motive power 
although this was not discovered 
until after their enactment. 

Nichols v. Ann Arbor & Y. St. R. 
Co., 87 Mich. 361, 49 N. W. 538, 16 
L. R. A. 371; Dean v. Ann Arbor St. 
R. Co., 93 Mich. 330, 53 N. W. 396; 
Elfelt v. Stillwater St. R. Co., 53 
Minn. 68, 55 N. W. 11G; Placke v. 
Union Depot R. Co., 140 Mo. 634, 41 
S. W. 915. 

Hinchman v. Paterson Horse R. 
Co., 17 N. J. Eq. (2 C. E. Green) 75. 
Where the court in speaking of 
compensation with reference to a 
change in motive power said in 



844 



ITS CONTROL AND USE. 



199t 



part. "They are ordinarily, as in 
this case, required to be laid level 
with the surface of the street, in 
conformity with existing grades. 
No excavations or embankments to 
affect the land are authorized or 
permitted. The use of the road is 
nearly identical with that of the or- 
dinary highway. The motive power 
is the same. The noise and jarring 
of the street by the cars is not 
greater, and ordinarily less than 
that produced by omnibuses and 
other vehicles in ordinary use." 

Hogencamp v. Paterson Horse K. 
Co., 17 N. J. Eq. (2 C. E. Green) 83; 
Roebling v. Trenton Pass. R. Co., 
58 N. J. Law, 666, 34 Atl. 1090, 33 
L. R. A. 129; People v. Kerr, 37 
Barb. (N. Y.) 357; Brooklyn City 
& N. R. Co. v. Coney Island & B. R. 
Co., 35 Barb. (N. Y.) 364; Merrick 
v. Intramontaine R. Co., 118 N. C. 
1081, 24 S. E. 667; Carolina Cent. R. 
Co. v. Wilmington St. R. Co., 120 N. 
C. 520, 26 S. E. 913. Joint use of 
bridge by a street railway com- 
pany; additional servitude when 
imposed. Cincinnati Inclined Plane 
R. Co. v. Telegraph Ass'n, 48 Ohio 
St. 390, 27 N. E. 890, 12 L. R. A. 
534; Schaaf v. Cleveland, M. & S. 
R. Co., 66 Ohio St. 215, 64 N. E. 145; 
Pennsylvania R. Co. v. Montgomery 
County Pass. R. Co., 167 Pa. 62, 31 
Atl. 468, 27 L. R. A. 766; Lock- 
hart v. Craig St. R. Co., 139 Pa. 
419, 21 Atl. 26; Heilman v. Lebanon 
& A. St. R. Co., 145 Pa. 23, 23 Atl. 
389; Cumberland Tel. & T. Co. v. 
United Elec. R. Co., 93 Tenn. 492, 
29 S. W. 104, 27 L. R. A. 236; San 
Antonio Rapid Transit St. R. Co. 
v. Limburger, 88 Tex. 79, 30 S. W. 
533; Ogden City R. Co. v. Ogden 
City, 7 Utah, 207, 26 Pac. 288; Reid 
v. Norfolk City R. Co., 94 Va. 117, 
26 S. E. 428, 36 L. R. A. 274; Hobart 



v. Milwaukee City R. Co., 27 Wis. 
194; Chicago & N. W. R. Co. v. Mil- 
waukee R. & K. Elec. R. Co., 95 
Wis. 561, 70 N. W. 678, 37 L. R. A. 
856; La Crosse City R. Co. v. Hig- 
bee, 107 Wis. 389, 83 N. W. 701, 51 
L. R. A. 923. 

Younkin v. Milwaukee, Light, 
Heat & Traction Co., 120 Wis. 477, 
98 N. W. 215. Where it is held that 
an interurban line created an addi- 
tional servitude as to points on the 
country highway and did not lose 
its character as such when passing 
through the city of Waukesha and 
that therefore it created an addi- 
tional servitude upon the lots abut- 
ting on the street over which it 
passed. Nellis, St. Surface R. R~ 
pp. 135 et seq. See Lewis, Em. 
Dom. (2d Ed.) 115c. See, also v 
Philadelphia, W. & B. R. Co. v. Wil- 
mington City R. Co. (Del.) 38 Atl.. 
1067; Georgetown & L. Traction Co. 
v. Mulholland, 25 Ky. L. R. 578, 76 
S. W. 148; Green v. City & Subur- 
ban R. Co., 78 Md. 294, 28 Atl. 626; 
Austin v. Detroit, Y. & A. A. R. Co., 
134 Mich. 149, 96 N. W. 35; Ehret v., 
Camden & T. R. Co., 61 N. J. Eq.. 
171, 47 Atl. 562. 

The rule in the text above has 
been questioned of late in respect 
to the use of suburban highways by 
a street or interurban railway, so- 
called. Note the following cases: 
Cedar Rapids & M. C. R. Co. v. 
Cummins, 125 Iowa, 430, 101 N. W. 
176. By statute a railway extend- 
ing beyond the corporate limits is. 
known as an interurban line. 

Taylor v. Portsmouth, K. & Y. St. 
R. Co., 91 Me. 193, 39 Atl. 560; Cin- 
cinnati, L. & A. Elec. St. R. Co. v. 
Lohe, 68 Ohio St. 101, 67 N. E. 161.. 
An interurban electric road, under 
the statute, is classed as a street 
railroad. Zehren v. Milwaukee 



1998 



PUBLIC PROPERTY. 



845 



ligent or unlawful construction of a street railway may, however, 
be recovered. 738 

845. The contrary doctrine. 

The contrary doctrine is held in the state of New York, and the 
abutting owner, even where the fee of the street is vested in the 
public, is entitled to compensation for its occupation by a street 
railway. The leading case establishing this rule 73 was decided 
in 1868 and the arguments pro and con are well set out in the 
majority and the dissenting opinion. In the former, the court by 
Miller, Judge, holds in part: " The ground upon which these 



Elec. R. & Light Co., 99 Wis. 83, 74 
N. W. 538, 41 L. R. A. 575. But see 
Montgomery v. Santa Ana West- 
minister R. Co., 104 Cal. 186, 37 
Pac. 786, 25 L. R. A. 654. 

Newell v. Minneapolis, L. & M. R. 
Co., 35 Minn. 112, 27 N. W. 839, 
where the court say: "If it is, in 
fact, a passenger street railway 
within the city limits, how can it 
become anything else there because 
it becomes something else else- 
where? A person who desires to 
go from any part of Minneapolis to 
San Francisco has the same right 
to use the streets of the former city 
for the purpose of passing out of it 
on his way to his destination as a 
person who simply desires to pass 
from one place in Minneapolis to 
another in the same city. The use 
of the streets is just as legitimate, 
and just as clearly and completely 
a lawful and proper enjoyment of 
the public and common easement, 
in the one case as in the other." 

738 Lorie v. North Chicago City R. 
Co., 32 Fed. 270; Alton & U. A. 
Horse R. Co. v. Deitz, 50 111. 210. 

TOO Craig v. Rochester City & B. 
R. Co., 39 N. Y. 404; McCruden v. 
Rochester R. Co., 5 Misc. (N. Y.) 
59. "The amendment to the Consti- 
tution in 1874 did not at all affect 



the rule laid down in the Craig 
Case, 39 N. Y. 404. The legislature 
always had power to authorize the 
construction of street railways in 
any city. This they could do with- 
out compensation to the abutting 
owners, if the fee of the street was 
in the city while such owners were 
entitled to compensation if they had 
the fee." Peck v. Schenectady R. 
Co., 170 N. Y. 298, 27 N. Y. Law J. 
165. The rule in the Craig case fol- 
lowed in obedience to the doctrine 
of stare decisis, Parker, C. J., dis- 
senting. See, also, Wager v. Troy 
Union R. Co., 25 N. Y. 526, where it 
was said by the court: "With a sin- 
gle track, and particularly if the 
cars used upon it were propelled by 
horse power, the interruption of the 
public easement in the street might 
be very trifling and of no practical 
consequence to the public at large. 
But this consideration cannot affect 
the question of right of property or 
of the increase of the burden upon 
the soil. It would present simply a 
question of degree in respect to the 
enlargement of the easement and 
would not affect the principle that 
the use of a street for the purpose 
of a railroad imposed upon it is a 
new burden." 



84:5 ITS CONTROL AND USB. 1999 

cases are decided is, that the use of land for a railroad imposes an 
additional burden upon the owner of the fee. I am at a loss to see 
any apparent distinction in the application of the rule between 
cases where steam power is employed and those cases where the 
Toad is operated by horse power. It is true there is some differ- 
ence in the manner in which the road is constructed, and in the 
speed with which its cars are propelled, at times ; but there is pre- 
cisely the same exclusive appropriation of the track for the pur- 
poses intended in each case, to the absolute exclusion of all who 
may interfere with its mode of operation. The power to use the 
road for the conveyance of passengers is entirely with the com- 
pany, and no person can interfere with that method of conveyence, 
or with the right of the company to enjoy its monopoly. * * * 
The use of the railroad, no matter how it is operated, whether by 
horse or steam power, necessarily includes, to a certain extent, an 
exclusive occupation of a portion of the highway, for the track 
of the road, and the running of its cars by the company, and a 
permanent occupation of the soil. It requires that all other 
parties shall stand aside, and make way for its progress. This is 
clearly inconsistent with the legal object and design of a highway, 
which is entirely open and free to all, for purposes of locomotion, 
travel and transportation. The enjoyment of the easement in a 
highway never confers an exclusive right upon any one who may 
have occasion to use it, while the laying down of rails, and the 
employment of cars, is to the detriment and exclusion of all others 
at the time when the cars are running, and the restraint upon a 
free, undisturbed and general public use. It is an assertion of a 
right to the possession of the highway by the corporation, and an 
appropriation of it to private occupation, which, by lapse of time, 
might open into right, and vest a title in the company. Instead of 
being the exercise of a right of passage and repassage over a high- 
way or a street, it cannot, I think, be denied, that it is sometimes 
an obstruction to travel, and the infringement upon the rights of 
the public, and owners of land. In narrow streets, where the rails 
of the road border close upon the sidewalk, it not only interposes 
obstacles to the traveler, but inflicts injury upon the lot owner, 
by blockading up the way, and preventing a free access to the 
premises. The large and unwieldy vehicles which are used, which 
can only proceed upon a track laid for that purpose, with no 
capacity to turn out, so as to avoid or accommodate ordinary car- 



2000 



PUBLIC PROPERTY. 



riages, are often a source of annoyance and obstruction to the free 
passage of horses and carriages, for periods of greater or less dur- 
ation, and are inconsistent with the use of an open and free 
passage of the highway." In the dissenting opinion written by 
Judge Mason and in which two judges concurred, the arguments 
in favor of the contention that the abutting owner is not entitled 
to additional compensation are well stated and will be quoted in 
part in the notes. 740 



740 Craig v. Rochester City & B. 
R. Co., 39 N. Y. on p. 414, dissent- 
ing opinion: "Those cases decide 
that the construction of a common 
railway to be run with steam-en- 
gines in a public street, without 
the consent of the owners of the 
fee of the street, is the imposition 
of a new use, and an additional bur- 
den upon the land embraced in the 
street, and is the taking of the 
property of the owner without com- 
pensation, and consequently is pro- 
hibited by the Constitution. There 
Is certainly a broad distinction be- 
tween these cases and that of a 
street railroad, with cars to be 
drawn by horses, at a speed of not 
more than six miles per hour. In 
the leading case of Williams v. New 
York Cent. R. Co. (16 N. Y. 97), the 
street was literally destroyed for 
any of the original common use for 
which the land was originally 
taken. With forty engines, and the 
trains which they draw, passing 
over the street daily, any use for 
carriages or common vehicles must 
be so very extremely dangerous, 
that the use of the street, for any 
such purpose, would necessarily be 
very limited, if not abandoned; 
and, besides, the railroad corpora- 
tion, in such a case, takes the ex- 
clusive use of the street, and, in all 
these cases, actual and exclusive 
possession of the locus of the street 



is taken by the railroad corpora- 
tions. In the case at bar, no such 
thing occurs. The construction of 
this railroad in the streets of the 
city of Rochester, and the operating 
of it, when completed, does not in- 
volve the taking of any title to the 
land. It is true, the iron rails are 
to be laid down in the street, but 
they are required to conform to the 
grade of the street, and as the same 
may be changed from time to time 
by the city authorities, and the 
rails to be six inches wide, and laid 
even with the surface of the street. 
The track of the road does not be- 
come the property of the railroad. 
All that the railroad corporation 
gets, is a license to construct and 
operate the railroad, but to be en- 
joyed, subject to the rules and regu- 
lations of the common council; and 
these regulations, in the case at 
bar, are well calculated to secure 
all the original public use of the 
street as an easement for public 
travel, and the common use for car- 
riages and other vehicles, and no 
one is prohibited from passing over 
and along the track with teams and 
vehicles, but, on the contrary, these 
common rights are but little inter- 
fered with; all that is granted to 
the defendants is the right to use, 
not to take and hold, without at all 
excluding other persons from their 
former use of the same. The use 



846 



ITS CONTROL AND USE. 



2001 



846. Reasons for the difference in the rule as applied to steam 
and street railways. 

The difference in the rule as given in a preceding section by 
virtue of which, in the greater number of jurisdictions, the abut- 
ting property owner is permitted to recover additional compensa- 
tion for the use by a commercial steam road of a highway and 
does not possess this right in respect to the occupation of a high- 
way by a street railway, is entirely the result of conditions 
existent at the time when the question was first presented. Street 
railways then had not attained their modern development. The 
motive power was the use of horses or mules. The cars were 
small, the rate of travel slow and the character of the traffic 
extremely local. The roadbed, generally, was not of a substantial 
character, the rails being light in weight and occupying, because 
of these characteristics, less permanently the highway and inter- 
fering slightly with its use by pedestrians and other vehicles. 741 



which is thus granted is nothing 
more than the privilege of passing 
over the streets in question with a 
species of conveyance somewhat 
different from that which the public 
generally use. The inconvenience 
to the -public, in the common use of 
the street, must be small, and no in- 
dividual can complain, that a public 
street is appropriated to a public 
use somewhat different, unless it is 
to be regarded a new use, and im- 
poses an additional burden upon 
the land. This, in my judgment, is 
not a new use. When land is ac- 
quired to the public use of a street 
or highway, the public may lawfully 
claim the same for all the varying 
wants which the public may re- 
quire, only so that such use is in 
subordination to its principal use 
as a street. The principal uses of 
a street are for the passage and re- 
passage of the public, and this pub- 
lic right of passage is not limited to 
any particular mode of travel which 
may be in use at the time the land 
is taken, but to all such new meth- 
Abb. Corp. Vol. Ill 2 



ods as the progress of civilization 
and improvement may bring into 
use, only so that it remains a public 
street still, and devoted to the pub- 
lic use. The construction and use 
of such a street railway, as is pro- 
vided for in the case under consid- 
eration, is but a mode of exercising 
the public right of passage, and I 
perceive no objection to the public 
exercising this right by means of 
public agents, or through the me- 
dium of corporations, where they 
become public common carriers and 
do not further encroach upon the 
general, public use, than do those 
street railways constructed and run 
in conformity to the regulations 
prescribed in the case at bar. 
There is no new appropriation of 
the property of the plaintiff requir- 
ing compensation in damages. Nor 
is there a burden imposed upon his 
land, caused by a use not contem- 
plated in its original appropria- 
tion." 

7*iMordhurst v. Ft. Wayne & S. 
W. Traction Co., 163 Ind. 268, 71 N. 



2002 PUBLIC PROPERTY. g 846 

As opposed to these characteristics, the roadbed of the steam rail- 
way was of a permanent and substantial character and its occupa- 
tion necessarily exclusive. The motive power was steam and the 
engines in use produced more or less noise which tended to 
frighten horses using the highway and to destroy that perfect 
freedom of use of the highway by pedestrians and others using it. 
The speed and weight of the cars was greater and on this account 
trains less under control. The traffic was both passenger and 
freight and consisted not of local traffic but of that carried on 
between places at long distances. 742 

The street railway as a means of traffic has been rapidly 
approaching the character of an ordinary steam railway in the 
nature of its roadbed, the frequency of travel effecting, therefore, 
a greater permanency in the use of a street, the size of the equip- 
ment and the character of its traffic. Horses have been supplanted 
as a means of motive power by steam and electricity and the local 
street car system of fifty years ago has become, in many cases, a 
means for transportation of both passengers and freight from 
points within municipalities to suburban places many miles dis- 
tant. The point of the argument is that the substantial reason for 
the rule as originally adopted consisted of certain positive and 
negative characteristics differentiating a horse railway from a 
steam commercial road. These distinctions are gradually disap- 
pearing one by one but the rule still exists. 743 In a recent case 744 
in Wisconsin, some of the suggestions above were considered by 
the court and in the opinion is found the following language : 
''The street railway in its inception is a purely urban institution. 
It is intended to facilitate travel in and about the city, from one 
part of the municipality to another, and thus relieve the side- 
walks of foot passengers and the roadway of vehicles. It is thus 

:E. 642; Rische v. Texas Transporta- E. 291. An electric railroad operat- 
tion Co., 27 Tex. Civ. App. 33, 66 S. ing a road on the streets of a city 
"W. 324. See, also, authorities cited may make a valid traffic arrange- 
under 841, ante. ment with an interurban electric 

"* 2 See cases cited generally un- road company for the carriage of 

der 841 and 844, ante. merchandise for hire. Aycock v. 

743 Hannah v. Metropolitan St. R. San Antonio Brewing Ass'n, 26 Tex. 

Co., 81 Mo. App. 78; Degrauw v. Civ. App. 341, 63 S. W. 953. 

Long Island Elec. R. Co., 163 N. Y. 744 Zehren v. Milwaukee Elec. R. 

597, 57 N. E. 1108; State v. Dayton & L. Co., 99 Wis. 83, 74 N. W. 538, 

Traction Co., 64 Ohio St. 272, 60 N. 41 L. R. A. 575. 



846 ITS CONTROL AND USB. 2003 

an aid to the exercise of the easement of passage ; strictly a city 
convenience, for use in the city, by people living or stopping 
therein, and fully under the control of municipal authorities, who 
have been endowed with ample power for that purpose. This 
strictly urban character of the street railways remained practi- 
cally unchanged for many years, and during these years the long 
line of decisions grew up recognizing the street railway as merely 
an improved method of using the street, and rather as a help to 
the street than as a burden thereon. Time, however, has made 
changes in conditions. New motive power has been discovered, 
and it is found that by its use an enlarged city street-car may 
profitably run long distances, and compete to some extent with 
the steam railway. It is proposed to convert the city railways 
into lines of passenger transportation, covering long distances and 
connecting widely separated cities and villages, by using the 
country highways and operating long and heavy coaches, some- 
times made up into trains of several cars. Thus, the urban rail- 
way has developed into the interurban railway, and threatens soon 
to develop into the interstate railway. The small car which took 
up passengers at one corner, and dropped them at another, has 
become a large coach, approximating the ordinary railway coach 
in size, and has become a part, perhaps, of a train which sweeps 
across the country from one city to another, bearing its load of 
passengers ticketed through with an occasional local passenger 
picked up on the highway. The purely city purpose which the 
urban railway subserved has developed into or been supplanted 
by an entirely different purpose, namely, the transportation of 
passengers from city to city over long stretches of intervening 
country. When this train or car, with its load of through passen- 
gers, is passing through a country town, it is clearly serving no 
township purpose, save in the most limited sense. It is very diffi- 
cult to say that this use of a country highway is not an additional 
burden. It is built and operated mainly to obtain the through 
travel from city to city, and only incidentally to take up a pas- 
senger in the country town. This through travel is unquestiona- 
bly composed of people who otherwise would travel on the ordin- 
ary steam railroad, and would not use the highway at all. Thus 
the operation of this newly developed streeet railway (so called) 
upon the country road is precisely opposite to the operation of the 
urban railway upon the city street. It burdens the road with 



2004 



PUBLIC PROPERTY. 



847, 848 



travel which would otherwise not be there, instead of relieving it 
by the substitution of one vehicle for many. ' ' 

847. Abutting- owner. When entitled to compensation. 

The abutting owner, however, irrespective of his interest in the 
adjoining highway, is entitled to compensation for the occupation 
of that highway by a surface street railway when that use inter- 
feres with or destroys the easements which he possesses as an 
abutting owner in the access to his property and to light and air. 
These easements, as already stated, are property rights and 
where an authorized use of a highway impairs or destroys them, 
compensation can be received 7 * 5 



848. Elevated railroads. 

The subject of this section has been chiefly considered in the 
New York elevated railroad cases. An elevated road is different 
in its construction and method of operation from an ordinary 



745 Montgomery v. Santa Ana 
Westminister R. Co., 104 Cal. 186, 
37 Pac. 186, 25 L. R. A. 654; City of 
Pueblo v. Strait, 20 Colo. 13, 24 L. 
R. A. 392; Lake St. El. R. Co. v. 
Brooks, 90 111. App. 173. If an in- 
jury is suffered, no damages can be 
recovered. Snyder v. Fort Madison 
Street Ry. Co., 105 Iowa, 284, 75 N. 
W. 179, 41 L. R. A. 345; Kansas, N. 
& D. R. Co. v. Mahler, 45 Kan. 565, 
26 Pac. 22. Access to abutting 
property is not injured so as to give 
a claim for compensation by the 
construction of a road in a street 
sixty feet wide and which at its 
nearest point to abutting property 
is distant twenty-five feet. 

Walker v. Vicksburg, S. & P. R. 
Co., 52 La. Ann. 2036, 28 So. 324; 
Garrett v. Lake Roland El. R. Co., 
79 Md. 277, 24 L. R. A. 396; Spencer 
v. Metropolitan St. R. Co., 120 Mo. 
154, 23 S. W. 126, 22 L. R. A. 668; 
Kennelly v. City of Jersey City, 57 



N. J. Law, 293, 30 Atl. 531, 26 L. R. 
A. 281; Budd v. Camden Horse R. 
Co., 61 N. J. Eq. 543, 48 Atl. 1028; 
Roebling v. Trenton Pass. R. Co., 58 
N. J. Law, 666, 33 L. R. A. 129; New 
Mexican R. Co. v. Hendricks, 6 N. 
M. 611, 30 Pac. 901; Willamette 
Iron Works v. Oregon R. & Nav. 
Co., 26 Or. 224, 37 Pac. 1016, 29 L. 
R. A. 88; Hobart v. Milwaukee City 
R. Co., 27 Wis. 194. See, also, 
817 et seq., ante. But see Colclough 
v. City of Milwaukee, 92 Wis. 182, 65 
N. W. 1039, where it is held that 
where by the construction by a city 
of an approach to a railroad bridge 
occupying the full width of the 
street, the grade only is changed, 
abutters are not entitled to dam- 
ages or compensation for a taking 
of property. See, also, cases cited 
in the following section. Lewis, 
Em. Dom. (2d Ed.) 115o et seq.; 
Wood, Nuisances, cc. 13, 14. 



848 



ITS CONTROL AND USE. 



2005 



surface street railroad and because of the resulting interference 
with the easements of access, light and air, the property owner is 
entitled to compensation for the use of the street irrespective of 
the title. 748 The tendency of the authorities is to hold that the 
three private easements or quasi easements " are not confined to 
the abutter's one-half of the street nor laterally to the space in 
front of his lot, but to extend across the entire width of the street 
laterally and vertically as far as any actual detriment to light, 
air or access occasioned by the structure or operation of the ele- 
vated road is, in fact, experienced." The easement of light enti- 
tles the property owner, so it is held in the New York cases, 7 * 7 to 
receive upon his lot, by the process of radiation and reflection, the 
light from the sky, including the heavenly bodies, and the oppos- 
ing house fronts without any obstruction except such as may be 
caused by ordinary street uses among which the maintenance of 
the structure and the running of the train of an elevated railroad 
are not included. 748 The easement of air is the right to a circula- 



te Fifth Nat. Bank v. New York 
El. R. Co., 28 Fed. 231; Peyser v. 
Metropolitan El. R. Co., 13 Daly (N. 
Y.) 122; In re Gilbert El. R. Co., 38 
Hun (N. Y.) 438; Heimburg v. Man- 
hattan R. Co., 45 N. Y. Supp. 999; 
Waldmuller v. Brooklyn El. R. Co., 
40 App. Div. 242, 58 N. Y. Supp. 7; 
In re New York El. R. Co., 70 N. Y. 
327; Lahr v. Metropolitan El. R. 
Co., 104 N. Y. 268; Powers v. Man- 
hattan R. Co., 120 N. Y. 183; Kane 
v. New York El. R. Co., 125 N. Y. 
175; Pappenheim v. Metropolitan 
El. R. Co., 128 N. Y. 444; Kernochan 
v. New York El. R. Co., 128 N. Y. 
559, 130 N. Y. 651; Kearney v. Met- 
ropolitan El. R. Co., 129 N. Y. 76; 
American Bank Note Co. v. New 
York El. R. Co., 129 N. Y. 252; 
Mitchell v. Metropolitan El. R. Co., 
134 N. Y. 11; Doyle v. Metropolitan 
El. R. Co., 136 N. Y. 505; Livingston 
v. Metropolitan El. R. Co., 138 N. Y. 
76; Bischoff v. New York El. R. Co., 
138 N. Y. 257. See the subject fully 



considered in Demarest, El. R. R. 
Law. But see In re New York El. 
R. Co., 36 Hun (N. Y.) 427, which 
holds that an abutting owner is en- 
titled to damages for loss of light 
and air but not for smoke, noise, vi- 
bration, ashes or dust, or the un- 
sightly character of the structure. 
See, also, Williams v. New York 
Cent. R. Co., 16 N. Y. 97. In Illi- 
nois for injuries necessarily result- 
ing from the operation of a road 
there was no remedy previous to 
the Constitution of 1870 so it is 
held in the case of Chicago & E. G. 
R. Co. v. Loeb, 118 111. 211. See, 
also, Illinois Cent. R. Co. v. Grabill, 
50 111. 242, and Penn. Mut. Life Ins. 
Co. v. Heiss, 141 111. 60. 

747 See cases cited in preceding 
note. Sauer v. City of New York, 
44 App. Div. 305, 60 N. Y. Supp. 648. 

7*8 Lawrence v. Inhabitants of 
Nahant, 136 Mass. 477; Lincoln v. 
Commonwealth, 164 Mass. 1, 41 N. 
E. 112; Warren v. City of Grand 



PUBLIC PROPERTY. 

tion or flow of air between the lot and the street and to have that 
which flows from the street of the ordinary street quality or pa- 
rity. 748 The easement of access includes, obviously, unobstructed 
ingress and egress. 750 The Story case 751 determined that an ele- 
vated railroad in the streets of a city operated by steam power and 
constructed in respect to form, equipment and dimensions, like 
that under consideration, is a perversion of the use of a street from 
the purpose originally designed for it and is a use which neither 
the city authorities nor the legislature can legalize or sanction 
without providing compensation for the injury inflicted upon the 
property of abutting owners; that abutters upon a public street 
acquired and maintained upon the theory that it should ever con- 
tinue as a public highway for the free and common passage of in- 
habitants of a particular locality and all others passing and 
repassing through or by the same, acquire an easement in the bed 
of a street for ingress and egress to and from their premises and 
also for the free and uninterrupted passage and circulation of 
light and air through and over the street for the benefit of the 
property located thereon. That the ownership of the easement 
above described is an interest in real estate constituting property 
within the meaning of that term as used in the constitution of the 
state and requires compensation to be made before it can be law- 
fully taken for public use from its owner and that the erection of 
an elevated railroad, the use of which is intended to be permanent 
in a public street and upon which cars are propelled by steam 
engines generating gas, steam and smoke and deleterious sub- 
Haven, 30 Mich. 24; Jones v. Metro- hattan R. Co., 51 N. Y. Super. Ct. 
politan El. R. Co., 39 N. Y. State (19 J. & S.) 1; Drucker v. Manhat- 
Rep. 177, 14 N. Y. Supp. 632; Van tan R. Co., 106 N. Y. 157. 
Brunt v. Town of Flatbush, 59 Hun, TOO Glover v. Manhattan R. Co., 66 
192, 13 N. Y. Supp. 545; Pond v. How. Pr. (N. Y.) 77; Drucker v. 
Metropolitan El. R. Co., 112 N. Y. Manhattan R. Co., 106 N. Y. 157, 
186; Huddleston v. City of Eugene, 164. "The drippings of oil and wa- 
34 Or. 343, 55 Pac. 868, 43 L. R. A. ter and possibly the frequent col- 
444. umns interfere with convenience of 

749 Stanley v. New York El. R. access." Abendroth v. Manhattan 
Co., 44 N. Y. State Rep. 389; John- R. Co., 122 N. Y. 1, 11 L. R. A. 634. 
son v. New York El. R. Co., 44 N. "i Story v. New York El. R. Co., 
Y. State Rep. 935; Caro v. Metro- 90 N. Y. 122, 43 Am. Rep. 146, 11 Ab- 
politan El. R. Co., 46 N. Y. Super. bott's N. C. 236. 
Ct. (14 J. & S.) 138; Glover v. Man- 



849 



ITS CONTROL AND USB. 



2007 



stances and interrupting the free passage of light and air to and 
from adjoining premises, constitutes a taking of the abutting 
owners easements and renders the corporation liable to them for 
the damage occasioned by this taking. 752 The damages recoverable 
do not, however, include as elements a loss of business profit or a 
diminution of the rental value of property so long as it is used for 
the same business. 753 

849. Other street railroads. 

The question of whether street railroads operated by other 
forms of motive power than horse or electricity has been consid- 
ered in several states and the rule established that so long as 
they are street railroads proper in their essential characteristics, a 
difference in motive power will not, because of this fact, make 
them an additional burden or servitude for which the abutting 
owner is entitled to recover compensation. 754 A steam motor 
railroad has been held to come within this rule in the states of 
Arkansas, 753 Minnesota, 756 Maine, 757 and Oregon; 758 while in Ten- 



752 story v. New York El. R. Co., 
90 N. Y. 122; Lahr v. Metropolitan 
El. R. Co., 104 N. Y. 268. See, also, 
Lake St. El. R. Co. v. Brooks, 90 111. 
App. 173. 

753 Seventh Ward Nat. Bank v. 
New York El. R. Co., 53 N. Y. 
Super. Ct. (21 J. & S.) 412. 

T64 See cases cited in following 
notes under this section. 

755 Williams v. City Elec. St. R. 
Co., 41 Fed. 556. "The difference 
between street railroads and rail- 
roads for general traffic is well un- 
derstood. The difference consists 
in their use, and not in their motive 
power. A railroad, the rails of 
which are laid to conform to the 
grade and surface of the street, and 
which is otherwise constructed so 
that the public is not excluded from 
the use of any part of the street as 
a public way; which runs at a mod- 
erate rate of speed, compared to 
the speed of traffic railroads; which 



carries no freight, but only passen- 
gers, from one part of a thickly pop- 
ulated district to another, in a town 
or city and its suburbs, and for that 
purpose runs its cars at short inter- 
vals, stopping at the street cross- 
ings to receive and discharge its 
passengers, is a street railroad, 
whether the cars are propelled by 
animal or mechanical power. The 
propelling power of such a road 
may be animal, steam, electricity, 
cable, fireless engines, or com- 
pressed air; all of which motors 
have been, and are now, in use for 
the purpose of propelling street- 
cars. Encyclop. Britannica (9th 
Ed.) tit. 'Tramway.' * * * The 
distinction attempted to be drawn 
between animal and mechanical 
power, as applied to street rail- 
roads, is not sound. The motor is 
not the criterion. It is the use of 
the street, and the mode of that 
use. A street railroad propelled by 



2008 



PUBLIC PROPERTY. 



849 



nessee 759 and Michigan 76 the contrary has been held. The court 
in the Tennessee case based its decision upon the fact that steam 
motor railways approached more nearly the features characteris- 
tic of a commercial railroad, namely, in the noise, smoke and 
vibration, the motive power, the weight, length and speed of the 
trains, and the consequent danger to life and property. A street 
railroad constructed underground 761 or one occupying a street 
upon a different gradient 762 from that of the street proper it 
would seem, upon the reasoning adopted in the elevated railroad 
cases, constitute an additional burden or servitude for which 
compensation can be recovered. 



animal power might be so con- 
structed and operated as to be a 
public nuisance, and render its own- 
ers liable to those injured by its 
improper construction and opera- 
tion. The same is true of a street 
railroad operated by mechanical 
power. It may be so constructed 
and operated as to be a public nui- 
sance, but the use of steam on such 
a railroad, when authorized by law, 
does not per se make it a nuisance, 
or entitle the owners of the abut- 
ting property to compensation, 
though the fee of the street is 
vested in them. It is common 
knowledge that steam motors, for 
operating street railroads, are now 
constructed to emit so little gas, 
steam, or smoke, and make so little 
noise, that they do not constitute 
any reasonable ground of complaint 
to passengers or the public. They 
can be stopped and started as 
quickly and as safely as horse cars, 
and in some respects can be op- 
erated with greater accuracy and 
precision. Such motors are in use 
in cities and their suburbs in this 
country and in England. Encyclop. 
Britannica (9th Ed.). The opera- 
tion of a street railroad by such 



steam motors, when authorized by 
law, on a public street, is not an 
additional servitude or burden on 
the land already dedicated or con- 
demned to the use of a public 
street, and is therefore not a taking 
of private property, but is a modern 
and improved use, only, of the 
street, as public way, and affords to 
the abutting property owner, 
though he may own the fee of the 
street, no legal ground of com- 
plaint." 

756 Newell v. Minneapolis, L. & M. 
R. Co., 35 Minn. 112. 

TOT Briggs v. Lewiston & A. H. R. 
Co., 79 Me. 363, 10 Atl. 47. 

758 Paquet v. Mt. Taber St. R. Co., 
18 Or. 233, 22 Pac. 906; McQuaid v. 
Portland & V. R. Co., 18 Or. 237, 22 
Pac. 899. 

759 East End St. R. Co. v. Doyle, 
88 Tenn. 747, 13 S. W. 936, 9 L. R. 
A. 100. 

760 Nichols v. Ann Arbor & Y. St. 
R. Co., 87 Mich. 361, 49 N. W. 538. 

761 In re New York Dist. R. Co., 
107 N. Y. 42; Terry v. City of Rich- 
mond, 94 Va. 537, 38 L. R. A. 834. 

7G2 See cases cited in following 
section, note 765. 



850 



ITS CONTROL AND USE. 



2009 



850. General summary. 

A general rule, so far as one can be stated, in respect to the 
use of a highway by a railroad, which is a question of law, 
would, apparently, therefore, from the adopted cases, be as fol- 
lows: A legitimate use of a highway includes one by a railroad 
devoted exclusively to street passenger travel and the track of 
which conforms to the surface of the street. 763 This rule would 
exclude, therefore, a commercial steam road because of the char- 
acter of its traffic ; 764 an underground or elevated road because of 
the elevation or depression of the tracks and the necessary con- 
struction of a substructure or superstructure. 763 It would exclude 



763 Potts v. Quaker City El. R. 
Co., 12 Pa. Co. Ct. R. 593. See 
cases cited 844, ante. 

76* See cases cited under 841, 
ante. 

765 Koch v. North Ave. R. Co., 75 
Md. 222, 23 Atl. 463, 15 L. R. A. 377; 
In re New York Dist. R. Co., 107 N. 
Y. 42, 14 N. E. 187. An under- 
ground road in a city is regarded as 
a street way within the meaning of 
that constitutional amendment of 
1874, art. 3, 18, relative to consent 
of property owners. Potts v. 
Quaker City El. R. Co., 161 Pa. 396. 
See cases cited 848, 849, ante. 
But see Doane v. Lake St. El. R. 
Co., 165 111. 510, 46 N. E. 520, 36 L. 
R. A. 97. But see Sears v. Crocker, 
184 Mass. 586. Where the court in 
holding that the construction of a 
subway for public travel below the 
surface of the public street imposes 
no additional servitude on the land 
of abutting owners, said in part 
that the streets were subject to 
"every kind of travel and communi- 
cation for the movement or trans- 
portation of persons or property 
which is reasonable and proper in 
the use of a public street." And 
also "It is now a fact of common 
knowledge that the streets of those 



parts of Boston which are most 
crowded are entirely inadequate to 
accommodate the public travel in a 
reasonably satisfactory way if the 
surface alone is used. Our system, 
which leaves to the landowner the 
use of a street above or below or on 
the surface, so far as he can use it 
without interference with the rights 
of the public, is just and right, but 
the public rights in these lands are 
plainly paramount, and they in- 
clude, as they ought to include, the 
power to appropriate the streets 
above or below the surface as well 
as upon it, in any way that is not 
unreasonable, in reference either to 
the acts of all who have occasion to 
travel or to the effect upon the 
property of abutters. The increase 
of requirements for the public 
within the streets of our large cities 
has probably equalled, if it has not 
surpassed the increase of require- 
ments for business along the 
streets. The legislature, the guard- 
ian of public interests and of pri- 
vate rights, has determined that 
the space below the surface of cer- 
tain streets in Boston is needed for 
travel. The question is whether ac- 
tion under the statutes involves an 
acquisition of a new right as 



2010 



PUBLIC PROPERTY. 



850 



also a road not conforming to the surface of the street but with 
cuts and fills. 706 A difference in motive power, in speed of trains 
or size and weight of equipment, would not affect the question 
and are not generally regarded as determining elements. 767 The 



against the land owner, or only an 
appropriation and regulation of ex- 
isting rights. It hardly can be con- 
tended that this is an unreasonable 
mode of using the streets in refer- 
ence either to travelers or abutters. 
If it is not an unreasonable mode 
of using them, the mere fact that it 
deprives abutters of the use of 
vaults and other similar under- 
ground structures in the streets, 
which they have heretofore main- 
tained, is of little consequence. 
Abutters are bound to withdraw 
from occupation of streets above or 
below the surface whenever the 
public needs the occupied space for 
travel. The necessary require- 
ments of the public for travel were 
all paid for when the land was 
taken, whatever they may be, and 
whether the particulars of them 
were foreseen or not. The only 
limitation upon them is that they 
shall be of a kind which is not un- 
reasonable." 

Tee interstate Consol. Rapid Tran- 
sit R. Co. v. Early, 46 Kan. 197. A 
street railway may construct its 
line on the established grade of a 
street although the rest of the 
street has not been improved on 
this grade. Vaile v. City of Inde- 
pendence, 116 Mo. 333, 22 S. W. 
695; Sherlock v. Kansas City B. R. 
Co., 142 Mo. 172, 43 S. W. 629; 
Jackson v. Slate Belt Elec. St. R. 
Co., 7 North (Pa.) 286; Murray Hill 
Land Co. v. Milwaukee Light, Heat 
& Traction Co., 110 Wis. 555, 86 N. 
W. 199. But see Vigeant v. City of 
Marlborough, 175 Mass. 459, 56 N. 



E. 708; Underwood v. City of 
Worcester, 177 Mass. 173, 58 N. E. 
589. Tracks may be laid upon an 
established grade different from the 
one then existing. 

767 Chicago General R. Co. v. Chi- 
cago City R. Co., 186 111. 219, 57 N. 
E. 822, 50 L. R. A. 734, affirming 87 
111. App. 17; Snyder v. Ft. Madison 
St. R. Co., 105 Iowa, 284, 41 L. R. A. 
345; Koch v. North Ave. R. Co., 75 
Md. 222, 23 Atl. 463, 15 L. R. A. 377; 
Nieman v. Detroit Suburban St. R. 
Co., 103 Mich. 256, 61 N. W. 519. 
The use of a T rail by an electric 
railway company does not establish 
its character as a commercial road. 

Hinchman v. Paterson Horse R. 
Co., 17 N. J. Eq. (2 C. E. Green) 75. 
"They are ordinarily, as in this 
case, required to be laid level with 
the surface of the street, in con- 
formity with existing grades. No 
excavations or embankments to af- 
fect the land are authorized or per- 
mitted. The use of the road is 
nearly identical with that of the or- 
dinary highway. The motive power 
is the same. The noise and jarring 
of the street by the cars is not 
greater, and ordinarily less, than 
that produced by omnibuses and 
other vehicles in ordinary use. 

Paterson R. Co. v. Grundy, 51 N. 
J. Eq. 213, 26 Atl. 788; People v. 
Board of Railroad Corn'rs, 158 N. Y. 
711, 53 N. E. 1129, affirming 32 App. 
Div. 179, 52 N. Y. Supp. 908. Rail- 
road commissioners have no power 
to withhold consent for the opera- 
tion of a street railroad by kinetic 
motors. Such a motor is not a lo- 



850 



ITS CONTROL AND USE. 



2011: 



discussion in this and the preceding section is one which involves 
the question alone of the ab utter 's right to additional compensa- 
tion or, stated differently, the question of whether a particular use 
is an additional servitude or burden for which a recovery for 
damages can be had. A late writer 768 is inclined to the opinion 
that there is no rational basis for a distinction between surface 
roads and that either all should be admitted as legitimate or 
excluded as illegitimate street uses. " As between these alterna- 
tives, the latter should be chosen ; a railroad involves a fixed and 
permanent structure in the street which is more or less of an 
obstruction to ordinary travel. If one track is a legitimate use 
there seems to be no escape in the consequence that any number 



comotive steam power contemplated 
by Laws 1890, c. 565, 100, provid- 
ing that a street surface railroad 
may not operate its road by locomo- 
tive steam power. 

Pennsylvania R. Co. v. Montgom- 
ery County Pass. R. Co., 167 Pa. 62, 
31 Atl. 468, 27 L. R. A. 766; Taggart 
v. Newport St. R. Co., 16 R. I. 668, 
19 Atl. 326, 7 L. R. A. 205. A 
change in power from horse to elec- 
tric and the erection of poles neces- 
sary for its operation on a street 
railway does not impose an addi- 
tional burden on abutting property 
owners. City of Houston v. Hous- 
ton, Belt & M. P. R. Co., 84 Tex. 
581, 19 S. W. 786. See, also, with 
reference to trolley and other lines, 
so called, in addition to the cases 
already cited, the following: Bir- 
mingham Traction Co. v. Birming- 
ham R. & Elec. Co., 119 Ala. 137, 24 
So. 502, 43 L. R. A. 233; New York, 
N. H. & H. R. Co. v. Brideport Trac- 
tion Co., 65 Conn. 410, 32 Atl. 953, 
29 L. R. A. 367; Canastota Knife Co. 
v. Newington Tramway Co., 69 
Conn. 146; Chicago B. & Q. R. Co. 
v. West Chicago R. Co., 156 111. 255, 
40 N. E. 1008, 29 L. R. A. 485; Chi- 
cago & C. Terminal R. Co. v. Whit- 



ing, H. & E. C. St. R. Co., 139 Ind. 
297, 38 N. E. 604; Louisville Bag- 
ging Mfg. Co. v. Central Pass. R. 
Co., 95 Ky. 50, 23 S. W. 592; Taylor 
v. Portsmouth, K. & Y. St. R. Co., 91 
Me. 193; Poole v. Falls Road Elec. 
R. Co., 88 Md. 533; Howe v. West 
End St. R. Co., 167 Mass. 46, 44 N. 
E. 386; Dean V. Ann Arbor St. R. 
Co., 93 Mich. 330, 53 N. W. 396; 
Nieman v. Detroit Suburban St. R. 
Co., 103 Mich. 256, 61 N. W. 519; 
Placke v. Union Depot R. Co., 140 
Mo. 634; Jaynes v. Omaha St. R. 
Co., 53 Neb. 631, 74 N. W. 67, 39 L. 
R. A. 751. Poles and wires held an 
additional burden. Roebling v. 
Trenton Pass. R. Co., 58 N. J. Law, 
666, 34 Atl. 1090, 33 L. R. A. 129; 
Cincinnati Inclined Plane R. Co. v. 
Telegraph Ass'n, 48 Ohio St. 390, 27 
N. E. 890, 12 L. R. A. 534; Lockhart 
v. Craig St. R. Co., 139 Pa. 419, 21 
Atl. 26; Cumberland Tel. & T. Co. 
v. United Elec. R. Co., 93 Tenn. 492, 
29 S. W. 104, 27 L. R. A. 236; Dooly 
Block v. Salt Lake Rapid Transit 
Co., 9 Utah, 31, 33 Pac. 229, 24 L. R. 
A. 610. 

70s Lewis, Em. Dom. (2d Ed.) : 
115L 



.2012 PUBLIC PROPERTY. 851 

of tracks is legitimate; it rests simply with the proper public 
authorities to determine how many tracks will best subserve the 
public interests and so a street might be filled with railroad 
tracks and all ordinary traffic excluded therefrom and yet be 
held to be devoted to legitimate and proper street uses and this is 
-a palpable absurdity. For these reasons we think that railroads 
are not legitimate street uses : this conclusion does not prevent the 
use of a street by railroads since property devoted to one public 
use may be taken for another public use or a joint use permitted. 
It simply prevents such use being made without just compensation 
-to abutting property owners." 

851. Railways in streets. 

As already stated, the dominant power of control of public 
highways is vested in the legislature which has full authority to 
grant the right for legitimate uses of their occupation to railroads 
and this without consulting or conferring with the public authori- 
ties of a particular subordinate public corporation within the 
limits of which the highway may be located. 769 The authority 

709 Citizens' St. R. Co. v. City of ton, 36 Iowa, 299; Hine v. Keokuk 

Memphis, 53 Fed. 715; Perry v. & D. M. R. Co., 42 Iowa, 636; Linn 

New Orleans, M. & C. R. Co., 55 County v. Hewitt, 55 Iowa, 505; 

Ala. 413; Birmingham R. & E. Co. Hiss v. Baltimore & H. Pass. R. Co., 

v. Birmingham Traction Co., 122 52 Md. 242; Prince v. Crocker, 166 

Ala. 349; Wilmington City R. Co. v. Mass. 347, 44 N. E. 446, 32 L. R. A. 

People's R. Co. (Del.) 47 Atl. 245, 610; Inhabitants of Springfield v. 

construing General Incorporation Connecticut River R. Co., 58 Mass. 

Act, 103 et seq.; State v. Jack- (4 Cush.) 63; City of St. Paul v. 

sonville St. R. Co., 29 Fla. 590, 10 Chicago, M. & St. P. R. Co., 63 

So. 590; Savannah & T. R. Co. v. Minn. 330, 34 L. R. A. 184; Lincoln 

City of Savannah, 45 Ga. 602; City St. R. Co. v. City of Lincoln, 61 

of Chicago v. Illinois Steel Co., 66 Neb. 109, 84 N. W. 802. The rights 

111. App. 561; City of Jacksonville v. of a street railway company are es- 

Jacksonville R. Co., 67 111. 540. But tablished by the general statutes 

land dedicated for a public square and not by the ordinances of a mu- 

cannot be diverted from this use by nicipality. Morris & E. R. Co. v. 

either the legislature nor a munici- City of Newark, 10 N. J. Eq. (2 

pal corporation and devoted to a Stockt.) 352; Jersey City v. Jersey 

railroad or to a private use. City & B. R. Co., 20 N. J. Eq. (5 C. 

City of Clinton v. Cedar Rapids & E. Green) 3CO; Inhabitants of Bur- 

M. R. R. Co., 24 Iowa, 455; Chicago lington v. Pennsylvania R. Co., 56 

N. & S. W. R. Co. v. Town of New- N. J. Eq. 259, 38 Atl. 849; In re 



851 



ITS CONTROL AND USB. 



2013: 



may also be given to such a subordinate public corporation to be 
exercised by it either exclusively 770 or in conjunction with the 
legislature. 771 The authority to grant such a right may be exer- 



Trenton St. R. Co., 58 N. J. Eq. 533; 
In re Peoples' Rapid Transit R. Co., 
57 Hun, 587, 10 N. Y. Supp. 849; In 
re Washington St. A. & P. R. Co., 
115 N. Y. 442, 22 N. E. 356. General 
railroad act authorizes the construc- 
tion of horse railroads on streets of 
the cities of the state except the 
city of New York. 

Peoples' Rapid Transit Co. v. 
Dash, 125 N. Y. 93, 26 N. E. 25, 10 
L. R. A. 728. The general railroad 
act of New York 1850 confers no 
authority for the construction of a 
two story elevated road. See, also, 
as holding the same, the case of 
Schaper v. Brooklyn & L. I. Cable 
R. Co., 124 N. Y. 630; Cincinnati & 
S. G. A. St. R. Co. v. Village of Cum- 
minsville, 14 Ohio St. 523; Harris- 
burg City Pass. R. Co. v. City of 
Harrisburg, 149 Pa. 465, 24 Atl. 56; 
Tennessee & A. R. Co. v. Adams, 40 
Tenn. (3 Head), 596. See Century 
Digest, vol. 41, col. 1788 et seq.; El- 
liott, R. R. 1076; Elliott, Roads & 
S. cc. 19, 20. But see Donnaher v. 
State, 16 Miss. (8 Smedes & M.) 
649; Atlantic & P. R. Co. v. City of 
St. Louis, 3 Mo. App. 315; Id., 66 
Mo. 228. 

770 Columbus & W. R. Co. v. With- 
erow, 82 Ala. 190, 3 So. 23; Town of 
Arcata v. Arcata & M. R. Co., 92 
Cal. 639, 28 Pac. 676; Brown v. At- 
lanta R. & P. Co., 113 Ga. 462, 39 S. 
E. 71; Moses v. Pittsburgh, Ft. W. 
& C. R. Co., 21 111. 516; Cairo & V. 
R. Co. v. People, 92 111. 170; Cook 
County v. Great Western R. Co., 
119 111. 218; Wolfe v. Covington & 
L. R. Co., 54 Ky. (15 B. Mon.) 404; 
Brown v. Duplessis, 14 La. Ann. 



842; Canal & C. St. R. Co. v. Cres- 
cent City R. Co., 41 La. Ann. 561, 6 
So. 849; New Bedford & F. St. R. 
Co. v. Achushnet St. R. Co., 143 
Mass. 200, 9 N. E. 536. There is no 
necessity for the concurrent action 
of two or more towns as required 
by Pub. St. Mass. c. 113, 49, where 
the tracks are all to be laid in the 
same city. 

South Boston R. Co. v. Middlesex 
R. Co., 121 Mass. 485; People v. Ft. 
Wayne & E. R. Co., 92 Mich. 522, 52 
N. W. 1010, 16 L. R. A. 752; Jersey 
City v. Jersey City & B. R. Co., 20 
N. J. Eq. (5 C. E. Green) 360; Mont- 
clair Military Academy v. North 
Jersey Street R. Co., 65 N. J. Law, 
328, 47 Atl. 890; Stuyvesant v. Pear- 
sail, 15 Barb. (N. Y.) 244; In re 
Syracuse & Southern Bay R. Co., 33 
Misc. 510, 68 N. Y. Supp. 881; 
Reeves v. Philadelphia Traction R. 
Co., 152 Pa. 153, 25 Atl. 516; Pitts- 
burgh & B. Pass. R. Co. v. Borough 
of Birmingham, 51 Pa. 41; Aycock 
v. San Antonio Brewing Ass'n, 26 
Tex. Civ. App. 341, 63 S. W. 953; 
Dooly Block v. Salt Lake Rapid 
Transit Co., 9 Utah, 31, 33 Pac. 229, 
24 L. R. A. 610. The right granted 
to exclusively control streets of a 
city confers no power on the city to 
devote the entire width to railroad 
use so as to injuriously affect the 
property rights of abutting owners. 
Jordan v. City of Ben wood, 42 W. 
Va. 312, 26 S. E. 266, 36 L. R. A. 
519. A city Is not liable for inju- 
ries resulting from the construction 
on its authority of railroad tracks 
in a street. 

771 Citizens' St. R. Co. v. Jones, 34 



:2014. 



PUBLIC PROPERTY. 



851 



cised by some designated body or official only after an application 
and investigation in respect to the necessity for and feasibility of 



Fed. 579; Port of Mobile v. Louis- 
ville & N. R. Co., 84 Ala. 115, 4 So. 
106; City of South Pasadena v. Los 
Angeles Terminal R. Co., 109 Cal. 
315, 41 Pac. 1093. A city has no ex- 
traterritorial jurisdiction in respect 
to rate of fares charged by the 
street railway. Almand v. Atlanta 
Consol. St. R. Co., 108 Ga. 417, 34 S. 
E. 6; Chicago, K. I. & P. R. Co. v. 
City of Joliet, 79 111. 25. A munici- 
pality may be estopped to deny the 
right of a railroad company to use 
certain public grounds for its right 
of way. 

Tudor v. Chicago & S. S. Rapid 
Transit Co., 164 111. 73, 46 N. E. 446, 
36 L. R. A. 379; Michigan City v. 
Boeckling, 122 Ind. 39, 23 N. E. 518. 
A city has the power to grant the 
use of its streets by a street rail- 
way company and is not liable for 
negligence of that company. Cook 
v. City of Burlington, 36 Iowa, 357; 
O'Brien v. Baltimore Belt R. Co., 74 
Md. 363, 22 Atl. 141, 13 L. R. A. 126. 

Detroit City R. Co. v. Mills, 85 
Mich. 634, 48 N. W. 1007. Where in 
the use of motive power a company 
may exceed its rights, the question 
is one between the state and the 
railroad company. It cannot be 
raised collaterally in a controversy 
between an abutting lot owner and 
the company. State v. Lindell R. 
Co., 151 Mo. 162, 52 S. W. 248; 
Swenson v. City of Lexington, 69 
Mo. 157. A city under its charter 
granting permission to a railroad 
company for the construction of its 
road along a street is not liable to 
the abutting land owners for any in- 
terruption of their use of the street. 

Donnaher v. State, 16 Miss. (8 



Smedes & M.) 649; Morris & E. R. 
Co. v. City of Newark, 10 N. J. Eq. 
(2 Stockt.) 352; Methodist Episco- 
pal Church v. Pennsylvania R. Co., 
48 N. J. Eq. 452, 22 Atl. 183. A city 
cannot give a railroad company ter- 
minal rights in a street where, by 
legislative grant, it is confined to a 
mere right of passage. State v. In- 
habitants of Trenton, 54 N. J. Law, 
92, 23 Atl. 281; Kennelly v. City of 
Jersey City, 57 N. J. Law, 293, 30 
Atl. 531, 26 L. R. A. 281; West Jer- 
sey Traction Co. v. Shivers, 58 N. J. 
Law, 124, 33 Atl. 55. The privilege 
of laying tracks in a city by a street 
railroad company must be granted 
by ordinance. 

Theberath v. City of Newark, 37 
N. J. Law, 309, 30 Atl. 528; Budd v. 
Camden Horse R. Co., 61 N. J. Eq. 
543, 48 Atl. 1028; People v. Gilroy, 
56 Hun, 537, 9 N. Y. Supp. 833; Id., 
9 N. Y. Supp. 686; People v. Barn- 
ard, 48 Hun (N. Y.) 57; Delaware, 
L. & W. R. Co. v. Syracuse, L. & B. 
R. Co., 28 Misc. 456, 59 N. Y. Supp. 
1035; People v. Newton, 112 N. Y. 
396. The change of motive power 
from horse to cable line cannot be 
made without the consent of the 
city. 

Ghee v. North Union Gas Co., 158 
N. Y. 510, 53 N. E. 692; Musser v. 
Fairmount & A. St. R. Co., 5 Pa. 
Law J. 466; Appeal of Williamsport 
Pass. R. Co., 120 Pa. 1, 13 Atl. 496; 
City of Philadelphia v. River Front 
R. Co., 173 Pa. 334, 34 Atl. 60; State 
v. Newport St. R. Co., 16 R. I. 533, 
18 Atl. 161; Smith v. East End St. 
R. Co., 87 Tenn. 626, 11 S. W. 709; 
Laager v. City of San Antonio (Tex. 
Civ. App.) 57 S. W. 61; Texarkana 



851 



ITS CONTROL AND USE. 



2015 



the proposed line 772 and this rule applies not only to the original 
construction but also extensions and changes. 773 In still further 



& Ft. S. R. Co. v. Texas & N. O. R. 
Co., 28 Tex. Civ. App. 551, 67 S. W. 
525. 

Wood v. City of Seattle, 23 Wash. 
1, 62 Pac. 135. The city of Seattle 
under its charter power, art. 4, 1, 
18, has the right to accept the vol- 
untary surrender of a street rail- 
way franchise. Yates v. Town of 
West Grafton, 34 W. Va. 783, 12 S. 
E. 1075. See, also, Cooper v. Aldeu, 
Har. (Mich.) 72; Nellis, St. Surface 
R. R. c. 2, 5, with authorities 
cited. 

772 people v. Craycroft, 111 Cal. 
544; Hunt v. Chicago H. & D. R. 
Co., 121 111. 638, 13 N. E. 176; Met- 
ropolitan City R. Co. v. City of Chi- 
cago, 96 111. 620; City R. Co. v. Cit- 
izens' St. R. Co. (Ind.) 52 N. E. 157; 
Appeal of Cherryfield & M. Elec. R. 
Co., 95 Me. 361, 50 Atl. 27; In re 
Keene Elec. R. Co., 68 N. H. 434, 41 
Atl. 775; In re Nashua St. R. Co., 69 
N. H. 275, 41 Atl. 858; Kennelly v. 
City of Jersey City, 57 N. J. Law, 
293, 30 Atl. 531, 26 L. R. A. 281; 
Hutchinson v. Borough of Belmar, 
(N. J. Err. & App.) 45 Atl. 1092, af- 
firming 61 N. J. Law, 443; West 
Jersey Traction Co. v. Camden 
Horse R. Co., 53 N. J. Eq. 163; In re 
Union El. R. Co., 49 Hun, 609, 1 N. 
Y. Supp. 797; New York Cable Co. 
v. City of New York, 104 N. Y. 1, 
10 N. E. 332, construing N. Y. rapid 
transit act (Laws 1875, c. 606) ; In 
re Rochester Elec. R. Co., 57 Hun, 
56, 10 N. Y. Supp. 379; In re Atlan- 
tic Ave. R. Co., 58 Hun, 609, 12 N. 
Y. Supp. 228; In re New York Cable 
R. Co., 40 Hun (N. Y.) 1; Bohmer v. 
Haffen, 35 App. Div. 381, 54 N. Y. 
Supp. 1030, affirming 22 Misc. 565, 



50 N. Y. Supp. 857; People v. Board 
of Railroad Com'rs, 42 App. Div. 
366, 59 N. Y. Supp. 144; In re Brook- 
lyn Rapid Transit Co., 62 How. Pr. 
(N. Y.) 404; Town of Lysander v. 
Syracuse, L. & B. R. Co., 31 Misc. 
330, 65 N. Y. Supp. 415. Commis- 
sioners of highways. In re Amster- 
dam J. & G. R. Co., 86 Hun (N. Y.) 
578; In re Union El. R. Co., 112 N. 
Y. 61, 19 N. E. 664, 2 L. R. A. 359; 
In re Peoples' R. Co., 112 N. Y. 578, 
21 N. E. 367; People v. Grant, 138 
N. Y. 653, 34 N. E. 513. A failure 
to advertise properly the time and 
place when an application will be 
made for a franchise is fatal to the 
right of the board to entertain the 
application. 

People v. Board of Railroad 
Com'rs, 156 N. Y. 693, affirming 30 
App. Div. 69, 51 N. Y. Supp. 781. 
An application for a change of mo- 
tive power having been granted 
whereby the company has acquired 
a right in the nature of a contract, 
a board cannot subsequently recon- 
sider or review its action. People 
v. Railroad Com'rs, 160 N. Y. 202, 54 
N. E. 697; Kittinger v. Buffalo Trac- 
tion Co., 160 N. Y. 377, 54 N. E. 
1081; In re Nassau Elec. R. Co., 167 
N. Y. 37, 60 N. E. 279; Appeal of 
Tp. of North Manheim (Pa.) 14 Atl. 
137; Lehigh Coal & Nav. Co. v. In- 
ter-County St. R. Co., 167 Pa. 75, 31 
Atl. 471; City of Burlington v. Bur- 
lington Traction Co., 70 Vt. 491, 41 
Atl. 514. 

773 City of Hartford v. Hartford 
St. R. Co., 73 Conn. 327, 47 Atl. 330; 
Rapid R. Co. v. City of Mt. Clemens, 
118 Mich. 133, 76 N. W. 318. Con- 
struction of "Y." 



2016 



PUBLIC PROPERTY. 



851 



instances, the right of occupation may be granted only upon the 
. consent of the OAvners of abutting property. 774 Whether the right 
of the occupation of a highway by a steam railway is derived from 
one or more of these sources, the extent of its rights will be deter- 
mined largely by the language of the grant which must be express, 
the authority of the grantor of the right and the power or the 
capacity of the grantee to accept the grant. 775 The language of 
the grant of authority whether an act of the legislature or a reso- 
lution or ordinance of some municipal council or body will deter- 
mine the extent of the rights granted and whatever their character 
in this respect, they can only be given because of a proposed public 
service or use. Irrespective of the question of compensation to 
the abutting owner, the basic right of a railroad of any class for 
the occupation of a highway or any portion of it is this public 
use. 776 The authority for the occupation or use of a highway can- 



774 Linden Land Co. v. Milwaukee 
Elec. R. & L. Co., 107 Wis. 493, 83 
N. W. 851. Abutting owners con- 
trol only streets adjoining them. 
See, also, authorities cited in 
836, 837, ante. 

775 Williams v. Citizens' R. Co., 
130 Ind. 71, 15 L. R. A. 64; Koch v. 
North Ave. R. Co., 75 Md. 222, 15 
L. R. A. 377; Detroit Citizens' St. 
R. Co. v. City of Detroit, 110 Mich. 
384, 35 L. R. A. 859; Traphagen v. 
Jersey City, 52 N. J. Law, 65, 18 
Atl. 586, 696. A city has no power 
to confer upon a railroad company 
a right to occupy exclusively any 
portion of a public street. 

Kelly v. City of Paterson, 35 N. 
J. Law, 196; De Grauw v. Long Is- 
land Elec. R. Co., 163 N. Y. 597, 57 
N. E. 1108. Under authority to 
"convey persons and property in 
cars for compensation," cars may 
be operated by street surface rail- 
roads designed and used exclusively 
for carrying express matter, freight 
or property. Gillette v. Chester & 
M. R. Co., 2 Pa. Dist. R. Co., 450. 
Act May 14th, 1889, providing for 



the operation of street roads "by 
any power other than by locomo- 
tives," authorizes the use of elec- 
tricity. 

Com. v. Borough of West Chester, 
9 Pa. Co. Ct. R. 542. Act May 14th, 
1889, authorizes the construction 
and operation of electric railroads 
operated by means of permanent 
overhead wires carried on poles set 
within a street line. Citizens' St. 
R. Co. v. Africa, 100 Tenn. 26; 
Schwede v. Hemrich Bros. Brewing 
Co., 29 Wash. 21, 69 Pac. 362. A 
private corporation can secure no 
right to construct a railroad track 
on a public street through the 
granting of a permit to this effect 
by a board of public works. 

770 Florida Cent. & P. R. Co. v. 
Ocala St. & S. R. Co., 39 Fla. 306, 
22 So. 692; Hanbury v. Woodward 
Lumber Co., 98 Ga. 54, 26 S. E. 477; 
Chicago Gen. R. Co. v. Chicago City 
R. Co., 62 111. App. 502; Hibbard, 
Spencer, Bartlett & Co. v. City of 
Chicago, 173 111. 91, 50 N. E. 256, 40 
L. R. A. 621; Cook v. City of Bur- 
lington, 36 Iowa, 357; O'Neil v. 



851 



ITS CONTROL AND USE. 



2017 



not be granted either by the legislature or a body to whom the 
power has been declared except upon a consideration of the prin- 
ciple that such use is subordinate to the rights of the public at 
large, 777 and if it appears that a highway is already burdened by 
existing grants a further one may be withheld. The right to use 
is also taken, affected with the implied condition that the highway 
shall not be used in such a manner as to destroy its proper and 
legitimate use by the public at all times. 778 



Lamb, 53 Iowa, 725. The presump- 
tion is that the railroad is for a 
public not a private use. 

Heath v. Des Moines & St. L. R. 
Co., 61 Iowa, 11; Mikesell v. Dur- 
kee, 36 Kan. 97, 12 Pac. 351, 34 Kan. 
509; Bradley v. Pharr, 45 La. Ann. 
426, 12 So. 618; Green v. City of 
Portland, 32 Me. 431; Gustafson v. 
Hamm, 56 Minn. 334, 57 N. W. 1054, 
22 L. R. A. 565; St. Louis R. Co. v. 
Southern R. Co. (Mo.) 15 S. W. 
1013. A street railway operated 
solely for the carrying of passen- 
gers is a public highway and its use 
a public one. 

Lackland v. North Missouri R. 
Co., 31 Mo. 180; Brown v. Chicago 
Great Western R. Co., 137 Mo. 529, 
38 S. W. 1099. All railroads are de- 
clared public highways within the 
meaning of Mo. Const., art. 12, 14. 
Glaessner v. Anheuser-Busch Brew. 
Co., 100 Mo. 508, 13 S. W. 707; City 
of Newark v. Delaware, L. & W. R. 
Co., 42 N. J. Eq. 196, 7 All. 123; 
Montgomery v. Inhabitants of Tren- 
ton, 36 N. J. Law, 79; Taylor v. 
Dunn, 652, 16 S. W. 732; Cereghino 
v. Oregon Short Line R. Co., 26 
Utah, 467, 73 Pac. 634. 

TIT Kansas Pac. R. Co. v. Pointer, 
9 Kan. 620; Jeffersonville, M. & I. 
R. Co. v. Esterle, 76 Ky. (13 Bush.) 
667; Middlesex R. Co. v. Wakefield, 
103 Mass. 262; City of Detroit v. 
Ft. Wayne & E. R. Co., 90 Mich. 
Abb. Corp. Vol. Ill 3 



646, 51 N. W. 688; City of St. Paul 
v. Chicago, M. & St. P. R. Co., 63 
Minn. 330, 34 L. R. A. 184. 

Armstead v. Mendenhall, 83 Minn. 
136, 85 N. W. 929. A street car 
company operating cars in public 
streets and the public lawfully us- 
ing a street have rights alike ex- 
cept that the cars cannot leave the 
track, in which respect the com- 
pany has a permanent right over 
its tracks. Newark Pass. R. Co. v. 
Block, 55 N. J. Law, 605, 27 Atl. 
1067, 22 L. R. A. 374. The principle 
applied to rate of speed of cars. 

Buhrens v. Dry-Dock, E. B. & B. 
R. Co., 53 Hun, 571, 6 N. Y. Supp. 
224. Street cars have no greater 
rights where they cross over streets 
than those of other vehicles. Kel- 
linger v. Forty-second St. & G. St. 
Ferry R. Co., 50 N. Y. 206; Houston 
& T. C. R. Co. v. Carson, 66 Tex. 
345, 1 S. W. 107; Dooly Block v. 
Salt Lake Rapid Transit Co., y 
Utah, 31, 33 Pac. 229, 24 L. R. A. 
610. 

7 City of Baltimore v. Baltimore 
Trust & Guarantee Co., 166 U. S. 
673; People v. Rich, 54 Cal. 74; 
Commonwealth v. City of Frankfort, 
92 Ky. 149, 17 S. W. 287; Detroit 
City R. Co. v. Mills, 85 Mich. 634; 
Watson v. Robberson Ave. R. Co., 
69 Mo. App. 548; Lockwood v. Wa- 
bash R. Co., 122 Mo. 86, 26 S. W. 
698; Schulenberg & B. Lumber Co. 



2018 



PUBLIC PROPERTY. 



851 



The grant of authority may, by its terms, be regarded as a 
privilege, irrevocable in its character or only upon certain con- 
ditions and, therefore, a contract obligation protected by the Fed- 
eral constitution against an unwarranted interference with the 
rights acquired under it, 779 or it may be considered as a mere 
license revocable at pleasure and conveying no rights of the char- 



v. St. Louis, K. & N. W. R. Co., 129 
Mo. 455, 31 S. W. 796; Mahady v. 
Bushwick R. Co., 91 N. Y. 148; 
Dooly Block v. Salt Lake Rapid 
Transit Co., 9 Utah, 31, 4 Am. Elec- 
trical Gas. 189, 24 L. R. A. 610. 

779 Baltimore Trust and Guaran- 
tee Co. v. City of Baltimore, 64 Fed. 
153 ; Town of Arcata v. Arcata & M. 
R. Co., 92 Cal. 639, 28 Pac. 676; 
Denver Tramway Co. v. Londoner, 
20 Colo. 150, 37 Pac. 723; Fair Ha- 
ven & W. R. Co. v. City of New Ha- 
ven, 74 Conn. 102, 49 Atl. 863; At- 
lanta R. & P. Co. v. Atlanta Rapid 
Transit Co., 113 Ga. 481, 39 S. E. 
12; People v. Chicago West Div. R. 
Co., 118 111. 113. 

City of Chicago v. Union Stock 
Yards & Transit Co., 164 111. 224, 
35 L. R. A. 281. Where a city has 
acquiesced in the use for twenty 
years by a railroad company of its 
streets, has authorized its construc- 
tion and required it to make many 
improvements, it is estopped to 
deny the rightful authority to so 
use and occupy the streets. Har- 
vey v. Aurora & G. R. Co., 186 111. 
283, 57 N. E. 857; City R. Co. v. Cit- 
izens' St. R. Co. (Ind.) 52 N. E. 157; 
City of Burlington v. Burlington St. 
R. Co., 49 Iowa, 144; Louisville & N. 
R. Co. v. Bowling Green R. Co., 23 
Ky. L. R. 273, 63 S. W. 4; New Or- 
leans C. & L. R. Co. v. City of New 
Orleans, 44 La. Ann. 748; State v. 
New Orleans & C. R. Co., '44 La. 
Ann. 1026, 11 So. 709. 

Medford & C. R. Co. v. Inhabit- 



ants of Somerville, 111 Mass. 232. 
What is sufficient notice of a revo- 
cation of the authority to construct 
a street railway discussed. Elec- 
tric R. Co. v. City of Grand Rapids, 
84 Mich. 257, 47 N. W. 567. Condi- 
tions are void imposed after a grant 
of privileges with an acceptance. 

Union St. R. Co. v. Saginaw Circ. 
Judge, 113 Mich. 694; Nash v. 
Lowry, 37 Minn. 261, 33 N. W. 787; 
Union Depot R. Co. v. Southern R. 
Co., 105 Mo. 562, 16 S. W. 920. A 
street railway company accepting 
the provisions of a city charter en- 
acted after its organization stands 
in the same position that it would 
had the charter been in effect be- 
fore it was incorporated. Newark 
& H. Traction CO. v. Borough of 
North Arlington, 67 N. J. Law, 161, 
50 Atl. 345; City of Elmira v. Maple 
Ave. R. Co., 51 Hun, 638, 4 N. Y. 
Supp. 943. The right to operate 
lines in a specified manner cannot 
be subsequently interfered with. 
Herzog v. New York El. R. Co., 37 
N. Y. State Rep. 567, 14 N. Y. Supp. 
296; Brooklyn Heights R. Co. v. 
City of Brooklyn, 18 N. Y. Supp. 
876; Brooklyn Cent. R. Co. v. Brook- 
lyn City R. Co., 32 Barb. (N. Y.; 
358; Delaware, L. & W. R. Co. v. 
City of Buffalo, 65 Hun, 464, 20 N. 
Y. Supp. 448. A municipality can- 
not revoke authority granted by the 
legislature. City of Troy v. Troy & 
L. R. Co., 49 N. Y. 657; City of New 
York v. Eighth Ave. R. Co., 118 N. 
Y. 389, 23 N. E. 550; Akron, B. & C. 



851 



ITS CONTROL AND USE. 



2019 



acter above indicated. 780 The question of the right of the legisla- 
ture or a subordinate public corporation to grant an exclusive 



R. Co. v. Village of Bedford, 6 Ohio 
N. P. 276. 

City of Columbus v. Columbus St. 
R. Co., 45 Ohio St. 98, 12 N. B. 651. 
A street railway company by the 
construction and operation of its 
road under a franchise granted by a 
city ordinance accepts the whole or- 
dinance, its burdens and privileges 
alike. Mill Creek Valley St. R. Co. 
v. Village of Carthage, 18 Ohio Circ. 
R. 216; Cincinnati & S. R. Co. v. 
Village of Carthage, 36 Ohio St. 
631; Scranton & P. Traction Co. v. 
Delaware & H. Canal Co., 1 Pa. 
Super. Ct. 409;- Hannum v. Media, 
M. & A. & C. R. Co., 8 Del. Co. R. 
(Pa.) 91; Hestonville, M. & F. Pass. 
R. Co. v. City of Philadelphia, 89 
Pa. 210; Junction Pass. R. Co. v. 
Williamsport Pass. R. Co., 154 Pa. 
116, 26 Atl. 295. The state , alone 
has the power to enforce the forfei- 
ture. 

Pawcatuck Valley St. R. Co. v. 
Town Council of Westerly, 22 R. I. 
307, 47 Atl. 691. An ordinance per- 
mitting the company to use certain 
streets and prescribing the use of a 
certain kind of rails in respect to 
the rails is not a contract so as to 
prohibit the city council from sub- 
sequently changing the rails. State 
v. Lebanon & N. Turnpike Co. (Tex. 
Civ. App.) 61 S. W. 1096; City ot 
Houston v. Houston Belt & M. P. R. 
Co., 84 Tex. 581, 19 S. W. 786; Dern 
v. Salt Lake City R. Co., 19 Utah, 
46, 56 Pac. 566. 

Spokane St. R. Co. v. City of Spo- 
kane Falls, 6 Wash. 521, 33 Pac. 
1072. A city may be estopped by 
acquiescence in the use of streets 
"by a railroad company and the col- 



lection of taxes upon its property 
from afterwards denying its legal 
right to occupy these streets for the 
sole purpose of giving a similar 
right to another company. Sinnoit 
v. Chicago & N. W. R. Co., 81 Wis. 
95, 50 N. W. 1097. But see Des 
Moines St. R. Co. v. Des Moines B. 
G. St. R. Co., 73 Iowa, 513, 35 N. W. 
602; City of Springfield v. Smith, 
138 Mo. 645, 40 S. W. 757, 37 L. R. 
A . 446. See, also, the cases of Paw- 
catuck Val. St. R. Co. v. Town 
Council of Westerly, 22 R. I. 307, 
47 Atl. 691. An ordinance requir- 
ing change of rails not a violation 
of a franchise. Easton, S. E. & W. 
E. P. R. Co. v. Easton, 133 Pa. 505, 
19 Atl. 486. 

TSO Southern R. Co. v. Atlanta R. 
& P. Co., Ill Ga. 679, 36 S. E. 873, 
51 L. R. A. 125. A railroad corpo- 
ration cannot complain because a 
street railway company is subse- 
quently permitted to construct and 
operate an electric line on streets 
upon which its track it laid. The 
steam road's right to occupy streets 
is a mere easement subject to the 
inconvenience that may result from 
the growth and development of the 
city and consequent increase of or 
change in modes of travel. It can- 
not recover damages for a subse- 
quent crossing by an electric line. 

Chicago City R. Co. v. People, 73 
111. 541; City of Bellville v. Citizens' 
Horse R. Co., 152 111. 171, 38 N. E. 
584, 26 L. R. A. 681; City R. Co. v. 
Citizens' St. R. Co. (Ind.) 52 N. E. 
157. A street railway company and 
a city are bound by their construc- 
tion of an ordinance granting priv- 
ileges. Atchison St. R. Co. v. Nave, 



2020 



PUBLIC PROPERTY. 



852 



privilege or right will be considered later. 781 A grant of the use 
of streets must be definite and accepted within the time fixed or a 
reasonable one. 782 

852 Construction of grant of authority. 

The rules of interpretation or construction to be applied in a 
particular instance will depend upon the nature of the grant. If 
this is one exclusive in its character or in derogation of common 
right, the rule of strict construction will apply and no privileges 
not clearly appearing will be read into the instrument through an 



38 Kan. 744, 17 Pac. 587; Lake Ro- 
land El. R. Co. v. City of Baltimore, 
77 Md. 352, 26 Atl. 510, 20 L. R. A. 
126. 

City of St. Paul v. Chicago, M. & 
St. P. R. Co., 63 Minn. 330, 356, 34 
L. R. A. 184. "But such a license 
lawfully granted and subsequently 
acted on by the licensee is not re- 
vocable in the ordinary sense of the 
word, that is, it is not revocable 
at the mere arbitrary pleasure or 
whim of the city or municipality. 
The licensee in such a case has 
vested rights under the license sub- 
ject only to the permanent rights of 
the general public for the use to 
which it was dedicated." But see 
People v. Suburban R. Co., 178 111. 
594, 53 N. E. 349, 49 L. R. A. 650. 

fsi See 921 et seq., post. 

782 City R. Co. v. Citizens' St. R. 
Co., 166 U. S. 557; People v. Los 
Angeles Elec. R. Co., 91 Cal. 338, 27 
Pac. 673. Where a forfeiture is 
Claimed because of a failure to com- 
mence construction within the time 
required, the pleadings must state 
dates and facts sufficient to give a 
cause of action. Williamson v. Gor- 
don Heights R. Co. (Del.) 40 Atl. 
933; City R. Co. v. Citizens' St. R. 
Co. (Ind.) 52 N. E. 157; Louisville 
& N. R. Co. v. Bowling Green R 



Co., 110 Ky. 788, 63 S. W. 4. A fail- 
ure to declare a forfeiture based 
upon a nonuse of streets specified 
within the time named will result 
in the loss of the right after the 
streets have been occupied. 

United R. & E. Co. v. Hayes, 92 
Md. 490, 48 Atl. 364. Where an or- 
dinance required that a .street rail- 
road company should construct its 
tracks and begin running its cars 
within a prescribed time or forfeit 
its rights, to be excepted from the 
operation of the ordinance streets 
not graded or paved. A street mac- 
ademized is not paved within the 
meaning of the ordinance. State v. 
Helena Power & Light Co., 22 
Mont. 391, 44 L. R. A. 692; Inhabit- 
ants of Trenton v. Trenton Horse 
Ry. Co. (N. J. Eq.) 19 A. 263; Moore 
v. West Jersey Traction Co., 62 N. 
J. Law, 386, 792, 41 Atl. 946; People 
v. Broadway R. Co., 56 Hun, 45, 9 
N. Y. Supp. 6. The failure to build 
one line within the time limited 
wili not work a forfeiture in re- 
spect to other lines constructed in 
time. Junction Pass. R. Co. v. Wil- 
.liamsport Pass. R. Co., 154 Pa. 116, 
26 Atl. 295. See, as to conditional 
acceptance, McNeil v. Chicago City 
R. Co., 61 111. 150. 



852 



ITS CONTROL AND USE. 



2021 



application of the principle of implied powers. 783 Where the 
grant is not of the character above indicated, a more liberal rule 
of interpretation will be applied in the determination of ambiguous 



TSS Citizens' St. R. Co. v. Jones, 34 
Fed. 579; Hopkins v. Baltimore & 
P. R. Co., 17 D. C. (6 Mackey) 311. 
The authority granted a railroad 
corporation to lay its tracks in the 
city of Washington does not author- 
ize the use of the public streets for 
general yard purposes. Glass v. 
Memphis & C. R. Co., 94 Ala. 581, 
10 So. 215. The right of a railroad 
to occupy a street cannot be raised 
in a collateral proceeding. 

Southern & N. A. R. Co. v. High- 
land Ave. & B. R. Co., 119 Ala. 105, 
24 So. 114; Kavanagh v. Mobile & 
G. R. Co., 78 Ga. 271, 2 S. E. 636; 
Harvey v. Aurora & G. R. Co., 186 
111. 283, 57 N. E. 857; Indianapolis 
Cable St. R. Co. v. Citizens' St. R. 
Co., 127 Ind. 369, 8 L. R. A. 539; 
Thompson v. Citizens' St. R. Co., 
152 Ind. 461, 53 N. E. 462; Slatten 
v. Des Moines Valley R. Co., 29 
Iowa, 148; Heath v. Des Moines & 
St. R. Co., 61 Iowa, 11; Klosterman 
v. Chesapeake & O. R. Co., 22 Ky. 
L. R. 192, 56 S. W. 820; City of Bal- 
timore v. Chesapeake & P. Tel. Co., 
92 Md. 692, 48 Atl. 465. 

Metropolitan R. Co. v. Quincy R. 
Co., 94 Mass. (12 Allen) 262. One 
railroad cannot without authority 
from the public officials use the 
tracks of a similar corporation. 
Browne v. Turner, 174 Mass. 150, 54 
N. E. 510; City of St. Paul v. Chi- 
cago, M. & St. P. R. Co., 63 Minn. 
330, 34 L. R. A. 184; Village of Way- 
zata v. Great Northern R. Co., 67 
Minn. 385, 69 N. W. 1073. The law 
authorizing the railroad company to 
construct its line over a public way 
"if necessary" contemplates the 



practical and not an absolute neces- 
sity. City of Concord y. Concord 
Horse R. Co., 15 N. H. 30, 18 Atl. 87. 

City of Bridgeton v. Bridgeton & 
M. Traction Co., 62 N. J. Law, 592, 
43 Atl. 715, 45 L. R. A. 837. An in- 
corporated street railroad cannot at 
its discretion abandon any portion 
of its road and tracks which have 
been established by ordinance. 
Trenton St. R. Co. v. United N. J. 
R. & Canal Co., 60 N. J. Eq. 500, 46 
Atl. 763; West Jersey Traction Co. 
v. Camden. Horse R. Co., 53 N. J. 
Eq. 163, 35 Atl. 49; State v. Inhabit- 
ants of Trenton, 54 N. J. Law, 92, 
23 Atl. 281. Use of motive power. 

People v. Newton, 48 Hun, 477, 1 
N. Y. Supp. 197. A street railway 
company under the authority to 
construct and operate a horse rail- 
road has no right to construct a 
cable line. Mattlage v. New York 
El. R. Co., 14 Daly (N. Y.) 1. 

Dry-Dock, E. B. & B. R. Co. v. 
City of N. Y., 55 Barb. (N. Y.) 298. 
A provision in a railroad charter 
which prohibits the city authorities 
from doing any act to obstruct the 
operation of the road cannot be 
construed so as to prevent the city 
from constructing and repairing 
sewers in the streets occupied by 
the company's tracks. 

Wabash R. Co. v. City of Defi- 
ance, 52 Ohio St. 262, 40 N. E. 89; 
City of Philadelphia v. Continental 
Pass. R. Co., 11 Phila. (Pa.) 315. 
The rule applies to the part of the 
street in respect to which the au- 
thority to construct tracks is 
granted. City of Philadelphia v. 
Citizens' Pass. R. Co., 151 Pa. 128, 



PUBLIC PROPERTY. 



852 



clauses or words. 78 * It might be said, however, in this connection, 
that where it clearly appears from the language of the grant that 
certain powers and rights were given to be exercised, that- no rule 
of construction should be adopted which will defeat or impair 
this grant, 785 or so long as the effect of an act is not injurious to 



24 Atl. 1099. The occupation of 
street. Junction Pass. R. Co. v. 
Williamsport Pass. R. Co., 154 Pa. 
116, 26 Atl. 295. Acceptance ot 
grant. City of Burlington v. Bur- 
lington Traction Co., 70 Vt. 491. 

7 s 4 City of Owensboro v. Owens- 
boro & N. R. Co., 19 Ky. L. R. 449, 
40 S. W. 916. An unauthorized act 
of a railroad company may be made 
valid by subsequent ordinance. In 
re Brooklyn El. R. Co., 57 Hun, 590, 
11 N. Y. Supp. 161; Id., 125 N. Y. 
434, 26 N. E. 474. 

785 Ransom v. Citizens' R. Co., 104 
Mo. 375, 16 S. W. 416. When a 
street railway company has author- 
ity to build a line of single or 
double track, the construction of a 
single track does not preclude it 
from later changing to a double 
track when business demands it. 
McFarland v. Orange & N. Horse 
Car R. Co., 13 N. J. Eq. (2 Beasl.) 
17; Paterson R. Co. v. Grundy, 51 
N. J. Eq. 213, 26 Atl. 788. A char- 
ter grant of 1866 where the com- 
pany was given the right to operate 
cars by such motive power as it 
deemed expedient and proper held 
to authorize the use of electricity 
by the trolley system. 

West Jersey Traction Co. v. Cam- 
den Horse R. Co., 52 N. J. Eq. 452; 
Brooklyn Heights R. Co. v. City of 
Brooklyn, 46 X. Y. State Rep. 299, 
18 N. Y. Supp. 876; Bohmer v. Haf- 
fen, 35 App. Div. 381, 54 N. Y. Supp. 
1030. Rights in regard to exten- 
sions. People v. Brooklyn, F. & C. 
I. R. Co., 89 .N. Y. 75. A constitu- 



tional provision relative to the con- 
struction and operation of street 
railroads can only be prospective in 
its effect. Commonwealth v. Union 
Pass. R. Co., 163 Pa. 22, 29 Atl. 711; 
City of Houston v. Houston Belt & 
M. P. R. Co., 84 Tex. 581, 16 S. W. 
786. 

The rule of strict construction in 
reference to motive power has been 
adopted in the following cases: 
Henderson v. Central Pass. R. Co., 
21 Fed. 358; Omaha Horse R. Co. v. 
Cable Tramway Co., 30 Fed. 324; 
Citizens' St. R. Co. v. Jones, 34 Fed. 
579; Birmingham & P. Mines St. R. 
Co. v. Birmingham St. R. Co., 79 
Ala. 465; Denver & S. R. Co. v. Den- 
ver City R. Co., 2 Colo. 673; Farrell 
v. Winchester Ave. R. Co., 61 Conn. 
127, 23 Atl. 757; North Chicago City 
R. Co. v. Town of Lake View, 105 
111. 207; Harmon v. City of Chicago, 
110 111. 400; Indianapolis Cable St. 
R. Co. v. Citizens' St. R. Co., 127 
Ind. 369, 8 L. R. A. 539; Stanley v. 
City of Davenport, 54 Iowa, 463; 
State v. Inhabitants of Trenton, 54 
N. J. Law, 92, 23 Atl. 281; People v. 
Newton, 112 N. Y. 296, 19 N. E. 831; 
City of Houston v. Houston City St. 
R. Co., 83 Tex. 548, 19 S. W. 78C. 

The liberal rule of construction 
in respect to motive power has 
been followed in the following 
cases. Williams v. City Elec. St. R. 
Co., 41 Fed. 556. "The propelling 
power of such a road (street rail- 
road) may be animal, steam, elec- 
tricity, cable, fireless engines, or 
compressed air; all of which mo- 



852 



ITS CONTROL AND USE. 



2023 



the public interests that rule should be adopted which tends to 
facilitate the success of the corporate enterprise rather than one 
which tends to defeat it. 786 The usual rule also obtains that the 
question of lawful authority is one to be raised solely by the state 



tors have been, and are now, in use 
for the purpose of propelling street 
cars. Doubtless, other methods of 
propelling the cars of street rail- 
roads will be discovered and ap- 
plied. The legislature having em- 
powered the city to authorize the 
construction of street railroads, 
without qualification or restriction 
as to the motive power to be used 
on such roads, the city had the un- 
doubted right to authorize animal 
or mechanical power to be used as 
motors on such roads." Buckner v. 
Hart, 52 Fed. 835; Williams v. Citi- 
zens' R. Co., 130 Ind. 71, 15 L. R. A. 
64; North Baltimore Pass. R. Co. v. 
North Ave. R. Co., 75 Md. 233, 23 
Atl. 466; Green v. City & Suburban 
R. Co., 78 Md. 294, 28 Atl. 626; De- 
troit City R. Co. v. Mills, 85 Mich. 
634, 48 N. W. 1007; Paterson R. Co. 
v. Grundy, 51 N. J. Eq. 213, 26 AtL 
788; Hudson River Tel. Co. v. Wa- 
tervliet Co., 135 N. Y. 393, 32 N. E. 
148, 17 L. R. A. 674; Fox v. Cath- 
arine & B. Sts. R. Co., 12 Pa. Co. 
Ct. R. 180 ; Lockhart v. Craig St. R. 
Co., 139 Pa. 419, 21 Atl. 26; Taggart 
v. Newport St. R. Co., 16 R. I. 668, 
19 Atl. 326, 7 L. R. A. 205. 

786 City R. Co. v. Citizens' St. R. 
Co., 166 U. S. 557; Central R. & 
Elec. Co. v. New York, N. H. & H. 
R. Co., 72 Conn. 33, 43 Atl. 490; 
Huntting v. Hartford St. R. Co., 73 
Conn. 179, 46 Atl. 824. The express 
grant of the right to lease other 
highways implies the existence of 
the power in the latter to give such 
a lease. Koch v. North Ave. R. Co., 
75 Md. 222, 23 Atl. 463, 15 L. R. A. 



377; Hooper v. Baltimore City -Pass. 
R. Co., 85 Md. 909, 37 Atl. 359; De- 
troit City R. Co. v. Mills, 85 Mich. 
634, 48 N. W. 1007. Motive power. 
Detroit Citizens' St. R. Co. v. Board 
of Public Works of City of Detroit, 
126 Mich. 554, 85 N. W. 1072; State 
v. Lindell R. Co., 151 Mo. 162, 52 S. 
W. 248. Rule applies to extension 
of street car line. Farnum v.' Con- 
cord Horse R. Co., 66 N. H. 569, 29 
Atl. 541. Motive power. Allen v. 
City of Jersey City, 53 N. J. Law, 
522, 22 Atl. 257; Dodd v. Consoli- 
dated Traction Co., 57 N. J. Law, 
482, 31 Atl. 980. 

Randolph v. Chosen Freeholders 
of Union County, 63 N. J. Law, 155, 
41 Atl. 960. The fact that a street 
railway has no franchise cannot be 
raised by an abutting owner. 
North Jersey St. R. Co. v. South 
Orange Tp. 58 N. J. Eq. 83, 43 Atl. 
53. The rule applied to an at- 
tempted forfeiture of a franchise 
because of a failure to complete a 
line within a specified time. Pater- 
son R. Co. v. Grundy, 51 N. J. Eq. 
213, 26 Atl. 788. Motive power. 
McClean v. Westchester Elec. R. 
Co., 25 Misc. 383, 55 N. Y. Supp. 556. 
An extension cannot be constructed 
independent of existing tracks. 
Asheville St. R. Co. v. West Asne- 
ville & S. S. R. Co., 114 N. C. 725, ly 
S. E. 697. 

Watson v. Fairmont & S. R. Co., 
49 W. Va. 528, 39 S. E. 193. Tho 
fact that a railroad company may 
be exceeding its corporate powers 
in the exercise of a granted author- 
ity to use the streets of a city is no 



2024 



PUBLIC PROPERTY. 



852 



or the municipal authority in a proceeding brought for that pur- 
pose. The doctrine of collateral attack applies as well. 787 Both 
steam and street railways are enterprises of the greatest advantage 
and benefit to a community and without them it could not exist. 
A community is almost entirely dependent for its commercial 
growth upon the means of transportation afforded it. This, as 
well as other considerations, induce the courts to adopt the rule of 
liberal construction in many instances given above. The pros- 
perity of a community is dependent largely upon the cheapness 
and facility with which its products and manufactures can be 
handled and the occupation of highways and streets by steam 
roads for their tracks, switches and terminal facilities, is almost 
the sole means of accomplishing this result. 

Authority for use of streets. The rule of strict construction 
will be applied to grants of authority for the use of certain streets, 



ground for equitable relief by an 
adjoining property owner. But see 
the case of Mory v. Oley Val. R. Co., 
199 Pa. 152, 48 Atl. 971, holding to 
the contrary under special statu- 
tory provisions. Lonergan v. La 
Layette St. R. Co. (Ind.) 3 Am. 
Electrical Cas. 273. 

TST Glass v. Memphis & C. R. Co., 
94 Ala. 581, 10 So. 215; Chicago 
Gen. R. Co. v. Chicago City R. Co., 
186 111. 219, 57 N. E. 822, 50 L. R. 
A. 734, affirming 87 111. App. 17. 
Change of motive power and use of 
additional cars on trains. Thomas 
v. St. Louis, B. & S. R. Co., 164 111. 
634, 46 N. E. 8; General Elec. R. Co. 
v. Chicago & W. I. R. Co., 184 111. 
588, 56 N. E. 963; Quinn v. Shields, 
62 Iowa, 129, 17 N. W. 437; State v. 
Fagan, 22 La. Ann. 545; New Or- 
leans, C. & L. R. Co. v. City of New 
Orleans, 44 La. Ann. 748, 11 So. 77; 
Nichols v. Ann Arbor & Y. St. R. 
Co., 87 Mich. 361, 49 N. W. 538, 16 
L. R. A. 371; People v. Ft. Wayne 
& E. R. Co., 92 Mich. 522, 52 N. W. 
1010, 16 L. R. A. 752; Kitchell v. 
Manchester Road & Elec. R. Co., 79 



Mo. App. 340; North v. State, 107 
Ind. 356; Minnick v. Lancaster, M. 
& N. H. R. Co., 24 Pa. Co. Ct. R. 
312; Junction Pass. R. Co. v. Wil- 
liamsport Pass. R. Co., 154 Pa. 116. 
Spokane St. R. Co. v. City of Spo- 
kane Falls, 6 Wash. 521, 33 Pac. 
1072. The local authorities may 
compel a street railroad company 
to operate it by the authorized mo- 
tive power. Sinnott v. Chicago & N. 
W. R. Co., 81 Wis. 95, 50 N. W. 
1097; Linden Land Co. v. Milwau- 
kee Elec. R. & Light Co., 107 Wis. 
493, 83 N. W. 851. But see New 
York Cable Co. v. City of New 
York, 104 N. Y. 1, where it is held 
that a company to exercise the 
power of eminent domain must be 
a corporation de jure. Where the 
consent of abutting property own- 
ers is necessary, one of these can 
raise the question of authority. 
See'Merriman v. Utica Belt Line St. 
R. Co., 18 Misc. 269, 41 N. Y. Supp. 
1049; O'Brien v. Buffalo Traction 
Co., 31 App. Div. 632, 52 N. Y. Supp. 
322 



852 



ITS CONTROL AND USB. 



2025 



and the grantee will be limited strictly to the occupation of those 
clearly specified and at place designated, 738 and to the construc- 
tion of additions, cross-overs, switches or extensions at the places 
or in the manner designated in the grant of authority from what- 
ever source derived. 789 



788 Spokane St. R. Co. v. City of 
Spokane Falls, 46 Fed. 322; Baker 
v. Selma St. & S. R. Co., 130 Ala. 
474, 30 So. 464. The grant to con- 
struct may be general in its terms 
with respect to the streets of the 
city. Finch v. Riverside & A. R. 
Co., 87 Cal. 597, 25 Pac. 765; Bor- 
ough of Stamford v. Stamford 
Horse R. Co., 56 Conn. 381, 15 Atl. 
749, 1 L. R. A. 375; Wilmington 
City R. Co. v. Wilmington & B. S. 
R. Co. (Del.) 46 Atl. 12; Harvey v. 
Aurora & G. R. Co., 186 111. 283, 57 
N. E. 857; Board of Com'rs of St. 
Joseph County v. South Bend & M. 
R. Co., 118 Ind. 68, 20 N. B. 499; 
Heath v. Des Moines & St. L. R. 
Co., 61 Iowa, 11; Kennedy v. De- 
troit R. Co., 108 Mich. 390, 66 N. W. 
495; McFarland v. Orange & N. 
Horse Car R. Co., 13 N. J. Eq. (2 
Beasl.) 17; Inhabitants of Trenton 
v. Trenton Horse Power R. Co. (N. 
J. Eq.) 19 Atl. 263; In re Metro- 
politan Transit Co., 48 Hun, 620, 1 
N. Y. Supp. 114; In re South Beach 
R. Co., 53 Hun, 131, 6 N. Y. Supp. 
172; Mattlage v. New York El. R. 
Co., 14 Daly (N. Y.) 1; McCruden v. 
Rochester R. Co., 5 Misc. 59, 25 N. 
Y. Supp. 114; Curvin v. Rochester 
R. Co., 78 Hun, 555, 29 N. Y. Supp. 
521; Negus v. City of Brooklyn, 62 
How. Pr. (N. Y.) 291; Auchincloss 
v. Metropolitan El. R. Co., 69 App. 
Div. 63, 74 N. Y. Supp. 534. 

Hough v. Smith, 37 Misc. 363, 75 
N. Y. Supp. 451. A consent by vil- 
lage trustees owners of stock in a 
: street railway corporation to which 



they granted a right to use the 
streets of the village is void. In re 
Metropolitan Transit Co., Ill N. Y. 
588, 19 N. E. 645; Minnich v. Lan- 
caster, M. & N. H. R. Co., 24 Pa. 
Co. Ct. R. 312. The question is one 
which can alone be raised by the 
public authorities. Commonwealth 
v. Union Pass. R. Co., 163 Pa. 22, 
29 Atl. 711; Pawcatuk Val. St. R. 
Co. v. Town Council of Westerly, 22 
R. I. 307, 47 Atl. 691; Fort Worth 
St. R. Co. v. Rosedale St. R. Co., 68 
Tex. 169, 4 S. W. 534. 

Norfolk R. & Light Co. v. Consoli- 
dated Turnpike Co., 100 Va. 243, 40 
S. E. 897. Under Va. Acts 1893-94, 
p. 127, as amended by acts 1895-96, 
p. 846, the board of road trustees of 
Norfolk county cannot confer upon 
a street railway company the right 
to operate upon highways a street 
railway. State v. Madison St. K. 
Co., 72 Wis. 612, 40 N. W. 487, 1 L. 
R. A. 771. But see West Jersey 
Traction Co. v. Camden Horse R. 
Co., 52 N. J. Eq. 452, 29 Atl. 333; 
Commonwealth v. Wilkes-Barre & 
K. St. R. Co., 127 Pa. 278, 17 Atl. 
996; Commonwealth v. Union Pass. 
R. Co., 163 Pa. 22, 29 Atl. 711. 

7S9 Baltimore v. Baltimore, T. & 
G. Co., 166 U. S. 673. Construing 
the reasonableness of an ordinance 
restricting the use of a particular 
street to one track where the gen- 
eral grant gave the company the 
right to construct double tracks 
through the streets mentioned. 

Walker v. City of Denver (C. C. 
A). 76 Fed. 670. A railroad com- 



2026 



PUBLIC PROPERTY. 



853 



853. Right to impose conditions for use of highways. 

A state legislature or a subordinate public corporation to whom 
the authority has been delegated can, in the grant of the right to 
either steam or street railroads to use the public highways, im- 
pose those conditions which may be considered advisable in re- 
spect to the exercise of the granted authority. 780 The conditions 



pany authorized by its charter to 
build "three foot standard narrow 
gauge railway" cannot enlarge its 
tracks to standard gauge without 
the consent of the city authorities 
where its tracks are laid. City ol 
Hartford v. Hartford St. R. Co., 73 
Hun, 327, 47 Atl. 330; City of Con- 
cord v. Concord Horse R. Co., 65 N. 
H. 30, 18 Atl. 87. Turnout. Brook- 
lyn Cent. R. Co. v. Brooklyn City 
Ry. Co., 32 Barb. (N. Y.) 358. Mc- 
Clean v. Westchester Elec. R. Co., 
25 Misc. 383, 55 N. Y. Supp. 556. 
Extensions should be connected 
with the original line. Eldert v. 
Long Island Elec. R. Co., 165 N. Y. 
651, 59 N. E. 1122; Harner v. Co- 
lumbia St. Car R. Co., 29 Wkly. Law 
Bui. 387. 

Sims v. Brooklyn St. R. Co., 37 
Ohio 556. A municipal ordinance 
granting authority to a street rail- 
way company to extend its tracks 
is not an act conferring corporate 
powers within the prohibition of 
Ohio Const, art. 13, 1. City of 
Philadelphia v. Citizens' Pass. R. 
Co., 10 Pa. Co. Ct. R. 16; Willis v. 
Erie City Pass. R. Co., 188 Pa. 56, 
41 Atl. 307; Borough of Shamokin v. 
Shamokin & M. C. E. R. Co., 196 Pa. 
166, 46 Atl. 382. 

<>Macon Consol. St. R. Co. v. 
City of Macon, 112 Ga. 782, 38 S. E. 
60. A municipal corporation caii- 
not make a contract which abro- 
gates or restricts the lawful exer- 
cise of its legislative or discretion- 



ary power with reference to the lo- 
cation of the tracks of a street car 
company. Jjes Moines St. R. Co. v. 
Des Moines B. G. R. Co., 74 Iowa, 
585, 38 N. W. 496. A city cannot 
require the use of a different gauge 
by a railroad company in making 
extensions. Getchell & M. Lumber 
Mfg. Co. v. Des Moines Union R. 
Co., 115 Iowa, 734, 87 N. W. 670; 
Old Colony R.' Co. v. Rockland & 
A. St. R. Co., 161 Mass. 416, 37 N. E. 
370. 

City of Detroit v. Ft. Wayne & B. 
I. R. Co., 95 Mich. 456, 54 N. W. 
958, 20 L. R. A. 79. A reserved 
power in a street railroad franchise 
on the part of a city to make such 
further regulations as may be nec- 
essary to protect the interests in- 
cludes the right to require a street 
car company to keep for the accom- 
modation of the public, tickets for 
sale on its cars. 

Rapid R. Co. v. City of Mt. Clem- 
ens, 118 Mich. 133, 76 N. W. 318. 
A street railway constructing a Y 
upon the condition that if ordered 
to do so by the city, it must remove 
it on sixty days' notice, is bound by 
that condition. Hutchinson v. Bor- 
ough of Belmar (N. J. Err. & App.) 
45 Atl. 1092, affirming 61 N. J. Law, 
443, 39 Atl. 643. The requirement 
that a railroad company shall pay 
the expense of the passage of the 
ordinance and a reasonable counsel 
fee is not illegal or improper. 

Abraham v. Meyers, 29 Abb. N. 



853 



ITS CONTROL AND USE. 



2027 



may roughly be classed as those which have for their object the 
payment of a tax or license fee for the privilege granted, those 
which have as their basis an exercise of the police power of the 
state or those which have for their purpose the maintenance of 



C. 384, 23 N. Y. Supp. 225, 228. It 
is a reasonable condition to require 
purchasers to deposit one-half of 
the amount necessary to complete a 
proposed road. Brooklyn El. R. Co. 
v. City of Brooklyn, 2 App. Div. 98, 
37 N. Y. Supp. 560. The expense 
of protecting an elevated road from 
settling because of the construction 
of a sewer by the city must be met 
by the railroad company. Staten 
Island Midland R. Co. v. Staten Is- 
land Elec. R. Co., 34 App. Div. 181, 
54 N. Y. Supp. 598. Condition ap- 
plied to changed use of certain 
tracks. 

People v. Barnard, 48 Hun, (N. 
Y.) 57. A condition that a com- 
pany shall keep accurate books of 
account open at all times to the in- 
spection of the city authorities is 
improper. In re Atlantic El. R. Co., 
136 N. Y. 292, 32 N. E. 771; City of 
Philadelphia v. Lombard & S. Sts. 
Pass. Co., 3 Grant Gas. (Pa.) 403. 

City of Reading v. United Trac- 
tion Co., 202 Pa. 571, 52 Atl. 106. 
A railroad company may be re- 
quired at its own expense to lower 
its tracks to conform to a change in 
the grade of a street. City of Phil- 
adelphia v. Ridge Ave. Pass. R. Co., 
143 Pa. 444, 22 Atl. 695; Woon- 
'socket St. R. Co. v. City of Woou- 
socket, 22 R. I. 64, 46 Atl. 272. 
An ordinance regulating the use 
of streets may be unreasonable. 
Smith v. East End St. R. Co., 87 
Tenn. 626, 11 S. W. 709; Dern v. 
Salt Lake City R. Co., 19 Utah, 46, 
56 Pac. 566. Legislation relative to 
conditions can only be prospective. 



Spokane St. R. Co. v. City of Spo- 
kane, 5 Wash. 634, 32 Pac. 456. A 
condition applied in respect to the 
right of the city to control and use 
its streets. 

Wood v. City of Seattle, 23 Wash. 
1, 62 Pac. 135, 52 L. R. A. 369. A 
condition requiring compulsory ar- 
bitration in disputes between a 
street railway company and its em- 
ployees held good. Ashland St. R. 
Co. v. City of Ashland, 78 Wis. 271, 
47 N. W. 619. A street railway 
must change at its own expense the 
grade of its tracks to correspond 
with changes in the grade of a 
street used by them. Fitts v. 
Cream City R. Co., 59 Wis. 323; Pa- 
cific R. Co. v. Leavenworth City, 1 
Dill. 393, Fed. Gas. No. 10,649. 

See Nellis, St. Surface R. R. c. 4, 
pp. 206, 207. "A grant to a corpora- 
tion of the right to own property 
and transact business confers na 
immunity from any police control 
to which a citizen could be sub- 
jected; and a reasonable regulation 
of the enjoyment of the franchise 
is not a denial of the right nor an 
invasion of the franchise, or a de- 
privation of this property, or inter- 
ference with the business of the 
corporation. * * * Under this 
power, ordinances regulating the 
use of the streets by street rail- 
ways have become frequent, espe- 
cially so since the introduction of 
electricity as a motive power; with 
its capacity of a high rate of speed, 
as well as other dangerous and ob- 
structive capacities. Their opera- 
tion must be reasonably safe, rea- 



2028 



PUBLIC PROPERTY. 



853 



the highway as nearly as may be in its original condition and its 
use by the railroad in such a manner as to least interfere with 
the public travel. 

Tickets and transfers or fares. The authorities hold that trans- 
portation is a commodity and the property of the one by whom 
it is supplied. Regulations, therefore, cannot be adopted by a 
public corporation relative to fares which will, in effect, amount 
to a taking of property without compensation even under the os- 
the parties in respect to the subject of this paragraph may also 
tensible exercise of the police power. 791 The relative rights of 
be controlled by special franchise or contract provisions and it 
naturally follows that regulations which impair these contract 
obligations will not be considered valid. 792 In particular contro- 
versies the relative rights of the parties will be determined by the 
language of a particular grant, 703 and that rule universally ob- 



sonably consistent and in harmony 
with the legal customary use of the 
street by the general public; and 
ordinances to enforce this rule of 
law are reasonable in purpose and 
effect." See 115 et seq., ante. 
But see Fair Haven & W. R. Co. v. 
City of New Haven, 74 Conn. 102, 
49 Atl. 863. Conditions imposed 
should be relevant and material to 
the rights granted. 

79i Ex parte Lorenzon, 128 Cal. 
431, 61 Pac. 68, 50 L. R. A. 55. An 
ordinance relative to use of trans- 
fers within the time limit specified 
and prohibiting passengers from 
selling or giving them away held 
reasonable and not oppressive. 
Parker v. Elmira, C. & N. R. Co., 
165 N. Y. 274; Ellis v. Milwaukee 
City R. Co., 67 Wis. 135; Nellis, St. 
Surface R. R. p. 221. But see Peo- 
ple v. Suburban R. Co., 178 111. 594, 
53 N. E. 349, 49 L. R. A. 650, 
where it is held that the legislature 
may enact laws to prevent extor- 
tion and unjust discrimination by 
street railways in the transporta- 
tion of passengers. 



792 city of Detroit v. Ft. Wayne & 
B. I. R. Co., 95 Mich. 456, 54 N. W. 
958, 20 L. R. A. 79. An ordinance 
requiring tickets to be kept for sale 
on the cars of a street railway com- 
pany does not impair the granted 
rights and franchises of the com- 
pany within the meaning of How- 
ell's Ann. St. c. 94, 3527, which 
prohibits city authorities from mak- 
ing any regulations whereby rights 
or franchises granted shall be de- 
stroyed or unreasonably impaired. 

73 city of Indianapolis v. Navin, 
151 Ind. 144, 47 N. E. 526, 51 N. E. 
80, 41 L. R. A. 340. Validity of 
three-cent fare ordinance sustained. 
State v. Omaha & C. B. R. & Bridge 
Co., 113 Iowa, 30, 84 N. W. 983, 52 
L. R. A. 315. An ordinance giving 
residents of a city the special priv- 
ilege of obtaining transportation on 
a street railway at a less rate than 
other residents of the state violates 
Iowa Const, art. 1, 6, relative to 
laws of a general nature and uni- 
form operation. Forman v. New 
Orleans & C. R. Co., 40 La. Ann. 
446, 4 So. 246; City of Cambridge v. 



853 



ITS CONTROL AND USE. 



2029- 



tains that a municipal corporation in respect to rates charged has 
no extra territorial jurisdiction 79 * though it may prescribe rea- 
sonable rates within its limits. 795 

Police regulations. In regard to conditions based upon the 
police power, the doctrine is established beyond question and 
necessarily so that in case of their omission from the grant of 
authority, the state or its subordinate agencies will still have the 
power, and a continuing one, to adopt and enforce all necessary 
measures for the protection of life and property. 796 The rule is 
also established beyond doubt that municipal authorities of cities 
and large towns have the right to adopt such measures without 
any special legislative sanction by virtue of the general super- 
vision and control which they have over the police protection of 
their respective jurisdictions. 797 



Cambridge R. Co., 92 Mass. (10 Al- 
len) 50; Rice v. Detroit, Y*. & A. A. 
R. Co., 122 Mich. 677, 81 N. W. 927, 
48 L. R. A. 84; Sternberg v. State, 
36 Neb. 307, 54 N. W. 553, 19 L. R. 
A. 570. The city of Lincoln may fix 
the rates of fare to be charged by a 
street railway company. Ellis v. 
Milwaukee City R. Co., 67 Wis. 135, 
30 N. W. 218. 

794 city of South Pasadena v. Los 
Angeles Terminal R. Co., 109 Cal. 
315, 41 Pac. 1093. 

795 City of Indianapolis v. Navin, 
151 Ind. 144, 47 N. E. 526, 51 N. E. 
80, 41 L. R. A. 340; Forman v. New 
Orleans & C. R. Co., 40 La. Ann. 
446 ; Baltimore & Y. Turnpike Road 
v. Boone, 45 Md. 344; Rice v. De- 
troit, Y & A. A. R. Co., 122 Mich. 
677, 81 N. W. 927, 48 L. R. A. 84; 
City of Detroit v. Ft. Wayne & B. I. 
R. Co., 95 Mich. 457, 20 L. R. A. 79; 
Sternberg v. State, 36 Neb. 307, 54 
N. W. 553, 19 L. R. A. 570; Barnett 
v. Brooklyn Heights R. Co., 53 App. 
Div. 432, 65 N. Y. Supp. 1068. Sep- 
arate fare on branch road. People 
v. Barnard, 110 N. Y. 548; Ellis v. 
Milwaukee City R. Co., 67 Wis. 135, 



30 N. W. 218; Nellis, St. Surface R. 
R. c. 4, 3. 

7 6 City of Baltimore v. Baltimore 
Trust & Guarantee Co., 166 U. S. 
673; Metropolitan City R. Co. v. 
City of Chicago, 96 111. 620; Drady 
v. Des Moines & Ft. D. R. Co., 5T 
Iowa, 393; New Orleans, C. & L. R. 
Co. v. City of New Orleans, 44 La. 
Ann. 748; City of Kalamazoo v. 
Michigan 1 ..ction Co., 126 Mich. 
525, 85 N. W. 1067; Jackson & S. 
Traction Co. v. Commissioners of 
Railroads, 128 Mich. 164, 87 N. W. 
133. A street railroad company 
may be compelled to elevate its 
tracks at the crossing of a steam 
railroad. Consolidated Traction Co. 
v. City of Elizabeth, 58 N. J. Law, 
619, 34 Atl. 146, 32 L. R. A. 170; 
Trenton Horse R. Co. v. Inhabitants 
of Trenton, 53 N. J. Law, 132, 11 L. 
R. A. 410; Hewlett v. Brooklyn 
Heights R. Co., 63 App. Div. 423, 71 
N. Y. Supp. 531; Town of Mason v. 
Ohio River R. Co., 51 W. Va. 183, 41 
S. E. 418. See 115 et seq., ante. 

797 Whitson v. City of Franklin, 34 
Ind. 392. Speed ordinance. Allen 
v. City of Jersey City, 53 N. J. Law, 



2030 



PUBLIC PROPERTY. 



854 



854. Conditions based upon the police power. 

The police power of the state is ample to secure the purpose 
sought to be accomplished by its existence and exercise. It is an 
inherent sovereign and continuing power and cannot be granted 
or bargained away. 798 The failure in a grant of authority to refer 
to it cannot be regarded as the equivalent of a surrender of the 
power. Under it the state or subordinate public corporations may 
adopt all needful rules and regulations, that may be determined 
upon from time to time by changing circumstances and conditions, 
to protect property and life and the good morals of the people. 709 
Familiar illustrations of an exercise of this power in connection 
with the use of public highways by either steam or street railroads 
include the adoption of laws or regulations relative to limiting 
the speed of trains in the streets of cities and towns, 800 requiring 
the erection of safety gates or the maintenance of flagmen at high- 
ways crossings, 801 obstructing streets or blockading crossings, 802 



522, 22 Atl. 257; Inhabitants of 
Trenton v. Trenton Pass. R. Co. (N. 
J. Eq.) 27 Atl. 483. A municipal 
corporation must exercise a power 
conferred upon it in the manner es- 
specially prescribed by statute and 
if this is not done, in any appropri- 
ate way. Richmond, F. & P. R. Co. 
v. Richmond, 26 Grat. (Va.) 83. 

70s Stone v. Mississippi, 101 U. S. 
814; Town of Westbrook's Appeal, 
57 Conn. 95; Horn v. Atlantic & St. 
L. R. Co., 35 N. H. 169; Thorpe v. 
Rutland & B. R. Co., 27 Vt. 140. 
See, also, 115, ante, and notes 
cited in notes 51 and 52. 

799 city of San Jose v. San Jose & 
S. C. R. Co., 53 Cal. 475; Pittsburgh, 
Ft. W. & C. R. Co. v. City of Chi- 
cago, 159 111. 369, 42 N. E. 781; City 
of Clinton v. Clinton & L. Horse R. 
Co., 37 Iowa, 61; City of Detroit v. 
Ft. Wayne & E. R. Co., 90 Mich. 
646, 51 N. W. 688. 

soo Denver & S. F. R. Co. v. 
Domke, 11 Colo. 247, 17 Pac. 777; 
Evison v. Chicago, St. P., M. & O. 



R. Co., 45 Minn. 370, 11 L. R. A. 
434; Merz v. Missouri Pac. R. Co., 
88 Mo. 672, I S. W. 382; Ruschen- 
berg v. Southern Elec. Co., 1G1 Mo. 
70, 61 S. W. 626. The maximum 
speed fixed in a franchise is a part 
of the contract and a street railway 
is entitled to run its tracks at that 
speed although in excess of the rate 
fixed by general ordinances. Attor- 
ney General v. London & N. W. R. 
Co., 68 Law J. Q. B. 4 [1899] 1 Q. 
B. 72; Pennsylvania Co. v. James, 
81 Pa. 194. 

soi Hayes v. Michigan Cent. R. 
Co., Ill U. S. 228; St. Louis, A. & 
T. H. Co. v. City of Belleville, 122 
111. 376; City of Leavenworth v. 
Hurdle, 63 Kan. 886, 66 Pac. 238; 
Green v. Eastern R., 52 Minn. 79, 53 
N. W. 808; Long Island City v. Long 
Island R. Co., 79 N. Y. 561. Such 
an ordinance cannot apply to a rail- 
road whose road was constructed 
before the date of the charter under 
which the ordinance was passed. 

so2Gude v. State, 76 Ala. 100; 



854 



ITS CONTROL AND USE. 



2031 



lighting, 803 or fencing its tracks; 804 and in respect to street rail- 
roads especially the manner of use of tracks and propelling 
power, 805 construction or condition of tracks, 800 operation or con- 



City of Birmingham v. Alabama G. 
S. R. Co., 98 Ala. 134; St. Louis, A. 
& T. H. R. Co. v. City of Belleville, 
122 111. 376, 12 N. E. 680; Illinois 
Cent. R. Co. v. City of Galena, 40 
111. 344; Illinois Cent. R. Co. v. Peo- 
ple, 49 111. App. 538; State v. Ma- 
lone, 8 Ind. App. 8, 35 N. E. 198; 
Cleveland, G., C. & I. R. Co. v. Wyn- 
ant, 114 Ind. 525; State v. Chicago, 
M. & St. P. R. Co., 77 Iowa, 442, 4 
L. R. A. 298; Commonwealth v. City 
of Frankfort, 92 Ky. 149, 17 S. W. 
287; Peterson v. Chicago & W. M. 
R. Co., 64 Mich. 621, 31 N. W. 548; 
City of Duluth v. Mallett, 43 Minn. 
204, 45 N. W. 154; Burger v. Mis- 
souri Pac. R. Co., 112 Mo. 238, 20 S. 
W. 439; Illinois Cent. R. Co. v. 
State, 71 Miss. 253, 14 So. 459. Un- 
der Miss. Code, 3551, the term 
"highway" relates only to roads in 
the country and "street" to public 
highways in a town, village, or city. 
Van Vorst v. Jersey City, 27 N. J. 
Law (3 Dutch.) 493; Murray v. 
South Carolina R. Co., 10 Rich. Law 
(S. C.) 227; State v. Railroad Co., 
91 Tenn. 445; State v. Vermont 
Cent. R. Co., 27 Vt. 103; Brownell v. 
Troy & B. R. Co., 55 Vt. 218; State 
v. Ohio River R. Co., 39 W. Va. 242, 
18 S. E. 582. 

BOS Newark Pass. R. Co. v. Block, 
55 N. J. Law, 605, 27 Atl. 1067, 22 
L. R. A. 374; Village of St. Bernard 
v. C., C., C. & St. L. R. Co., 4 Ohio 
Low. D. 371. 

so* Hannah v. Metropolitan St. R. 
Co., 81 Mo. App. 78. A railroad op- 
erated by electricity and carrying 
passengers only may be required to 
fence its track. 



sos Sioux City St. R. Co. v. Sioux 
City, 138 U. S. 98 ; Buckner v. Hart, 
52 Fed. 835; Van Hook v. City of 
Selma, 70 Ala. 361; Farrell v. Win- 
chester Ave. R. Co., 61 Conn. 127, 23 
Atl. 757; Chicago General R. Co. v. 
Chicago City R. Co., 186 111. 219, 57 
N. E. 822, 50 L. R. A. 734, affirming 
87 111. App. 17. The authority of a 
street railway to change its motive 
power cannot be raised by collat- 
eral attack; it is a question for the 
public corporation with whom the 
original contract was made alone to 
consider. 

Toledo, W. & W. R. Co. v. City of 
Jacksonville, 67 111. 37; Chicago 
General St. R. Co. v. Chicago City 
R. Co., 87 111. App. 17, affirmed 186 
111. 219, 57 N. E. 822, 50 L. R. A. 734. 
But in the absence of conditions a 
street railroad may change its mo- 
tive power and operate more cars 
at a time and with increased speed. 
North Chicago City R. Co. 4 V. Town 
of Lake View, 105 111. 183; Louis- 
ville Bagging Mfg. Co. v. Central 
Pass. R. Co., 95 Ky. 50, 23 S. W. 
592. An electric street railway sys- 
tem operated by overhead wires is 
not so dangerous as to authorize its 
restraint by injunction. 

City of Detroit v. Ft. Wayne & E. 
R. Co., 90 Mich. 646; State v. King, 
104 La. 735, 29 So. 359; Consoli- 
dated Traction Co. v. City of Eliza- 
beth, 58 N. J. Law, 619, 32 L. K. A. 
170. Use of salt. New York & H. 
R. Co. v. City of New York, 1 Hilt. 
(N. Y.) 562; Buffalo R. Co. v. Buf- 
falo, 5 Hill (N. Y.) 209; Hudson 
River Tel. Co. v. Watervliet T. & R. 
Co., 56 Hun, 67, 9 N. Y. Supp. 177;' 



PUBLIC PROPERTY. 



854 



struction of cars, 807 removal of ice and snow, 808 the making of 



Id., 135 N. Y. 393, 32 N. E. 148, 17 
L. R. A. 674. Authority to use "the 
power of horses, animals or any 
mechanical power or the combina- 
tion of them" held to embrace elec- 
tricity as a motive power. Distin- 
guishing People v. Newton, 112 N. 
Y. 396, 19 N. E. 831, 3 L. R. A. 174. 

In re Brooklyn El. R. Co., 57 Hun, 
590, 11 N. Y. Supp. 161; Dry-Dock, 
E. B. & B. R. Co. v. City of New 
York, 47 Hun (N. Y.) 221; St. Mi- 
chaels Protestant Episcopal Church 
v. Forty-Second St., M. & St. N. 
Ave. R. Co., 26 Misc. 601, 57 N. Y. 
Supp. 881; Stranahan v. Sea View 
R. Co., 84 N. Y. 308; In re Third 
Ave. R. Co., 121 N. Y. 536, 9 L. R. A. 
124; Fox v. Catharine & B. St. R. 
Co., 12 Pa. Co. Ct. R. 180; Reeves v. 
Philadelphia Traction Co., 152 Pa. 
153, 25 Atl. 516; Taggart v. Newport 
St. R. Co., 16 R. I. 668, 19 Atl. 326, 
7 L. R. A. 205; State v. Janesville 
St. R. Co., 87 Wis. 72, 57 N. W. 970, 
22 L. R. A. 759. - 

see McCoy v. Philadelphia, W. & 
B. R. Co., 5 Houst. (Del.) 599; City 
& Suburban R. Co. v. City of Savan- 
nah, 77 Ga. 431. Sprinkling street. 
Indianpolis & St. L. R. Co. v. Peo- 
ple, 32 111. App. 286; Newcomb v. 
Norfolk W. St. R. Co., 179 Mass. 
449, 61 N. E. 42. A street railway 
company can be compelled to 
sprinkle a street upon which its 
track is laid where this is one of 
the conditions of the grant. 

City of Detroit v. Detroit City R. 
Co., 37 Mich. 558; Electric R. Co. v. 
Common Council of Grand Rapids, 
84 Mich. 257; Appeal of Chester 
Traction Co. (Pa.) 40 Wkly. Notes 
Cas. (Pa.) 183. Particular ordi- 
nance requiring sprinkling between 
tracks held void because unreason- 



able. Pittsburgh & B. Pass. R. Co. 
v. Borough of Birmingham, 51 Pa. 
41; Washington, A. & Mt. V. R. Co. 
v. City Council of Alexandria, 98 
Va. 344, 36 S. E. 385. An ordinance 
requiring the substitution of a 
grooved rail for tram girder rails 
held reasonable. But see Easton, 
S. E. & W. B v P. R. Co. v. City of 
Easton, 133 Pa'. 505, 19 Atl. 486. 

SOT Wallen v. North Chicago St. R. 
Co., 82 111. App. 103; South Coving- 
ton & C. St. R. Co. v. Berry, 93 Ky. 
43, 18 S. W. 1026. An ordinance re- 
quiring a street car company to 
keep a driver and conductor on 
each car held a proper exercise of 
the police power and not unreason- 
able or oppressive. State v. Hei- 
denhain, 42 La. Ann. 483. Smoking 
in street cars. Baltimore & O. R. 
Co. v. Mali, 66 Md. 53; City of St. 
Louis v. St. Louis R. Co., 89 Mo. 44, 
1 S. W. 305. A regulation relative 
to the number of passengers carried 
on each car held valid. Dunn v. 
Cass Ave. & F. G. R. Co., 21 Mo. 
App. 188. Conductor on street cars. 
State v. Whitaker, 160 Mo. 59, 60 S. 
W. 1068. Screen for protection of 
motormen. State v. Inhabitants of 
Trenton, 53 N. J. Law, 132, 20 Atl. 
1076, 11 L. R. A. 410. Two em- 
ployees on same car. Cape May, D. 
B. & S. P. R. Co. v. City of Cape 
May, 59 N. J. Law, 396, 36 Atl. 696, 
36 L. R. A. 653. Fenders. City of 
Brooklyn v. Nassau Electric. R. Co., 
38 App. Div. 365, 56 N. Y. Supp. 609; 
City of Yonkers v. Yonkers R. Co., 
51 App. Div. 271, 64 N. Y. Supp. 955. 
Vestibule ordinance held unreason- 
able. 

City of New York v. Dry-Dock, E. 
B. & B. R. Co., 133 N. Y. 104, 30 N. 
E. 563. An ordinance requiring a 



855 



ITS CONTROL AND USB. 



2033 



track repairs, 809 the use of overhead or underground wires, 810 and 
rate of speed. 811 

855. Conditions imposed as revenue measures. 

The state or a municipality when expressly authorized may, as 
a condition imposed for the grant of the privilege or franchise, 
occupy the public highways, require the payment of a license fee 
or a franchise tax based upon the volume of the gross or net busi- 
ness transacted by the grantee of the power, 812 the number of cars 



street railway to operate its cars as 
frequently as public convenience 
may require and not less than a cer- 
tain minimum between certain spe- 
cified hours is reasonable and that 
question is not controlled by a con- 
sideration of expense to the com- 
pany. 

State v. Nelson, 52 Ohio St. 88, 39 
N. E. 22, 26 L. R. A. 317. A provi- 
sion for screens for the protection 
of motormen during the winter 
months held constitutional. State 
v. Sloan, 48 S. C. 21, 6 Am. Elec- 
trical Gas. 57. Ordinance authoriz- 
ing conductor on cars held valid. 
But see Michigan Public Acts 1889, 
No. 222, p. 329, relative to making 
full stop before crossing the tracks 
of a steam road. 

sos McDonald v. Toledo Consol. 
St. R. Co., 74 Fed. 104; West Chi- 
cago St. R. Co. v. O'Connor, 85 111. 
App. 278; Short v. Baltimore City 
Pass. Ry. Co., 50 Md. 73; Union R. 
Co. v. City of Cambridge, 93 Mass. 
(11 Allen) 287; Ovington v. Lowell 
& S. R. Co., 163 Mass. 440, 40 N. E. 
767; Bowen v. Detroit City R. Co., 
64 Mich. 496. In case of an ex- 
traordinary stor i the railway com- 
pany should make extraordinary ef- 
fort to remove snow from the 
street. Wallace v. Detroit City R. 
Co., 58 Mich. 231; Smith v. Nashua 
St. R. Co., 69 N. H. 504, 44 Atl. 133; 
Abb. Corp. Vol. Ill 4 



Broadway & S. A. R. Co. v. City of 
New York, 49 Hun, 126, 1 N. Y. 
Supp. 646; Dixon v. Brooklyn City 
& N. R. Co., 100 N. Y. 170; Bishop 
v. Union R. Co., 14 R. I. 314. 

809 City of Westport v. Mulhol- 
land, 159 Mo. 86, 60 S. W. 77, 53 L. 
R. A. 442. 

sio State v. City of Newark, 54 N. 
J. Law, 102, 23 Atl. 284; City of 
Rochester v. Bell Tel. Co., 52 App. 
Div. (N. Y.) 6; American Rapid TeL 
Co. v. Hess, 125 N. Y. 641, 26 N. E. 
919, 13 L. R. A. 454; People v. 
Squire, 107 N. Y. 593, 14 N. E. 820; 
Id., 145 U. S. 175; State v. Janes- 
ville St. R. Co., 87 Wis. 72, 57 N. W. 
970, 22 L. R. A. 759. See, also, IV 
Harvard Law Rev. 245. 

811 Glenville v. St. Louis R. Co., 51 
Mo. App. 629. An ordinance rela- 
tive to rate of speed passed in 1860 
will not be construed in 1892 to ap- 
ply to cable cars. Ruschenberg v. 
Southern Elec. R. Co., 161 Mo. 70, 
61 S. W. 626; Cape May, D. B. & S. 
P. R. Co. v. City of Cape May, 59 N. 
J. Law, 393, 36 Atl. 679, 36 L. R. A. 
656; Lewis v. Cincinnati St. R. Co., 
10 Ohio S. & C. P. Dec. 53. 

812 Baltimore Union Pass. R. Co. 
v. City of Baltimore 71 Md. 405, 18 
Atl. 917. The prescribed percent- 
age need not be based upon the 
earnings from passenger travel be- 
yond the city limits. City of New 



2034 



PUBLIC PROPERTY. 



855 



operated 813 or some other prescribed and equitable method. 814 
Such franchises or privileges may be disposed of to the highest 
bidder and the amount bid in these instances will establish the 
sum which can be legally collected by the authorities for the exer- 



York v. Twenty-Third St. R. Co., 62 
Hun, 545, 17 N. Y. Supp. 32; People 
T. Barnard, 110 N. Y. 548, 18 N. E. 
354; City of New York v. Dry-Dock, 
E. B. & B. R. Co., 47 Hun (N. Y.) 
199; City of New York v. Manhat- 
tan R. Co., 143 N. Y. 1, 37 N. E. 494; 
Id., 56 N. Y. State Rep. 58, 25 N. Y. 
Supp. 860; Cincinnati St. R. Co. v. 
City of Cincinnati, 8 Ohio N. P. 80; 
City of Cincinnati v. Mt. Auburn Ca- 
ble R. Co., 28 Wkly. Law Bui. 
(Ohio) 276. Gross business origi- 
nating outside of city limits may be 
taxed by it. Borough of Carlisle v. 
Cumberland Valley Pass. R. Co., 22 
Pa. Co. Ct. R. 221; City of Philadel- 
phia v. Empire Pass. R. Co., 177 Pa. 
382, 35 Atl. 721. New York Ry. 
Law, 95, as amended by Laws 
1892, c. 676, 3 Heydecker's Gen. 
Laws (2d Ed.) p. 3314. 

sis New York v. Broadway & S. A. 
R. Co., 17 Hun (N. Y.) 242; City of 
New York v. Dry-Dock, E. B. & B. 
R. Co., 112 N. Y. 137, 19 N. E. 420; 
City of New York v. Third Ave. R. 
Co., 33 N. Y. 42; Id., 117 N. Y. 404, 
22 N. E. 755; Id., 48 Hun, 621, 1 N. 
Y. Supp. 397; City of New York v. 
Broadway & S. A. R. Co., 97 N. Y. 
273. New York Laws 1901, vol. 3, 
44-50. Annual license is author- 
ized. 

si* Union Pass. R. Co. v. City of 
Philadelphia, 101 U. S. 528. An act 
which provides that a street rail- 
way company shall pay such a li- 
cense "for each car run by said 
company as is now paid by other 
passenger railway companies" is 
not a contract which prevents sub- 



sequent legislation increasing li- 
cense fees. City of Aniston v. 
Southern R. Co., 112 Ala. 557, 20 So. 
915; Byrne v. Chicago General Co., 
63 111. App. 438; Chicago Gen. R. Co. 
v. City of Chicago, 176 111. 253, 52 
N. E. 880. Under Rev. St. p. 571, 
3, a city may require a street rail- 
way to pay an annual tax on each 
mile of its track as a condition to 
its right to construct and operate 
its line. 

Harvey v. Aurora & G. R. Co., 186 
111. 283, 57 N. E. 857; City R. Co. v. 
Citizens' St. R. Co. (Ind.) 52 N. E. 
157; City of Newport v. South Cov- 
ington & C. St. R. Co., 89 Ky. 29, 11 
S. W. 954; City of New Orleans v. 
New Orleans, C. & L. R. Co., 39 La. 
Ann. 587, 4 So. 512; Board of Liqui- 
dation of City Debt v. City of New 
Orleans, 32 La. Ann. 915; City of 
New Orleans v. New Orleans, C. & 
L. R. Co., 40 La. Ann. 587; City of 
Detroit v. Detroit City R. Co., 37 
Mich. 558; Cincinnati St. R. Co. v. 
City of Cincinnati, 8 Ohio N. P. 80; 
Pittsburgh & B. Pass. R. Co. v. Bor- 
ough of Birmingham, 51 Pa. 41; 
State v. Hilbert, 72 Wis. 184, 39 N. 
W. 326. But see Hoboken & W. 
Horse R. Co. v. City of Hoboken, 30 
N. J. Law, 225, where it is held that 
the power to exact a license from a 
street railway company must be 
found as a condition annexed to the 
grant of the franchise to the com- 
pany or in the grant of legislative 
power to the city by the legislature 
and in the case under consideration 
both grounds were found wanting. 



856 



ITS CONTROL AND USE. 



2035 



cise of the rights pertaining to the franchise or privilege. 815 Con- 
ditions of the character above indicated have been uniformly sus- 
tained, as the grant of a privilege or franchise is usually regarded 
us in derogation of common right and one, therefore, for which a 
payment can be legally demanded. 816 

856. Conditions having for their purpose the maintenance of 
the highway in its original condition. 

Another class of conditions frequently imposed is that which 
involves the exercise of an unquestionable right on the part of the 
state or municipality to require that the railroad authorized to 
occupy a highway shall first, in the construction of its road- 
bed, 817 and second, in the maintenance and operation of it, pre- 



sis People v. Craycroft, 111 Cal. 
544, 44 Pac. 463; State v. West Side 
St. R. Co., 146 Mo. 155, 47 S. W. 959. 
Mo. Act April 9, 1895, relative to 
the sale at public auction street car 
franchises held void because uncer- 
tain and indefinite. People v. Barn- 
ard, 110 N. Y. 548, 18 N. E. 354, re- 
versing 48 Hun, 57; People v. Pratt, 
138 N. Y. 655, 34 N. E. 513. Sale of 
invalid franchises. 

City of Houston v. Houston City 
St. R. Co., 83 Tex. 548; Henderson 
v. Ogden City R. Co., 7 Utah, 199; 
Gallagher v. Johnson, 30 Wkly. Law 
Bui. (Ohio) 139. A proposal cannot 
"be rejected on the ground that it is 
not made in good faith except for 
things done and said by the bidder 
in the presence of a city council. 
Ohio Rev. St. 2502; N. Y. Ry. Law 
1890, art. 4, c. 565. But see New 
Orleans City & L. R. Co. v. Wat- 
kins, 48 La. Ann. 1550, 21 So. 199. 
With reference to grant of fran- 
chise to steam railroad company for 
use of street. See, also, Goodrich 
v. Houghton, 134 N. Y. 115, 31 N. E. 
516, in regard to understanding be- 
tween competitive bidders. 

SIB Hook v. Los Angeles R. Co., 



129 Cal. 180, 61 Pac. 912; Covington 
St. R. Co. v. City of Covington, 72 
Ky. (9 Bush.) 127; City of Spring- 
field v. Smith, 138 Mo. 645, 40 S. W. 
757, 37 L. R. A. 446; City of New 
York v. Eighth Ave. R. Co., 118 N. 
Y. 389, 23 N. E. 550; City of New 
York v. Dry-Dock, E. B. & B. R. Co., 
47 Hun (N. Y.) 199; City of New 
York v. Manhattan R. Co., 143 N. Y. 
1, 37 N. E. 494. The manner of 
payment may be prescribed by stat- 
ute. City of Providence v. Union 
R. Co., 12 R. I. 473. 

si? Denver, U. & P. R. Co. v. Bar- 
soloux, 15 Colo. 290, 25 Pac. 165, 10 
L. R. A. 89. A railroad under orig- 
inal grant of authority may change 
the width of its tracks from a nar- 
row to a broad gauge and the com- 
pany will not be enjoined from do- 
ing this at the instance of abutting 
owners. Fulton County St. R. Co. 
v. McConnell, 87 Ga. 756, 13 S. E. 
828; Cline v. Crescent City R. Co., 
41 La. Ann. 1031, 6 So. 851; Offutt 
v. Montgomery County Com'rs, 94 
Md. 115, 50 Atl. 419. Grade of road. 
Dickinson v. New Haven & North- 
hampton Co., 155 Mass. 16, 34 N. E. 
334; City of Detroit v. Ft. Wayne & 



2036 



PUBLIC PROPERTY. 



85C 



serve the highway in as nearly its original condition as possi- 
ble 818 and exercise the rights granted in such a manner as to least 
interfere at all times with the use of the highway by the public 
generally for legitimate purposes. 819 

The duty usually rests upon the railroad company occupying a 
highway in case a change of grade is made to reconstruct its track 
at its own expense so as to conform to the changed grade. 820 The 
performance of this duty in some instances has been held to include 
not only the reconstruction of the track at the expense of the rail- 
road company but also the cost of raising that portion of the street 
occupied by tracks of the new grade as lawfully established. 821 



E. R. Co., 90 Mich. 646, 51 N. W. 
688. Matter of laying ties. Keitel 
v. St. Louis, C. & W. R. Co., 28 Mo. 
App. 657; Dubach v. Hannibal & St. 
J. R. Co., 89 Mo. 483, 1 S. W. 86; 
Willis v. Erie City Pass. R. Co., 188 
Pa. 56, 41 Atl. 307; Town of James- 
town v. Chicago B. & N. R. Co., 69 
Wis. 648, 34 N. W. 728; City of 
Oconto v. Chicago & N. W. R. Co., 
44 Wis. 231. 

sis St. Louis, A. & T. Ry. Co. v. 
State, 52 Ark. 51, 11 S. W. 1035; 
Commonwealth v. City of Frank- 
fort, 92 Ky. 149, 17 S. W. 287; Reed 
v. City of Camden, 53 N. J. Law, 
322; City of Albany v. Watervliet 
Turnpike & R. Co., 108 N. Y. 14, 15 
N. E. 370; Miller v. Lebanon & A. 
St. R. Co., 186 Pa. 190, 40 Atl. 413. 
The track of the street railway 
company may be built to a grade 
established by municipal authorities 
and differing from the rest of the 
grade of the street. Parsons v. 
State, 26 Tex. App. 192; Brownell v. 
Troy & B. R. Co., 55 Vt. 218; City of 
Oshkosh v. Milwaukee & L. W. R. 
Co., 74 Wis. 534, 43 N. W. 489. 

SID Town of Oxanna v. Allen, 90 
Ala. 468, 8 So. 79; Finch v. River- 
side & A. R. Co., 87 Cal. 597, 25 Pac. 
765; Chicago, B. & Q. R. Co. v. City 
of Quincy, 136 111. 489, 27 N. E. 232, 



reversing 32 111. App. 377; Platt v. 
Chicago, B. & Q. R. Co. (Iowa) 31 
N. W. 883; Nichols v. Ann Arbor & 
Y. St. R. Co., 87 Mich. 361, 49 N. W. 
538, 16 L. R. A. 371; City of Albany 
v. Watervliet Turnpike & R. Co., 45 
Hun (N. Y.) 442. A county may be 
required by ordinance to remove its 
tracks from the side of the road 
where they obstruct travel, to the 
center of the street. Schild v. Cen- 
tral Park, N. & E. R. R. Co., 133 N. Y. 
446; Little Miami R. Co. v. Greene 
County Com'rs, 31 Ohio St. 338; 
Galveston City R. Co. v. Nolan, 53 
Tex. 139; Town of Mason v. Ohio 
River R. Co., 51 W. Va. 183, 41 S. E. 
418. 

820 North Chicago City R. Co. v. 
Town of Lake View, 105 111. 184 ; 
Indianapolis & C. R. Co. v. State, 37 
Ind. 489; City of New Orleans v. 
New Orleans Traction Co., 48 La. 
Ann. 567, 19 So. 565; Water Com'rs 
of Jersey City v. City of Hudson, 13 
N. J. Eq. (2 Beasl.) 420; City of Al- 
bany v. Watervliet, 108 N. Y. 14; 
Ashland St. R. Co. v. City of Ash- 
land, 78 Wis. 271. 

821 City of Little Rock v. Citizens' 
St. R. Co., 56 Ark. 28, 19 S. W. 17; 
West Chicago St. R. Co. v. City of 
Chicago, 178 111. 339, 53 N. E. 112; 
Borough v. McKeesport v. McKees- 



857 



ITS CONTROL, AND USE. 



2037 



The principle further obtains that public authorities may disturb 
the tracks of a company using the highways for the purpose of 
making proper improvements, the construction of sewers, laying 
water mains or the like and that any charges or expense caused 
by these acts to the railroad company in the temporary displace- 
ment and replacement must be paid exclusively by the company. 822 

857. The duty to restore and repair. 

The duty to restore and repair exists independent of any 
imposed conditions although it may be included as a part of a 
grant. The highway must, upon the construction of a railroad sys- 
tem, be restored to its original condition as nearly as possible, 823 
and, in respect to that part occupied by the roadbed, kept in 
repair. 824 This latter duty, it has been held, is a continuing 



port Pass. R. Co., 158 Pa. 447, 27 
Atl. 1006. 

822 National Water-works Co. v. 
City of Kansas, 28 Fed. 921; Kirby 
v. Citizens' R. Co., 48 Md. 168; Mid- 
dlesex R. Co. v. Wakefield, 103 
Mass. 262; City of Detroit v. Ft. 
Wayne & E. R. Co., 90 Mich. 646; 
State v. Corrigan Consol. St. R. Co., 
85 Mo. 263; West Philadelphia R. 
Co. v. City of Philadelphia, 10 Phila. 
(Pa.) 70. But see Des Moines City 
R. Co. v. City of Des Moines, 90 
Iowa, 770, 58 N. W. 906, 26 L. R. A. 
767; McMahon v. Second Ave. R. 
Co., 75 N. Y. 231. See, also, Clapp 
v. City of Spokane, 53 Fed. 515, fol- 
lowing City of Tacoma v. State, 4 
Wash. 64, 29 Pac. 847; Warren v. 
City of Grand Haven, 30 Mich. 24. 
This case holds that a street is sub- 
ject to all the uses ordinarily im- 
posed upon it which the wants or 
convenience of the people may ren- 
der necessary or imperative and 
one of these uses is the construc- 
tion of sewers under them. 

823 Louisiana & N. R. Co. v. Whit- 
ley County Ct., 15 Ky. L. R. 734, 24 



S. W. 604; Town of Jamestown v. 
Chicago B. & N. R. Co.. 69 Wis. 648, 
34 N. W. 728, following Town of 
Sheboygan v. Sheboygan & F. R. Co., 
21 Wis. 675; City of Oshkosh v. Mil- 
waukee & L. W. R. Co., 74 Wis. 534, 
43 N. W. 489. See Elliott, R. R. 
1092. 

824 Palatka & I. R. R. Co. v. State, 
23 Fla. 546; Robbins v. Omnibus R. 
Co., 32 Cal. 472. Under Act April 
2d, 1866 (Stat. 1866, p. 850) horse 
railways are not required to keep in 
repair that part of the street run- 
ning between a double track. State 
v. Jacksonville St. R. Co., 29 Fla. 
590, 10 So. 590; Commonwealth v. 
Illinois Cent. R. Co., 104 Ky. 366, 47 
S. W. 258; Groves v. Louisville R. 
Co., 22 Ky. L. R. 599, 58 S. W. 508; 
State v. St. Charles St. R. Co., 44 
La. Ann. 562 ; Northern Cent. R. Co. 
v. City of Baltimore, 46 Md. 425; 
Mahoney v. Natick & C. St. R. Co., 
173 Mass. 587; Ft. Wayne & E. R. 
Co. v. City of Detroit, 34 Mich. 78; 
People v. Fort St. & E. R. Co., 41 
Mich. 413, 2 N. W. 188; City of Du- 
luth v. Duluth St. R. Co., 60 Minn. 



2038 



PUBLIC PROPERTY. 



857 



one 825 and varies with the condition of the street, and if an 
unpaved street is subsequently improved or kind of paving- 
changed, the duty to repair is co-extensive with its changed con- 
dition. 826 The relative rights of the parties are frequently 
dependent upon the terms of special contracts or franchises 
which may have been made or granted in respect to the duty to 
either restore and repair or to improve. Their duties may be 



178, 62 N. W. 267; Baumgartner v. 
City of Mankato, 60 Minn. 244, 62 
N. W. 127; City of St. Louis v. St. 
Louis R. Co., 50 Mo. 94. Relative 
to the expense of repairing a street 
between tracks. City of New York 
v. New York & H. R. Co., 64 Hun 
(N. Y.) 635; Doyle v. City of New 
York, 58 App. Div. 588, 69 N. Y. 
Supp. 120; Village of Mechanicville 
v. Stillwater & M. St. R. Co., 67 
App. Div. 628, 74 N. Y. Supp. 1149; 
McMahon v. Second Ave. R. Co., 75 
N. Y. 231; City of N. Y. v. Second 
Ave. R. Co., 102 N. Y. 572. 

Pittsburg & B. Pass. R. Co. v. 
City of Pittsburg, 80 Pa. 72. The 
duty to keep in perpetual good re- 
pair requires the removal of a de- 
posit of debris from an extraordi- 
nary grade. Ehrisman v. East Har- 
risburg City Pass. R. Co., 150 Pa. 
180, 17 L. R. A. 448; City of Phila- 
delphia v. Philadelphia City Pass. 
R. Co., 177 Pa. 379, 35 Atl. 720; Cit- 
izens' St. R. Co. v. Howard, 102 
Tenn. 475, 52 S. W. 864; Memphis, 
P. P. & B. R. Co. v. State, 87 Tenn. 
746; Laredo Elec. & R. Co. v. Ham- 
ilton, 23 Tex. Civ. App. 480, 56 S. W. 
998. 

825Buritt v. City of New Haven, 
42 Conn. 174; Chicago, B. & Q. R. 
Co. v. City of Quincy, 139 111. 355, 
28 N. E. 1069; Wellcome v. Inhabit- 
ants of Leeds, 51 Me. 313; Cooke v. 
Boston & L. R. Corp., 133 Mass. 
185; Little Miami R. Co. v. Greene 



County Com'rs, 31 Ohio St. 338; 
Memphis, P. P. & B. R. Co. v. State, 
87 Tenn. 746, 11 S. W. 946; Fitts v. 
Cream City R. Co., 59 Miss. 323. 

826 District of Columbia v. Wash- 
ington & G. R. Co., 12 D. C. (1 
Mackey) 361; Parmelee v. City of 
Chicago, 60 111. 267; W T est Chicago 
St. R. Co. v. City of Chicago, 178 
111. 339, 53 N. E. 112; Lincoln St. R. 
Co. v. City of Lincoln, 61 Neb. 109, 
84 N. W. 802; Fielders v. North Jer- 
sey St. R. Co.. 67 N. J. Law 76, 50 
Atl. 533; Doyle v. City of New York, 
58 App. Div. 588, 69 N. Y. Supp. 120. 
Under a covenant to keep the pave- 
ment within its tracks and within 
three feet on each side in repair 
with the best waters tone when a 
change is made in the street paving 
to waterstone, the obligation of the 
company is likewise changed to 
that stone. 

Village of Mechanicville v. Still- 
water & M. St. R. Co., 67 App. Div. 
628, 74 N. Y. Supp. 1149, affirming 
35 Misc. 513, 71 N. Y. Supp. 1102; 
City of Columbus v. Columbus St. 
R. Co., 45 Ohio St. 98, 12 N. E. 651 ; 
Borough of Norristown v. Norris- 
town Pass. R. Co., 148 Pa. 87, 2? 
Atl. 1060. But if the paving is in 
repair the street railway company 
cannot be compelled to change it 
to correspond with the change of 
paving in the rest of the streets. 
City of Reading v. Union Traction 
Co., 24 Pa. Co. Ct. R. 629; Id., 202 



858 



ITS CONTROL AND USE. 



2039 



correspondingly increased or diminished and not subject to the 
general rules which usually obtain. 827 The duty to restore and 
repair is one that may be enforced by mandamus. 828 

858. The duty to improve. 

The duty to repair and restore as indicated in the last section 
is clearly established by adjudicated cases. The duty to improve 
a highway depends, according to the authorities, upon the express 
imposition by statute or its express inclusion in the grant of the 
privilege or the franchise. 829 Unless it is so made an express con- 



Pa. 571, 52 Atl. 106; Borough of Mc- 
Keesport v. McKeesport Pass. R. 
Co., 158 Pa. 447, 27 Atl. 1006. 

827 State v. Jacksonville St. R. 
Co., 29 Fla. 590, 10 So. 590; West- 
ern Paving & Supply Co. v. Citi- 
zens' St. R. Co., 128 Ind. 525, 26 N. 
E. 188, 10 L. R. A. 770; State v. 
New Orleans, C. & L. R. Co., 42 La. 
Ann. 550, 7 So. 606; State v. St. 
Charles St. R. Co., 44 La. Ann. 562, 
10 So. 927; State v. Canal & C. St. 
R. Co., 44 La. Ann. 526, 10 So. 940; 
Ft. Wayne & E. St. R. Co. v. City 
of Detroit, 39 Mich. 543; Brick & 
.Terra Cotta Co. v. Hull, 49 Mo. App. 
433; City of Binghamton v. Bing- 
hamton & P. D. R. Co., 61 Hun, 479, 
16 N. Y. Supp. 225. The enactment 
of an ordinance requiring the pav- 
ing of that part of a street occupied 
by railroad tracks is not presump- 
tive evidence of the necessity for 
the improvement. City of New 
York v. New York & H. R. Co., 64 
Hun, 635, 19 N. Y. Supp. 67; People 
v. Coffey, 66 Hun, 160, 21 N. Y. 
Supp. 34; Sullivan v. Staten Island 
Elec. R. Co., 50 App. Div. 558, 64 N. 
Y. Supp. 91; Davidge v. Common 
Council of Bingbampton, 62 App. 
Div. 525, 71 N. Y. Supp. 282; Bor- 
ough of McKeesport v. McKeesport 
Pass. R. Co., 158 Pa. 447, 27 Atl. 



1006; Century Digest, vol. 44, cols. 
3229 et seq. 

828 state v. Jacksonville St. R. 
Co., 29 Fla. 590; People v. Chicago 
& A. R. Co., 67 111. 118; Cummins v. 
Evansville & T. H. R. Co., 115 Ind. 
417; State v. St. P., M. & M. R. Co., 
35 Minn. 131, 28 N. W. 3; Buchholz 
v. New York, L. E. & W. R. Co., 148 
N. Y. 64Q, 43 N. E. 76; People v. 
Dutchess & C. R. Co., 58 N. Y. 152; 
City of Oshkosh v. Milwaukee & L. 
W. R. Co., 74 Wis. 534, 43 N. W. 
489. 

829 District of Columbia v. Wash- 
ington & G. R. Co., 12 D. C. (1 
Mackey) 361; Id., 15 D. C. (4 
Mackey) 214; City of Atlanta v. 
Gate City St. R. Co., 80 Ga. 276, 4 S. 
E. 269 ; Atlanta Consol. St. R. Co. v. 
City of Atlanta, 111 Ga. 255, 36 S. 
E. 667; Chicago, R. I. & P. R. Co. v. 
City of Chicago (111.) 27 N. E. 926. 

A street railroad company is not 
liable to special assessments for 
paving the rest of the street where 
it is required to pave and keep in 
repair that part which it uses. 

Billings v. City of Chicago, 167 
111. 337, 47 N. E. 731. Where a 
franchise is granted with this con- 
dition when a street is subse- 
quently paved, it is not necessary 
to give special notice to the rail- 



2040 



PUBLIC PROPERTY. 



S5f 



dition for the occupation of a street, a railroad, whether steam or 
street, is not obliged to pave, for example, that portion of the 



road company to make it liable for 
the cost of paving. City of Cedar 
Rapids v. Cedar Rapids & M. C. R. 
Co., 108 Iowa, 406, 79 N. W. 125. 
Under an obligation to pave, a 
street railroad company cannot be 
compelled to refloor with oak plank 
any portion of the bridge over 
which its tracks pass. 

City of Council Bluffs v. Omaha 
& C. B. St. R. & Bridge Co., 114 
Iowa, 141, 86 N. W. 222. A provi- 
sion that a street railway company 
shall pay abutting property owners 
for the paving when tracks are laid 
on a street already paved does not 
apply to the city as an owner in re- 
spect to the paving at street inter- 
sections. City of Shreveport v. 
Shreveport Belt R. Co., 107 La. 785, 
32 So. 189; City of Boston' v. Union 
Freight R. Co., 181 Mass. 205, 63 N. 
E. 412; Ft. St. & E. R. Co. v. 
Schneider, 15 Mich. 74. A railway 
occupying city streets under an 
agreement for a certain portion is 
exempt from an assessment for the 
paving of a proportionate part of 
the remainder. 

Ft. Wayne & E. R. Co. v. City of 
Detroit, 34 Mich. 78; City of Detroit 
v. Detroit City R. Co., 37 Mich. 558; 
City of St. Louis v. Missouri R. Co., 
13 Mo. App. 524; Lincoln St. R. Co. 
v. City of Lincoln, 61 Neb. 109, 84 
N. W. 802; Lake Shore & M. S. R. 
Co. v. City of Dunkirk, 65 Hun, 494, 
20 N. Y. Supp. 596; City of New 
York v. Second Ave. R. Co., 31 Hun 
(N. Y.) 241; Weed v. Common 
Council of City of Binghamton, 26 
Misc. 208, 56 N. Y. Supp. 105; Id. 
62 App. Div. 525, 71 N. Y. Supp. 282. 
A city council has no power to ex- 



empt a street railway company 
from the application of state laws 
relative to paving certain portions 
of highways occupied by tracks. 

Conway v. City of Rochester, 157 
N. Y. 33, 51 N. E. 395; City of Phila- 
delphia v. Second & T. Sts. Pass. R. 
Co., 13 Pa. Co. Ct. R. 580. Cost of 
paving at street intersections con- 
sidered. City of Reading v. United 
Traction Co., 202 Pa. 571, 52 Atl. 
106; City of Philadelphia v. Heston- 
ville, M. & F. Pass. R. Co., 203 Pa. 
38, 52 Atl. 184. But a city cannot, 
without notice to the company 
where it is required by ordinance it- 
self to do the paving and then re- 
cover therefor from the company. 
Borough of West Chester v. West 
Chester St. R. Co., 203 Pa. 201, 52 
Atl. 252; City of Philadelphia v. 
Ridge Ave. Pass. R. Co., 143 Pa. 
444, 22 Atl. 695; City of Philadel- 
phia v. Spring Garden Farmers' 
Market Co., 161 Pa. 522, 29 Atl. 286. 

Berks County v. Reading City 
Pass. R. Co., 167 Pa. 102, 31 Atl. 
474, 663. The use of a bridge by a 
street railway company may be 
conditioned upon the company's 
paying the expense of increasing 
its strength. Gulf City St. R. & 
Real-Estate Co. v. City of Galves- 
ton, 69 Tex. 660, 7 S. W. 520. A 
city cannot recover for filling, grad- 
ing and paving a street, from a rail- 
road company under a covenant to 
keep its roadbed in good repair and 
to pay all expenses of filling, and 
paving or otherwise including the 
street between its tracks when the 
railroad is not built until after the 
improvements have been made. 



859 



ITS CONTROL AND USE. 



2041 



street occupied by its tracks if at the time they were laid, the 
street was not in that condition. 830 However, after the space 
between tracks of a railroad is paved by a municipalit3 r , the duty 
to keep in repair this pavement, rests upon the company. 831 

859. Highway crossings. 

It is inevitable that both steam and street railroads cross at 
times, with their lines of road, highways already legally estab- 
lished. A duty of the railroad company may arise in respect to 
the compensation which shall be paid by it. This is determined 
by principles and cases already referred to in the preceding 
sections. 832 In the case of a highway crossing, relatively a small 
portion of the highway is occupied but this will not change or 
vary the rules applicable to the questions in respect to the occupa- 
tion of a street by a railroad. 

A duty also arises on the part of the railroad company, and 
especially a steam commercial railroad, in respect to the construc- 
tion of its road thereafter. 833 The police power of the state can 



sac City of Chicago v. Sheldon, 76 
TJ. S. (9 Wall.) 50; Ft. Dodge Blec. 
Light & Power Co. v. City of Ft. 
Dodge, 115 Iowa, 568, 89 N. W. 7; 
State v. New Orleans, C. & L. R. 
Co., 42 La. Ann. 550, 7 So. 606. 
Construing special contract. State 
v. Corrigan Consol. St. R. Co., 85 
Mo. 263; Kansas City v. Corri- 
gan, 86 Mo. 67; Dean v. City of Pat- 
erson, 67 N. J. Law, 199, 50 Atl. 
620; City of Binghamton v. Bing- 
hamton & P. D. R. Co., 61 Hun, 479, 
16 N. Y. Supp. 225; Davidge v. Com- 
mon Council of Binghamton, 62 
App. Div. 525, 71 N. Y. Supp. 282; 
City of Philadelphia v. Evans, 139 
Pa. 483, 21 Atl. 200; Leake v. City 
of Philadelphia, 150 Pa. 643, 24 Atl. 
351; City of Philadelphia v. Spring 
Garden Farmers' Market Co., 161 
Pa. St. 522, 25 Atl. 1077; Gulf City 
St. R. & Real Estate Co. v. City of 
Galveston, 69 Tex. 660, 7 S. W. 520. 



But see Chicago B. & Q. R. Co. v. 
City of Quincy, 136 111. 563, 27 N. E. 
192. See, also, Sioux City St. R. 
Co. v. Sioux City, 78 Iowa, 742. 

ssi State v. Jacksonville St. R. 
Co., 29 Fla. 590, 10 So. 590; Gilmore 
v. City of TJtica, 121 N. Y. 561, 24 
N. E. 1009, reversing 55 Hun, 514, 9 
N. Y. Supp. 912. Abutting property 
owners cannot enforce a permissive 
duty in this respect. Leake v. City 
of Philadelphia, 150 Pa. 643, 24 Atl. 
351. A voluntary paving by a 
street railway company of the mid- 
dle of the street occupied by its 
tracks creates no liability for the 
subsequent repair at its own ex- 
pense. 

ssa See 743 et seq., ante. 

833 Farley v. Chicago, R. I. & P. 
R. Co., 42 Iowa, 234; Thayer v. 
Flint & P. M. R. Co., 93 Mich. 150; 
Lincoln v. St. Louis, I. M. & S. R. 
Co., 75 Mo. 27; Moberly v. Kansas 



PUBLIC PROPERTY. 



860 



be exercised equally in regard to a high-way crossing as to the oc- 
cupation of a larger portion of the highway by a railroad and the 
state or subordinate public corporation can pass all necessary laws 
for the protection of the public using a highway crossing. 834 The 
limitations upon an exercise of the police power have already been 
considered. 835 



860. Duty to restore and maintain. 

When a railroad is constructed across a public highway, it then 
becomes its duty not only to restore the highway as nearly as pos- 
sible to its original condition, but also to maintain the crossing in 
that condition which will result in the least inconvenience and the 
greatest safety to the public. 836 The existence of a steam commer- 



City, St. J. & C. B. R. Co., 98 Mo. 
183; Burlington & M. R. Co. v. 
Koonce, 34 Neb. 479, 51 N. W. 1033; 
Ferguson v. Virginia & T. R. Co., 13 
Nev. 184; Pittsburg, Ft. W. & C. R. 
Co. v. Dunn, 56 Pa. 280; Buchner v. 
Chicago, M. & N. W. R. Co., 60 Wis. 
264. 

834 Dickinson v. New Haven & 
Northampton Co., 155 Mass. 16, 34 
N. E. 334. 

ess See 115 et seq., ante. 

sse Palatka & I. R. R. Co. v. State, 
23 Fla. 546; County of Cook v. 
Great Western R. Co., 119 111. 218, 
10 N. E. 564; Chicago, R. I. & P. R. 
Co. v. Moffitt, 75 111. 524; Clawson 
v. Chicago & G. S. R. Co., 95 Ind. 
152; Louisville, E. & St. L. Consol. 
R. Co. v. Pritchard, 131 Ind. 564; 
Paducah & E. R. Co. v. Com., 80 
Ky. 147; Wellcome v. Inhabitants 
of Leeds, 51 Me. 313; Northern 
Cent. R. Co. v. City of Baltimore, 46 
Md. 425. 

Brainard v. Connecticut River R. 
Co., 61 Mass. (7 Cush.) 506. A bill 
in equity to enforce rights respect- 
Ing the manner of constructing a 
railroad where it crosses a public 
highway can only be maintained by 



public authorities, not by a private 
individual. 

Cooke v. Boston & L. R. Corp., 
133 Mass. 185; Maltby v. Chicago & 
W. M. R. Co., 52 Mich. 108; State v. 
St. Paul, M. & M. R. Co., 35 Minn. 
131; State v. Hannibal & St. J. R. 
Co., 86 Mo. 13; Kansas City v. 
Kansas City Belt R. Co., 102 Mo. 
633, 10 L. R. A. 851; Gale v. New 
York Cent. & H. R. R. Co., 76 N. Y. 
594; Wasmer v. Delaware, L. & W. 
R. Co., 80 N. Y. 212; Northern Cent. 
R. Co. v. Com., 90 Pa. 300; Pitts- 
burgh, V. & C. R. Co. v. Com., 101 
Pa. 192; City of Chester v. Balti- 
more O. & P. R. Co., 140 Pa. 275. 

Dyer County v. Paducah & M. R. 
Co., 87 Tenn. 712. "It is a well set- 
tled rule of the common law, rest- 
ing upon the most obvious consid- 
erations of fairness and justice, 
that where a new highway is made 
across another one already in use, 
the crossing must not only be made 
with as little injury as possible to 
the old way, but whatever struc- 
tures may be necessary to the con- 
venience and safety of the crossing 
must be erected and maintained by 
the person or corporation con- 



801 ITS CONTROL AND USE. 2043 

cial road on or across a public highway is a source of constant dan- 
ger and a menace to life and property which did not exist before 
the construction of the crossing. The authorities hold with reason 
clearty to the existence of the duty to restore and maintain the 
highway in as nearly as possible its original condition. 837 

In respect to the duty to construct crossings over highways 
which are not in existence at the time of the construction of the 
highway the decisions are in conflict, the greater number, how- 
ever, maintain the doctrine that under such circumstances the rail- 
road company is not bound to construct a crossing at its own 
expense. 838 

861. Restoration of highways. The duty to construct over- 
head or underground crossings. 

The existence of a railroad for well known reasons and already 
stated on or across a public highway is a constant menace to life 
and property because of the size and weight of trains and the 
speed at which they are operated and the resulting condition of 
lack of quick and effective control. 839 In many cases it might be 
said to be the universal rule, because of these and other reasons, 

structing and using the new way." Kansas City v. Kansas City Belt 

Galveston H. & S. A. R. Co. v. Bau- R. Co., 102 Mo. 633, 14 S. W. 808, 10 

dat, 21 Tex. Civ. App. 236, 51 S. W. L. R. A. 851; New York & L. B. R. 

541; Town of Roxbury v. Central Co. v. Capner, 49 N. J. Law, 555; 

Vt. R. Co., 60 Vt. 121, 14 Atl. 92. State v. Wilmington & W. R. Co., 

837 Nickerson v. New York, N. H. 74 N. C. 143 ; Dyer County v. Padu- 

& H. R. Co., 178 Mass. 195, 59 N. E. cah & M. R. Co., 87 Tenn. 712; Gulf, 

636. C. & S. F. R. Co. v. Rowland, 70 

ass Illinois Cent. R. Co. v. City of Tex. 298. But see to the contrary 

Bloomington, 76 111. 447; Rock the following cases: Chicago & N. 

Creek Tp. v. St. Joseph & G. I. R. W. R. Co. v. City of Chicago, 140 

Co., 43 Kan. 543; Chicago, K. & W. 111. 309; Boston & M. R. Co. v. York 

R. Co. v. Chautauqua County County Com'rs, 79 Me. 386; State v. 

Com'rs, 49 Kan. 763, 31 Pac. 736; Chicago, B. & I. R. Co., 29 Neb. 412 
Northern Cent. R. Co. v. City of 839 Evansville & T. H. R. Co. v. 

Baltimore, 46 Md. 425; Old Colony Crist, 116 Ind. 446, 2 L. R. A. 450; 

# F. R. R. Co. v. Inhabitants of Ply- People v. New York Cent. & H. R. 

mouth, 80 Mass. (14 Gray) 155; Peo- R. Co., 74 N. Y. 302; Wasmer v. 

pie v. Lake Shore & M. S. R. Co., 52 Delaware, L. & W. R. Co., 80 N. Y. 

Mich. 277, 17 N. W. 841; People v. 212; Com. v. Erie & N. E. R. Co., 27 

Detroit, G. H. & M. R. Co., 79 Mich. Pa. 339. See, also, cases cited geu- 

471, 44 N. W. 934, 7 L. R. A. 717; erally under this section. 



PUBLIC PROPERTY. J 863 

that railroads have been required to construct and maintain over- 
head or underground crossings. 840 The performance of this duty 
was strongly contested for many years by railroad corporations. 
Their occupation of a highway is not regarded as a legitimate use 
of the highway. The duty to construct a bridge or an under- 
ground crossing to be enforceable by the state or a municipal cor- 
poration need not be included, necessarily, in the grant of the 
authority to occupy or use a highway. 841 Under the police power, 
if no other, these facilities can be required and their cost of con- 
struction must be paid exclusively by the railroad corporation. 8 * 2 
The expense of an abolition of grade crossings may be apportioned 
between a railway and the municipality by special contracts which 
will be enforced according to the rules applying to the interpreta- 
tion of contracts. 843 And the liability to either of the parties to 
such a contract to the other for damages caused by its carrying 
out will be determined according to the same rules. 844 The rights 
and liabilities of a public corporation and a railroad whether street 
or steam as well as the abutting property owners is based upon the 
existence of a legal highway, 845 or, where these are altered or 
changed, these rights and liabilities are shifted to the new loca- 

840 English v. New Haven & anon & N. Turnpike Co. (Tenn. Ch. 

Northampton Co., 32 Conn. 240; App.) 61 S. W. 1096. 

Smith v. Town of New Haven, 59 8*1 People v. Union Pac. R. Co., 

Conn. 203; Illinois Cent. R. Co. v. 20 Colo. 186. 

City of Chicago, 141 111. 586, 30 N. 8*2 New York & N. E. R. Co. v. 

E. 1044, 17 L. R. A. 530; In re Se- Town of Bristol, 151 U. S. 556; 

lectmen of Hadley, 178 Mass. 319, Town of Suffield v. New Haven & 

59 N. E. 805; Harper v. City of De- Northampton Co., 53 Conn. 367; 

troit, 110 Mich. 427, 68 N. W. 265; Town of Fairfield's Appeal, 57 

State v. City of Camden, 52 N. J. Conn. 167; Doolittle v. Selectmen 

Law, 322, 21 Atl. 565; In re Road in of Brayford, 59 Conn. 402; New 

Sterrett Tp., 114 Pa. 627, 7 Atl. 765. York & N. E. R. Co.'s Appeal, 62 

A grade crossing may be dangerous Conn. 527; In re City of Northamp- 

but it is not illegal per se. Penn- ton, 158 Mass. 299. 

sylvania R. Co. v. Warren St. R. 843 in re Grade Crossing Com'rs 

Co., 188 Pa. 74, 41 Atl. 331; New of Buffalo, 66 App. Div. 439, 73 N. 

York Cent. & H. R. R. Co. v. War- Y. Supp. 10. 

ren St. R. Co., 188 Pa. 85; Chester 844 i n re Grade Crossing Com'rs 

Traction Co. v. Philadelphia, W. & of Buffalo, 66 App. Div. 439, 73 N. 

D. R. Co., 188 Pa. 105, 41 Atl. 449, Y. Supp. 10. 

44 L. R. A. 269; Barron v. Chicago, 8*0 Burnes v. Multnomah R. Co., 15 

St. P., M. & O. R. Co., 89 Wis. 79, 61 Fed. 177, 
X. W. 303. But see State v. Leb- 



862 



ITS CONTROL AND USE. 



2045- 



tion. 846 When the duty exists on the part of the railroad com- 
pany to construct an overhead crossing, its performance may be 
compelled by mandamus. 847 The duty is further regarded as a 
continuing one. 8 * 8 



862. Highway crossings, 
make. 



Right of the public corporation to 



A public corporation may, in the extension of a highway, find 
it necessary to cross the already established lines of a steam com- 
mercial road or a street railway. The rights of the parties then 
are directly reversed as compared with the discussion in the pre- 
ceding section. It is true that property devoted to one public use 
may be appropriated in part for another public use or that a joint 
use may be established, 849 though private property devoted to a 
public use cannot be appropriated as an entirety for similar pub- 



sie Buchholz v. New York, L. B. 
& W. R. Co., 71 App. Div. 452, 75 N. 
Y. Supp. 824. 

SIT State v. Savannah & O. Canal 
R. Co., 26 Ga. 665; Boggs v. Chi- 
cago, B. & I. R. Co., 54 Iowa, 435; 
City of Newton v. Chicago, R. I. & 
P. R. Co., 66 Iowa, 422; State v. 
Missouri Pac. R. Co., 33 Kan. 176; 
Cooke v. Boston & L. R. Corp., 133 
Mass. 185; Maltby v. Chicago & W. 
M. R. Co., 52 Mich. 108, 17 N. W. 
717; In re Trenton Water Power 
Co., 20 N. J. Law (Spencer) 659; 
New York & G. L. R. Co. v. State, 
50 N. J. Law, 303; Town Council of 
Johnston v. Providence & S. R. Co., 
10 R. I. 365. See, also, cases cited 
in following note. 

8 state v. St. Paul, M. & M. R. 
Co., 35 Minn. 131, 28 N. W. 3; State 
v. Minneapolis & St. L. R. Co., 39 
Minn. 219. 

s Chicago & A. R. Co. v. Joliet, 
L. & A. R. Co., 105 111. 388. "Un- 
less, therefore, every railroad cor- 
poration takes its right of way sub- 
ject to the right of the public to 



have other roads, both common 
highways and railways, constructed 
across its track whenever the pub- 
lic exigency might be thought to de- 
mand it, the grant of the privilege 
to construct a railroad across or 
through the state would be an ob- 
stacle in the way of its future pros- 
perity of no inconsiderable magni- 
tude." 

Chicago & N. W. R. Co. v. City of 
Chicago, 140 111. 309, 29 N. B. 1109; 
City of Ft. Wayne v. Lake Shore & 
M. S. R. Co., 132 Ind. 558, 32 N. E. 
215, 18 L. R. A. 367. Private corpo- 
rations acquire the right to con- 
struct roads subject to the domi- 
nant-right of the state to cross 
such road whenever the public ne- 
cessity demands that new roads or 
streets shall be opened and for this 
reason it is held that the general 
power to construct and open streets 
or other public highways carries 
with it the power to construct them 
across railroad tracks. Boston & 
Albany R. Co. v. Middlesex County 
Com'rs, 177 Mass. 511, 59 N. B. 115;. 



2046 



PUBLIC PROPERTY. 



862 



lie use by some other agency. 850 Before a public corporation can 
legally acquire the right to extend or establish a highway over 
an existing line of road, if the parties are unable to agree upon the 
terms upon which this can be done, the power of eminent domain 
must be invoked and, as many times stated, compensation must be 
made for the damages suffered by the one whose property is appro- 
priated. 851 In the case of a railroad line, whether steam or street, 
the elements of damage to be considered would include the value 
of the property actually taken, 852 the purpose for which it was 



Williams Val. R. Co. v. Lykens & 
W. Val. St. R. Co., 192 Pa. 552, 44 
Atl. 46. But see Riedinger v. Mar- 
quette & W. R. Co., 62 Mich. 29, 28 
N. W. 775, where it is held that 
streets cannot be used for purposes 
inconsistent with the dedication. 

sso Lake Erie & W. R. Co. v. 
Town of Boswell, 137 Ind. 33.6; Cin- 
cinnati, W. & M. R. Co. v. City of 
Anderson, 139 Ind. 490. "Under 
the general law permitting cities to 
establish streets, we have no doubt 
of the implied power to extend 
streets transversely across the right 
of way of a railroad when in doing 
so the uses for which such right of 
way is employed are not materially 
injured or destroyed, and where 
such uses and those for a street 
may co-exist without impairment of 
the first uses. But where such 
uses cannot so co-exist, or where the 
first use is materially impaired or 
destroyed, it is well settled in this 
state and elsewhere that the second 
public use will be denied." Mil- 
waukee & St. P. R. Co. v. City of 
Faribault, 23 Minn. 167; Lockwood 
v. Wabash R. Co., 122 Mo. 86, 26 S. 
W. 698, 24 L. R. A. 516; Hannibal & 
St. J. R. Co. v. Muder, 49 Mo. 165; 
State v. City of Jersey City, 152 N. 
J. Law, 65, 18 Atl. 586; New Jersey, 
etc., Co. v. Long Branch Com'rs, :J9 
N. J. Law 28; Prospect Park & C. I. 



R. Co. v. Williamson, 91 N. Y. 552; 
Lewis v. Germantown, N. & P. R. 
Co., 16 Phila. (Pa.) 608. 

851 Chicago, B. & I. R. Co. v. Wil- 
son, 17 111. 123; Low v. Galena & C. 
U. R. Co., 18 111. 324; Cincinnati, W. 
& M. R. Co. v. City of Anderson,, 
139 Ind. 490; Housatonic R. Co. v. 
Lee & H. R. Co., 118 Mass. 391; De- 
troit, M. & T. R. Co. v. City of De- 
troit, 49 Mich. 47; Park & Boule- 
vard Com'rs v. Chicago, D. & C. G. 
T. J. R. Co., 91 Mich. 291; St. Paul 
Union Depot R. Co. v. City of St. 
Paul, 30 Minn. 359; Hannibal & St. 
J. R. Co. v. Muder, 49 Mo. 165; In 
re Alexander Avenue, 63 Hun, 630, 
17 N. Y. Supp. 933; New York & H. 
R. Co. v. Kip, 46 N. Y. 546; In re 
North Third Avenue, 32 App. Div. 
394, 53 N. Y. Supp. 46. The exten- 
sion of a highway across a railroad 
track is discretionary with the pub- 
lic authorities. In re New York 
Cent. & H. R. R. Co., 77 N. Y. 248; 
Winona & St. P. R. Co. v. City of 
Watertown, 4 S. D. 323, 56 N. W. 
1077; State v. O'Connor, 78 Wis. 
282, 47 N. W. 433. See, also, au- 
thorities cited generally under this 
section. See authorities cited in 
787 et seq., ante. 

852 City of Bridgeport v. New 
York & N. H. R. Co., 36 Conn. 255; 
Chicago & N. W. R. Co. v. City of 
Chicago, 140 111. 309, 29 N. E. 1109; 



803, 864 ITS CONTROL AND USE. 2047 

used, and in some eases the detriment and inconvenience to an 
established business. Whether a highway shall be laid out at 
grade or otherwise is generally discretionary with the public 
authorities. 853 

863. Same subject. Duty to maintain and repair. 

Where a highway is extended or established across a line of 
existing railroad, there is no duty on the part of the railroad to 
maintain the crossing in a safe condition or to repair and restore 
it to its original condition. 854 The burden of this duty is thrown 
upon the public corporation extending or establishing the high- 
way ; neither can it be claimed that a duty exists in these cases on 
the part of the railroad to construct or maintain underground or 
overhead crossings, 855 although in some cases the courts have 
attempted to make an adjustment as between the parties of the 
cost of construction and maintenance for bridges used for such 
purposes. 

864. Temporary obstructions. 

In section 831, obstructions in highways were classed as perman- 
ent, temporary, and recurring in their character; the word " per- 
manent " involving the application of the customary and usual 
meaning of the word. And in preceding sections, 832 and those 
following, have been considered various acts of individuals and 
uses of a public highway which have been regarded by the courts 
as coming within that class of obstructions that are permanent and 
lasting in their character. There are still other uses of a public 
highway and acts of individuals which may constitute an obstruc- 
tion in a highway but only for a brief period of time and these 
because of that condition are commonly regarded as temporary 
only, the difference in the two classes, namely, permanent and 

Boston & M. R. Co. v. York County nepln County, 42 Minn. 247, 7 L. R. 

Com'rs, 79 Me. 386; Old Colony & A. 121. 

F. R. R. Co. v. Inhabitants of Plym- sss Connecticut & P. R. Co. v. St. 

outh, 80 Mass. (14 Gray) 155; Bos- Johnsbury, 59 Vt. 320, 10 Atl. 573. 

ton & A. R. Co. v. City of Cam- ss^Rock Creek Tp. v. St. Joseph 

bridge, 159 Mass. 283, 34 N. E. 382; & G. I. R. Co., 43 Kan. 543, 23 Pac. 

City of Grand Rapids v. Grand Rap- 585. 

ids & I. R. Co., 66 Mich. 42, 33 N. sss See 861, ante. 

W. 15 ; State v. District Ct. for Hen- 



2048 



PUBLIC PROPERTY. 



864 



temporary, being based upon the length of time of the use of a 
highway. 856 The fact that an obstruction may be temporary in its 
character does not limit a public corporation in the exercise of its 
power to preserve a highway in its proper condition and character 
as a public way. Public authorities within the exercise of their 
lawfully delegated powers can adopt and exercise all necessary 
regulations or rules in respect to the use of a highway or of 
public parks by a temporary obstruction, permitting or prohibiting 
designated uses by or acts of individuals through affirmative and 
permissive legislation. 857 

Permits given by public officials to use a highway or any portion 
of it for a purpose which, without such permit, would be regarded 
as a nuisance or an obstruction, are usually regarded as revocable 



sso Simon v. City of Atlanta, 67 
Ga. 618; Fisher v. Thirkell, 21 Mich. 
1; Graves v. Shattuck, 35 N. H. 
257; Com. v. Passmore, 1 Serg. & R. 
(Pa.) 219; Com. v. Hauck, 103 Pa. 
536; Clark v. Fry, 8 Ohio St. 358. 

857 Hibbard Spencer, Bartlett 
& Co. v. City of Chicago, 173 111. 91, 
50 N. E. 256, 40 L. R. A. 621; People 
v. Suburban R. Co., 178 111. 594, 53 
N. E. 349, 49 L. R. A. 650; Grove v. 
City of Ft. Wayne, 45 Ind. 429; City 
of Frankfort v. Coleman, 19 Ind. 
App. 368, 49 N. E. 474. Authority 
over a street includes the sidewalks 
as a part thereof. 

Townsend v. Epstein, 93 Md. 537, 
49 Atl. 629, 52 L. R. A. 409. Public 
authorities hold streets in trust for 
the benefit of the public and have 
no right to authorize their use for a 
private purpose. 

Gorham v. Withey, 52 Mich. 50. 
Under the Michigan decisions, an 
obstruction of a highway differs 
from an encroachment upon it. An 
impediment to travel constitutes an 
obstruction. An enclosure of a 
part of the highway is an encroach- 
ment. 

Northwestern Tel. Ex. Co. v. City 



of Minneapolis, 81 Minn. 140, 86 N. 
W. 69, 53 L. R. A. 175, affirming on 
rehearing 83 N. W. 527. The city 
of Minneapolis under its charter 
powers cannot arbitrarily remove 
telephone poles from its streets but 
can only regulate their placing and 
compel telephone companies to put 
their wires in conduits if the good 
government of the municipality re- 
quires it. St. John v. City of New 
York, 13 N. Y. Super. Ct. (6 Duer) 
315; Hudson v. Caryl, 44 N. Y. 553; 
Whalen v. Willis, 18 App. Div. 350, 
46 N. Y. Supp. 52; Flynn v. Taylor, 
127 N. Y. 596, 14 L. R. A. 556. 

Haines v. Barclay Tp., 181 Pa. 
521, 37 Atl. 560. The authority of 
public officials does not extend ta 
private property adjoining a high- 
way. Hale v. Town of Weston, 40 
W. Va. 313; Arthur v. City of 
Charleston, 51 W. Va. 132, 41 S. E. 
171. But see Bogue v. Bennett, 156 
Ind. 478, 60 N. E. 143. Burn's Rev. 
St. 1894, 3541, gives no authority 
for the prohibition of the use of the 
public street by a traction engine; 
its effect is limited to a regulation 
of vehicles in use. 



865 



ITS CONTROL AND USB. 



2049 



licenses not pertaining of the nature of a contract, 858 their author- 
ity, however, extending only to legally established highways or 
grounds. 859 Various uses of a highway which without such action 
would be regarded as nuisances and, therefore, illegal, may be 
made, if exercised in the designated manner, lawful. But the 
mere fact of affirmative legislation in these instances cannot re- 
move from or give to that use or act, which under existing con- 
ditions and in its essential characteristics is or is not a nuisance, 
another character. 860 



865. Concrete illustrations of temporary obstructions. 

The use of highways for public speaking 861 or public meet- 
ings, 862 for political, civil 863 or religious 864 parades or processions, 



88 city of Detroit v. Detroit City 
R. Co., 56 Fed. 867; Gregsten v. 
City of Chicago, 40 111. App. 607; 
City of Indianpolis v. Miller, 27 Ind. 
394; Readfleld Tel. & T. Co. v. Cyr, 
95 Me. 287, 49 Atl. 1047. The right 
of a telephone company to erect its 
posts and lines along a highway 
under St. 1885, c. 378, is a mere 
revocable license. Compton v. In- 
habitants of Town of Revere, 179 
Mass. 413, 60 N. E. 931; Gushee v. 
City of New York, 42 App. Div. 37, 
58 N. Y. Supp. 967, affirming 26 
Misc. 287, 56 N. Y. Supp. 1002; Rob- 
inson v. Lamb, 126 N. C. 492, 36 S. 
E. 29. 

SSD Dorrance v. Simons, 2 Root 
(Conn.) 208; Irwin v. Sprigg, 6 Gill. 
(Md.) 200; Smith v. Smith, 19 
Mass. (2 Pick.) 621. 

860 Yates v. City of Milwaukee, 
77 U. S. (10 Wall.) 497. "The act 
of the Wisconsin legislature, ap- 
proved March 31, 1854 (Laws 1854, 
p. 414) confers upon the city of Mil- 
waukee the authority to establish 
dock and wharf lines on the banks 
of the Milwaukee and Menominee 
Rivers, and restrains and prevents 
encroachments upon said rivers and 
Abb. Corp. Vol. Ill 5. 



obstructions thereto, and it is by 
this statute that the summary pro- 
ceedings for the removal of appel- 
lant's wharf are supposed to be au- 
thorized. But the mere declara- 
tion by the city council of Milwau- 
kee that a certain structure was an 
encroachment or obstruction did 
not make it so, nor could such dec- 
laration make it a nuisance unless 
it in fact had that character. It is 
a doctrine not to be tolerated in 
this country, that a municipal cor- 
poration, without any general laws 
either of the city or of the state, 
within which a given structure can 
be shown to be a nuisance, can, by 
its mere declaration that it is one, 
subject it to removal by any person- 
supposed to be aggrieved, or even 
by the city itself. This would place 
every house, every business, and all 
the property of the city, at the un- 
controlled will of the temporary lo- 
cal authorities." City of Evans- 
ville v. Martin, 41 Ind. 145. 

set City of Bloomington v. Rich- 
ardson, 38 111. App. 60. A munici- 
pal ordinance which prohibits pub- 
lic meetings on the streets without 
a permit applies only to those held 



2050 



PUBLIC PROPERTY. 



8C5 



or those for advertising purposes, 865 are usually regarded as ob- 
structions temporary in their character and which can be prohib- 
ited or permitted as the legislative discretion of various localities 
may determine, or, in other words, the use of a highway for any 
one of these purposes is not a usual or legitimate one. The occupa- 
tion of a highway for moving houses, 866 or as a hack stand, 867 so 



pursuant to notice. Weinstein v. 
City of Terre Haute, 147 Ind. 556; 
Commonwealth v. Abrahams, 156 
Mass. 57, 30 N. E. 79; Common- 
wealth v. Davis, 140 Mass. 485; Id., 
162 Mass. 510, 39 N. E. 113; Love v. 
Judge of Recorder's Court of De- 
troit, 128 Mich. 545, 87 N. W. 785, 
55 L. R. A. 618 ; Scranton v. City of 
Minneapolis, 58 Minn. 437, 60 N. W. 
26. The right of the public to the 
use of public parks may be reason- 
ably restrained by the authorities. 
City of Allegheny v. Zimmerman, 
95 Pa. 287. 

sea Town of Dover v. Tawressey, 
2 Marv. (Del.) 285, 43 All. 170; Peo- 
ple v. Cunningham, 1 Denio (N. Y.) 
524; Barker v. Com., 19 Pa. 412. 

863 Simon v. City of Atlanta, 67 
Ga. 618; City of Chariton v. Fra- 
zier, 87 Iowa, 226, 54 N. W. 146; 
Savage v. City of Salem, 23 Or. 381, 
24 L. R. A. 787; Cook v. Dolan, 19 
Pa. Co. Ct. R. 401. A parade con- 
fined to a limited portion of a pub- 
lic road repeated two or three times 
a day and for ten days or two 
weeks is not a legitimate one. 
om. v. Remmel, 31 Pittsb. Leg. J. 
(N. S.; Pa.) 125; West v. Bancroft, 
32 Vt. 371. 

86* Mashburn v. City of Blooming- 
ton, 32 111. App. 245. Salvation 
Army. See, also, cases cited under 
second note in the following sec- 
tion. 

sea in re Flaherty, 105 Cal. 558, 27 
L. R. A. 529; City of Chicago v. 
Trotter, 136 111. 430. "Parades and 



processions upon the streets of a 
city are not necessarily so produc- 
tive of danger and disorder as to 
render them per se the creators of 
public disturbances, nor are they 
necessarily nuisances. There is no 
authority, therefore, in the munici- 
pal corporation, to suppress such 
demonstrations of all kinds, at all 
times and under all circumstances. 
Citizens have the constitutional 
right 'of pursuing their own haypl- 
ness,' and on suitable occasions an 
for lawful purposes, and in a peace- 
able manner, they may gather to- 
gether in street parades and proces- 
sions, if they so desire, provided 
they do not disturb or threaten the 
public peace or substantially inter- 
fere with the rights of others." 
Anderson v. City of Wellington, 40 
Kan. 173, 2 L. R. A. 110; People v. 
City of Rochester, 44 Hun (N. Y.) 
166; State v. Hughes, 72 N. C. 25. 

aoe Wilson v. Eureka City, 173 U. 
S. 32; Dickson v. Kewanee Elec. 
Light & Motor Co., 53 111. App. 379; 
Caldwell v. Town of Pre-emption, 
74 111. App. 32; Inhabitants of Clin- 
ton v. Welch, 166 Mass. 133; State 
v. Sheppard, 64 Minn. 287, 36 L. R. 
A. 305; Graves v. Shattuck, 35 N. 
H. 257; City of Concord v. Bur- 
leigh, 67 N. H. 106, 36 Atl. 606; 
Rice v. Buffalo Steel House Co., 17 
App. Div. (N. Y.) 462; City of Eu- 
reka v. Wilson, 15 Utah, 53, 48 Pac. 
41. 

SOT Curry v. District of Columbia, 
14 App. D. C. 423; City Council of 



865 



ITS CONTROL, AND USE. 



2051 



called, are regarded as unusual and improper uses of a highway 
and which to be lawfully done must have the permission of the 
public authorities, and, in general, the use of the public highway 
for any purpose which prevents its reasonable, seasonable, and 
ordinary use by the general public for purposes connected with 
their business is unlawful and in the proper ease a continuance of 
that use may be enjoined. 868 



Montgomery v. Parker, 114 Ala. 118, 
21 So. 452; City of Colorado 
Springs v. Smith, 19 Colo. 554, 36 
Pac. 540; Turner v. Holtzman, 54 
Md. 148; Masterson v. Short, 3 Abb. 
Pr. (N. S.; N. Y.) 154; People v. 
Brookfleld, 6 App. Div. 398, 39 N. Y. 
Supp. 673; Cohen v. City of New- 
York, 113 N. Y. 532, 4 L. R. A. 406; 
McCaffrey v. Smith, 41 Hun (N. Y.) 
117. The abutting owner's consent 
should be obtained. Branahan v. 
Cincinnati Hotel Co., 39 Ohio St. 
333. 

sesMackall v. Ratchford, 82 Fed. 
41. "The marching men seemed to 
think that they could go and come 
on and over the county road as 
they pleased, because it was a pub- 
lic highway. But this was a mis- 
take. The miners working at Mon- 
tana had the same right to use the 
public road as the strikers had, and 
It was not open and free to their 
use when it was occupied by over 
200 men stationed along it at inter- 
vals of three and five feet, men 
who, if not open enemies, were not 
bosom friends. That some miners 
passed through this line is shown. 
That others feared to do so is plain. 
That the marching column intended 
to interfere with the work at the 
mines would be foolish to deny. 
A highway is a way over which the 
public at large have a right of pas- 
sage. It is a road maintained by 
the public for the general conven- 
ience. True, the strikers had a 



right to march over it as passen- 
gers just the same as all other cit- 
izens; but they had no right to 
make it a parade ground, or stop on 
its sideways at frequent intervals, 
and by the hour, at times when 
other people who had the same 
right to its use were in the habit of 
using it for purposes connected 
with their daily avocations. The 
miners of the Montana mines, as 
well as the owners of that property, 
had the same right to use the pub- 
lic road as had the marching strik- 
ers. It seems to the court that the 
men whose work is interrupted and 
the people whose property is dam- 
aged by the improper use and occu- 
pation of the highway are the peo- 
ple who have the true grounds of 
complaint because of the improper 
use of what in the early books of 
the law is called the 'king's high- 
way.' The building in which we 
are now holding this court is lo- 
cated on the corner of Third and 
Pike streets, Clarksburg. All the 
citizens of that town can use those 
streets for purposes connected with 
their business. All persons prop- 
erly deporting themselves can pass 
along and upon them for all proper 
business matters, or for the mere 
purpose of transit; and all persons, 
due regard being had for the public 
interest and safety, may parade, 
with banners, flags, and bands of 
music, along and over said streets 
at reasonable times and seasonable 



PUBLIC PROPERTY. 



866 



866. Limitations upon power of regulating temporary ob- 
structions. 

Regulations respecting the use of highways by temporary ob- 
structions are regarded as legislative or quasi legislative in their 
character and are usually adopted by law-making bodies of var- 
ious subordinate public corporations to which the power has been 
delegated by the state. In order that regulations of this character 
be, therefore, legal, it is necessary that they be adopted in the 
manner prescribed and by the body designated by law, 809 and the 
usual rule applies that if the power has been delegated to a partic- 
ular body or official to be exercised upon appropriate occasions 
and according to definite rules of action, it cannot be delegated 
by that body or official in turn to others. 870 The rules in respect 
to the validity of ordinances or regulations regarded as legislative 
acts must also be followed. They must be uniform and impartial 



hours, provided the same does not 
prevent the reasonable and season- 
able use of said streets by those en- 
titled to the same. If such use 
should close the business houses 
along said streets, by preventing 
employes from reaching them, then, 
if such parades were not prevented 
by the city authorities, the owners 
of property so affected would be en- 
titled to the aid of the courts in 
protecting their rights. No one 
portion of the community has a 
right to march along those streets 
day after day, night after night, and 
station themselves along them at 
intervals of three or five feet, for 
hour after hour, thereby preventing 
the owners of property located 
thereon from reaching the same in 
person, or by their clerks or other 
employes, for purposes connected 
with their regular business. Under 
such circumstances the police of 
the city would either move the col- 
umn along, out of the way of the 
public business, or take into cus- 
tody the men who without author- 



ity obstruct the streets and public 
highways. The marching men had 
then no such right on the county 
road as they claimed." Hickman 
v. Maisey, 69 Law J. Q. B. 511. 

sea Perry v. New Orleans, M. & C, 
R. Co., 55 Ala. 413; City of Atlanta 
v. Gate City Gaslight Co., 71 Ga. 
106; City of Quincy v. Bull, 106 111. 
337; City of Indianapolis v. Miller, 
27 Ind. 394; Cummins v. City of 
Seymour, 79 Ind. 491; City of North 
Vernon v. Voegeler, 103 Ind. 327 ; 
City of Leavenworth v. Douglass, 
59 Kan. 416; Irwin v. Great South- 
ern Tel. Co., 37 La. Ann. 63; City of 
Grand Rapids v. Hughes, 15 Mich. 
54; Com. v. Hauck, 103 Pa. 536. 

STO City of Montgomery v. Parker, 
114 Ala. 118; Sinton v. Ashbury, 41 
Cal. 525; Denver & S. F. R. Co. v. 
Domke, 11 Colo. 247; City of Chi- 
cago v. Trotter, 136 111. 430, 26 N. 
E. 359; Rich v. City of Napierville, 
42 111. App. 222; Cushing v. City of 
Boston, 128 Mass. 330; Garrabad v. 
Dering. 84 Wis. 585. 54 N. W. 1104, 
19 L. R. A. 858. 



867 



ITS CONTROL AND USE. 



2053 



in their operation and effect; 871 must not violate constitutional 
provisions ; 872 contravene the law of the land, 873 or be inconsistent 
with the general law or the character of the particular corpora- 
tion. 87 * These questions have all been considered in previous sec- 
tions. 

867. Recurring, temporary obstructions. 

Another class of obstructions occurring frequently are those 
which have been designated as temporary recurring obstructions. 
Acts or uses of a highway which constitute these are usually the 
result of the grant of a general right by the public corporation to 
some individual or private corporation engaged in the manufac- 
ture or supply of gas, 875 light, 876 water, 877 transportation, 878 or 



871 City Council of Augusta v. Bu- 
rum, 93 Ga. 68, 26 L. R. A. 340; 
Bordentown & S. A. Turnpike Road 
v. Camden & A. R. & T. Co., 17 N. 
J. Law (2 Har.) 314; Hughes v. 
Providence & W. R. Co. 2 R. I. 493. 

872 city of Newark v. Delaware, 
L. & W. R. Co., 42 N. J. Eq. (15 
Stew.) 196; Buchholz v. New York, 
L. E. & W. R. Co., 148 N. Y. 640. 

873 Potomac, etc., Co. v. U. S., 
etc., Co., 26 Wash. Law Rep. 19; 
Pittsburgh & A. Bridge Co. v. Com. 
(Pa.) 8 Atl. 217; Stormfeltz v. 
Manor Turnpike Co., 13 Pa. 558. 

74 Snyder v. City of Mt. Pulaski, 
176 111. 397, 44 L. R. A. 407. "The 
claim of the appellant that the sec- 
ond ordinance, which granted him 
the privilege of using the well, in 
part of the whole contract and that 
without it he would not have ac- 
cepted the franchise or erected the 
plant, in no way affects the ques- 
tion of law. * * * He must have 
acted with full knowledge of the 
fact that the municipality had no 
right or power to confer on him a 
right to a private use of the street, 
giving him a right to a permanent 



.encroachment thereon and allowing 
him to create a purpresture. There 
being no power in the city to make 
a discrimination in the use of the 
streets in favor of appellant, and 
permit him to have a permanent 
private use of the same or to part 
thereof, if it has done so the most 
that can be said is, it amounted to 
a mere license that would not ren- 
der him amenable to punishment 
for a violation of an ordinance of 
the city in obstructing the street. 
Such permission to so use the 
street is not binding upon the city, 
and is not irrevocable. The munic- 
ipality having no power to grant 
such permanent use, there can be 
no estoppel against it from requir- 
ing the street to be open in its en- 
tirety, because no estoppel can 
arise from an act of the municipal 
authorities done without authority 
of law." Pettis v. Johnson, 56 Ind. 
139; Gould v. City of Topeka, 32 
Kan. 485. 

875 Missouri v. Murphy, 170 U. S. 
78. A gas company having the 
right to make and vend gas in a cer- 
tain city and lay all necessary pipes 



2051 



PUBLIC PROPERTY. 



867 



means of communication. 870 They exist because of the grant of a 



and fixtures in a street is not au- 
thorized to lay electric wires. City 
of Atlanta v. Gate City Gaslight Co., 
71 Ga. 106; Citizens' Gas & Min. Co. 
v. Town of Elwood, 114 Ind. 332, 16 
N. E. 624; Kincaid v. Indianapolis 
Natural Gas Co.. 124 Ind. 577, 24 N. 
E. 1066, 8 L. R. A. 602; Coffeyville 
Min. & Gas Co. v. Citizens' Natunl 
Gas & Min. Co., 55 Kan. 173, 40 Pac. 
326. The claims of rival companies 
cannot be tested by injunction. 
Sharp v. City of South Omaha, 53 
Neb. 700; Parfitt v. Furguson, 150 
N. Y. Ill, 53 N. E. 707; Philadelphia 
Co. v. Borough of Freeport, 167 Pa. 
279, 31 Atl. 571. 

876 City of Chicago v. Mutual Eleo. 
Light & Power Co., 55 111. App. 429; 
Edison Elec. Ilium. Co. v. Hooper, 85 
Md. 110; Crocker v. Boston Elec. 
Light Co., 180 Mass. 516, 62 N. E. 
978; National Subway Co. v. City of 
St. Louis, 169 Mo. 319, 69 S. W. 290; 
State v. Murphy, 134 Mo. 548, 34 L. 
R. A. 369; Trustees of Presbyterian 
Church v. State Board of Com'rs of 
Electric Subways, 55 N. J. Law, 436, 
27 Atl. 809; City of Cincinnati v. 
Cincinnati Edison Elec. Co., 26 
Wkly. Law Bui. 104; City of Alle- 
gheny v. Peoples' Natural Gas & 
Pipeage Co., 172 Pa. 632. 

877 Long Island Water Supply Co. 
v. City of Brooklyn, 166 U. S. 685; 
Illinois Trust & Sav. Bank v. Arkan- 
sas City (C. C. A.) 76 Fed. 271. 34 
L. R, A. 518; City & County of San 
Francisco v. Spring Val. Water- 
works, 39 Cal. 473; Hughes v. City 
of Momence, 163 111. 535, 45 N. E. 
300; Topeka Water Co. v. Whiting, 
58 Kan. 639, 50 Pac. 877. 39 L. R. A. 
90. A license to a water company 
to place its pipings in the street and 
to flush its mains must be exercised 



with reasonable care and due re- 
gard to the right of persons travel- 
ing on the street. 

Frankc v. Paducah Water Supply 
Co., 11 Ky. L. R, 17, 11 S. W. 432, 
718; Wright v. Woodcock, 86 Me. 
113, 29 Atl. 953, 25 L. R. A. 499. A 
water company is not liable to an 
abutting owner because its pipes 
lawfully laid under authority pre- 
vent him from building steps lead- 
ing to a cellar. See, also, as hold- 
ing to the same effect the case of 
Provost v. New Chester Water Co., 
162 Pa. 275, 29 Atl. 914. 

City of Grand Rapids v. Grand 
Rapids Hydraulic Co., 66 Mich. 600, 
33 N. W. 749; Inhabitants of Frank- 
lin Tp. v. Nutley Water Co., 53 N. J. 
Eq. 601, 32 Atl. 381; Inhabitants of 
Saddle River v. Garfield Water Co. 
(N. J. Eq.) 32 Atl. 978; Village of 
Tarrytown v. Pocantico Water- 
Works Co., 48 Hun, 617, 1 N. Y. 
Supp. 394; Witcher v. Holland Wa- 
ter-Works Co., 66 Hun, 619, 20 X. Y. 
Supp. 560; Village of Pelham Manor 
v. New Rochelle Water Co., 143 N. 
Y. 532, 38 N. E. 711; Wheat v. City 
Council of Alexandria, 88 Va. 742, 
14 S. E. 672; Chapman v. Fylde Wa- 
ter-works Co., 9 Rep. 582, [1894] 2 
Q. B. 599. But see Passaic Water 
Co. v. City of Paterson, 65 N. J. Law, 
472, 47 Atl. 462. 

STS st. Louis, A. & T. R. Co. v. 
State, 52 Ark. 51; Fitch v. New 
York, P. & B. R. Co., 59 Conn. 414, 
10 .L. R. A. 188; Palatka & I. R. R. 
Co. v. State. 23 Fla. 546; Sikes v. 
Town of Manchester, 59 Iowa, 65 r 
Mathews v. Kelsey, 58 Me. 56; Ben- 
ton v. City of Elizabeth, 61 N. J, 
Law, 411, 39 Atl. 683, 906: 

879 Borough of Brigantine v. Hol- 
land Trust Co. (N. J. Eq.) 37 At]. 



867 



ITS CONTROL AND USE. 



2055 



right continuing in its nature to use highways in such a manner 
as to cause for a brief period of time, at any one time, its tem- 
porary obstruction. It is scarcely necessary to say that public 
corporations possess the full power to regulate and control the 
manner of the exercise of such a right ; both under its police power 
and also under the general power which it possesses to control the 
use of all highways within its jurisdiction in that manner which 
will preserve to the greatest possible extent the ordinary and 
usual condition of the highway as a means of public travel. 880 
Public corporations cannot alienate their plenary powers to grade 
and improve ways and the right is retained of lowering the grade 
of the street even if by so doing, water or gas pipes of private 
companies previously laid are exposed and the necessity of relay- 
ing them arises. 881 



438; Ampt v. City of Cincinnati, 6 
Ohio N. P. 401. Ordinance author- 
izing use of streets for the laying of 
pneumatic tubes held void because 
of wording. 

sso City Council of Montgomery v. 
Capital City Water Co., 92 Ala. 361. 
9 So. 339. Regulating depth at 
which water pipes shall be laid. 
Carlyle Water. Light & Power Co. 
v. City of Carlyle, 31 111. App. 325. 
A city cannot dictate to a water 
company the locality of a standpipe. 
City of Indianapolis v. Consumers' 
Gas Trust Co., 140 Ind. 107, 39 N. E. 
433, 27 L. R. A. 514; Crocker v 
Boston Elec. Light Co., 180 Mass. 
516, 62 N. E. 978; Goodwillie v. City 
of Detroit, 103 Mich. 283, 61 N. W. 
526. An ordinance requiring all 
water and gas pipes to be laid at 
least one year before a street shall 
be ordered paved held invalid. City 
of Kalamazoo v. Kalamazoo Heat. 
Light & Power Co., 124 Mich. 74, 82 
N. W. 811; Benson v. City of Hobo- 
ken, 33 N. J. Law, 280; Springfield 
Water Co. v. Borough of Darby, 199 
Pa. 400, 49 Atl. 275; Northern Liber- 
ties Com'rs v. Northern Liberties 



Gas Co., 12 Pa. 318. A prohibition 
of the use of streets for the purpose 
of laying gas mains from Dec. 1st to 
the following March held a reason- 
able regulation. Methodist Episco- 
pal Church of Sewickley v. Inde- 
pendent National Gas Co., 22 Pittsb. 
Leg. J. (N. S.; Pa.) 274. The sup- 
ply of gas free to churches as a con- 
dition for the use of streets held in- 
valid. Philadelphia Co. v. Borough 
of Freeport, 167 Pa. 279, 31 Atl. 571. 
Biit see Springfield Water Co. v. 
Suburban Gas Co., 8 Del. Co. R. 
(Pa.) 130. 

88i Rockland Water Co. v. City of 
Rockland, 83 Me. 267, 22 Atl. 166. 
"The plaintiff had a right under its 
charter to lay its pipes through the 
streets of defendant city 'in such 
manner as not to obstruct or impede 
travel thereon.' The city, of course, 
retained the right to repair its 
streets in the ordinary manner. Tn 
picking one of such streets, it is 
charged with so uncovering one of 
the plaintiff's pipes as to expose it 
to frost. Suppose it did. In the ab- 
sence of any improper method in so 
doing, it incurred no liability to the 



2056 



PUBLIC PROPERTY. 



868 



868. Manner of use; further considered. 

There are many acts or uses of public highways which may not 
in effect constitute an obstruction technically speaking, of a high- 
way, but which may be regarded as a nuisance unless authorized 
by some legislative act. 882 The purpose for which a highway is 
created and maintained should not be forgotten ; it is established 
primarily as a means of communication by ordinary methods as a 
way of passing and repassing 883 and further for the secondary 
purpose of supplying to abutting owners several private rights, 
namely, the easements of air, light and access. 884 There are many 
uses to which an abutter is entitled because of the existence of 
these private rights that cannot be regarded as obstructions but 
which are incidental to the legitimate use of the street by him. 885 
They are not either to be regarded as nuisances unless continued 
for that length of time or done in such a manner as to conflict 
with the right of the public as a whole to use the highway as a 



plaintiff. The latter should have 
laid its pipes in such manner that 
ordinary and suitable repairs of the 
road would not affect them. The de- 
fendant has violated no law, nor has 
it invaded any right of the plain- 
tiff." Elster v. City of Springfield, 
49 Ohio St. 82, 30 N. E. 274; Bryn 
Mawr Water Co. v. Lower Merion 
Tp., 15 Pa. Co. Ct. R. 527; Roanoke 
Gas Co. v. City of Roanoke, 88 Va. 
810, 14 S. E. 665. See, also, 900, 
post. 

882 City of Lewiston v. Booth, 3 
Idaho, 692, 34 Pac. 809; Scammon v. 
City of Chicago, 25 111. 424; Town- 
send v. Epstein, 93 Md. 537, 49 Atl. 
629, 52 L. R, A. 409. The construc- 
tion of a passageway over a street 
by an abutting owner is not a pub- 
lic use of the street and cannot be 
authorized. French v. Camp, 18 Me. 
433; Runyon v. Bordine, 14 N. J. 
Law (2 J. S. Green) 472; Com. v. 
Christie, 13 Pa. Co. Ct. R. 149. 

sss Malone v. State, 51 Ala. 55; 



Craig v. People, 47 111. 487; Com. v. 
Wilkinson, 33 Mass. (16 Pick.) 175; 
Langley v. Town of Gallipolis, 2 
Ohio St. 107. The easement of a 
public highway comprehends the 
right of all individuals in the com- 
munity whether on foot or horse- 
back or any kind of vehicle to pass 
and repass together with the right 
of the public to do all the acts nec- 
essary to improve it and keep it in 
repair. 

88* Peck v. Smith, 1 Com. 103; 
Madison Tp. v. Gallagher, 159 111. 
105; Bankhead v. Brown, 25 Iowa, 
540. 

sss Bybee v. State, 94 Ind. 443. 
The maintenance of an enclosed pas- 
sageway between two buildings over 
a public street at a height from thir- 
teen to fourteen feet above it but 
having no support on the street is 
held an obstruction of a highway. 
Callanan v. Gilman, 107 N. Y. 360; 
Clark v. Fry, 8 Ohio St. 358; Loberg 
v. Town of Amherst, 87 Wis. 641. 



809 



ITS CONTROL, AND USE. 



2057 



means of travel, which is usually regarded as the primary and 
the superior purpose for which public ways are established. 888 

Interference with abutter's rights. The principle also obtains 
that many uses of a highway can be prevented even though 
authorized by the public authorities because they constitute an 
interference with some one or more of the abutter's private ease- 
ments in the street, namely, those of air, light and access. 887 

869. Use by abutters. 

An abutter is entitled to the use of a highway for various pur- 
poses as incidental to either private or public rights in the high- 
way and which cannot, therefore, be regarded as a nuisance except 
under the conditions noted in the preceding section. The use of 
the street for structural materials while erecting buildings 888 and 
for business purposes such as loading or unloading goods 889 are 
familiar and ordinary illustrations of a legitimate use, while the 
use of a sidewalk for packages, 890 or the display of wares, 891 the 



sse Atttorney General v. Brighton 
& H. Co-op. Supply Ass'n, 69 Law J. 
Ch. 204; Kerr v. Forgue, 54 111. 482; 
McCloughry v. Finney, 37 La. Ann. 
31; Stuart v. Havens, 17 Neb. 211; 
State v. Buckner, 61 N. C. (Phil.) 
558; Davis v. Corry City, 154 Pa. 
602; Clark v. Fry, 8 Ohio St. 358. 

887 Branahan v. Cincinnati Hotel 
Co., 39 Ohio St. 333; citing Schulte 
v. North. Pac. Transp. Co., 50 Cal. 
592; Brayton v. City of Fall River, 
113 Mass. 218; Pratt v. Lewis, 39 
Mich. 7; State v. Lavarack, 34 N. J. 
Law, 201. 

Flynn v. Taylor, 127 N. Y. 596; 
Coburn v. Ames, 52 Cal. 387. 

sss Chicago v. City of Robbins, 2 
Black (U. S.) 418; City of Cleveland 
v. King, 132 U. S. 295; Martin v. 
Chicago. B. & Q. R, Co., 87 111. App. 
208; Wood v. Mears, 12 Ind. 515; 
O'Linda v. Lothrop, 38 Mass. (21 
Pick.) 292; City of New York v. 
Heft, 13 Daly (N. Y.) 301; In re 
Fiegle, 36 Misc. 27, 72 N. Y. Supp. 



438; Price v. Betz, 199 Pa. 457, 49 
Atl. 217. But see City of Lowell v. 
Simpson, 92 Mass. (10 Allen) 88. 

SSQ General Elec. R. Co. v. Chicago, 
I. & L. R. Co. (C. C. A.) 107 E. 771; 
Attorney General v. Brighton & H. 
Co-op. Supply Ass'n, 69 Law J. Ch. 
204; Haight v. City of Keokuk, 4 
Iowa, 214; Gerdes v. Christopher & 
S. A. I. & F. Co., 124 Mo. 347; Hal- 
sey v. Rapid Transit St. R. Co., 47 
N. J. Eq. 380; Manley v. Leggett, G2 
Hun, 562, 17 N. Y. Supp. 68. 

sso Commonwealth v. Lennon 
(Mass.) 52 N. E. 521. It is no de- 
fense for a violation of an ordinance 
against obstructing a sidewalk that 
it was done while removing furni- 
ture from a house in obedience to 
a writ of execution. People v. Cun- 
ningham, 1 Denio (N. Y.) 524; Da- 
vis v. Corry, 154 Pa. 602. But see 
People v. Van Houten, 13 Misc. 603, 
35 N. Y. Supp. 186. 

soi State v. Rayantis, 55 Minn. 
126; State v. Messolongitis, 74 Minn. 



2058 



PUBLIC PROPERTY. 



870 



construction of scales, 892 or areas 893 in an abutting street by the 
adjoining owner, are not ordinarily regarded as a proper use by 
him. Yet a use which involves the placing of objects of such a 
character as will naturally frighten horses ordinarily gentle and 
well broken is not lawful or reasonable and constitutes a nui- 
sance. 88 * 

870. Miscellaneous uses of a street regarded as obstructions. 

One of the proper purposes and the primary one for which a 
highway can be used is travel, and this idea, therefore, necessarily 
prohibits the use of a street or any portion of it as a lounging or 
gathering place either for an individual or a number of them, 895 
for standing vehicles during long periods of time, 896 placing pla- 



165, 77 N. W. 29. "We cannot hold 
that the license of a foot peddler au- 
thorizes him to expose for sale his 
goods on the sidewalk for an unrea- 
sonable length of time. Such a 
license does not authorize him to 
pre-empt a portion of the sidewalk, 
and use it as a market place or a 
fruit stand. He may, under such 
license, go from house to house, 
and from place to place, in search 
of customers; and. if there is no or- 
dinance to the contrary, he may so- 
licit customers on the street; but he 
cannot stop an unreasonable length 
of time for that purpose or for the 
purpose of making a sale." People 
v. Willis, 9 App. Div. 214, 41 N. Y. 
Supp. 168; Carlisle v. Baker, 1 
Yeates (Pa.) 471; City of Philadel- 
phia v. Sheppard, 158 Pa. 347, 27 
Atl. 972. But see State v. Summer- 
field, 107 N. C. 895, 12 S. E. 114. 

82 Incorporated Town of Spencer 
v. Andrew, 82 Iowa, 14, 47 N. W. 
1007, 12 L. R. A. 115; Emerson v. 
Babcock, 66 Iowa, 258; Davis v. 
Town of Anita, 73 Iowa, 325. 

83Costello v. State. 108 Ala. 45; 
City of Denver v. Girard, 21 Colo. 



447; Buck v. Collis, 17 App. Div. 
465, 45 N. Y. Supp. 291. 

89* Webb v. City of Demopolis, J5 
Ala. 116, 21 L. R. A. 62; Dimock v. 
Town of Suffield, 30 Conn. 129; Jew- 
ett v. Gage, 55 Me. 538; Lynn v. 
Hooper, 93 Me. 46, 44 Atl. 127, 47 L. 
R. A. 752. Hay caps. Kingsbury v. 
Inhabitants of Dedham, 95 Mass. (13 
Allen) 186. It does not necessarily 
follow, however, that an object 
which frightens horses is either an 
obstruction or a nuisance. Bennett 
v. Lowell, 12 R, I. 1G7. 

BOS People v. Cunningham, 1 Denio< 
(N. Y.) 524; Barker v. Com., 19 Pa. 
412. White v. Kent, 11 Ohio St. 
550. Auction sales in streets prohib- 
ited. 

soe Sikes v. Town of Manchester, 
59 Iowa, 65; Com. v. Fenton, 139 
Mass. 195, 29 N. E. 653. A munici- 
pal regulation prohibiting the stop- 
page of teams on streets for more 
than twenty minutes is a valid po- 
lice regulation. People v. Keir, 7S 
Mich. 98, 43 N. W. 1039; Tomlin v. 
City of Cape May, 63 N. J. Law, 429. 
44 Atl. 209; Northrop v. Burrows, W 
Abb. Pr. (N. Y.) 365; Manley v. Leg- 



871 



ITS CONTROL AND USE. 



205^ 



cards, signs, 897 depositing rubbish or impediments to travel, 898 or 
blockading street crossings with cars or engines. 899 But water, 
gas or sewer pipes laid under ground are not usually regarded as 
obstructions. 900 

871. Miscellaneous uses of a street regarded as a nuisance. 

Public authorities may prohibit and regulate the use of a street 
in such a manner as to constitute a nuisance. In addition to acts 
or uses already named and regarded as cases of this character may 
be suggested the scattering of hand bills through the streets, 901 or 
the accumulation of refuse or litter, 902 and others 903 of a similar 



gett, 67 Hun (N. Y.) 562; Borough 
of Norristown v. Moyer, 67 Pa. 355. 
But see State v. Rayantis, 55 Minn. 
126, 56 N. W. 586; State v. Edens, 85 
N. C. 522. 

SOT Com. v. McCafferty, 145 Mass. 
364, 14 N. B. 451. An ordinance for- 
bidding the display on sidewalks of 
shows or parades, placards and 
signs, held reasonable. But see 
State v. Higgs, 126 N. C. 1014, 35 S. 
E. 473, 48 L. R. A. 446. 

sas Williams v. Town of Hardin, 
46 111. App. 67; Wood v. Mears, 12 
Ind. 515; O'Linda v. Lothrop, 38 
Mass. (21 Pick.) 292; State v. 
Campbell, 80 Mo. App. 110; Baird v. 
Clark, 12 Ihio St. 87. Temporary 
fence. Nagle v. Brown, 37 Ohio St. 
7. Tree falling in highway. Com. 
v. Passmore, 1 Serg. & R. (Pa.) 217; 
City of Scranton v. Scranton Steel 
Co., 154 Pa. 171; Hundhauser v. 
Bond, 36 Wis. 29; Loberg v. Town 
of Amherst, 87 Wis. 634. 

89 State v. Chicago, M. & St. P. R. 
Co., 77 Iowa, 442, 4 L. R. A. 298; 
Com. v. New York.. N. H. & H. R. 
Co. 112 Mass. 412; Ranch v. Lloyd, 
31 Pa. 358. See, also, 460, 818, 
and 854, ante. 

oo Consumers' Gas Trust Co. v. 
Huntsinger, 14 Ind. App. 156; Kin- 



caid v. Indianapolis Natural Gas 
Co., 124 Ind. 577, 8 L. R. A. 602; 
Borough of Brigantine v. Holland 
Trust Co., (N. J. Eq.) 37 Atl. 438; 
Kelsey v. King, 32 Barb. (N. Y.) 
410; Sterling's Appeal, 111 Pa. 35.- 
See, also, 896 et seq., post. 

oi People v. Armstrong, 73 Mich.. 
288, 41 N. W. 275, 2 L. R. A. 721. 
But the power must be expressly 
granted. City of Philadelphia v. 
Brabender, 9 Pa. Dist. R. 697, 17 
Pa. Super. Ct. 331. Such an ordi- 
nance held valid even where it ex- 
cludes from its operation the deliv- 
ery of circulars enclosed in address- 
ed envelopes. 

902 state v. City of St. Louis, 161 
Mo. 371, 61 S. W. 658. Ordinance 
relative to construction of litter box- 
es held valid. Raymond v. Keso- 
berg, 84 Wis. 302. 19 L. R. A. 643. 

903 Sierra County v. Butler, 136 
Cal. 547, 69 Pac. 418. Running wa- 
ter in a highway. Mills v. Wil- 
mington City R. Co., 1 Marv. (Del.) 
269, 40 Atl. 1114. In the absence of 
proof to the contrary the use of a 
highway for blasting purposes will 
be presumed to be lawful. City or 
Rochester v. Close, 35 Hun (N. Y.) 
208; Lewis v. Ballston Terminal R. 
Co., 45 App. Div. 129, 60 N. Y. Supp^ 



2060 



PUBLIC PROPERTY. 



872 



nature or those involving the use of a highway by some strange 
vehicle, engine or motor. 90 * 

872. Regulation of traffic. 

Public authorities may also adopt measures which have for their 
purpose a regulation of traffic or travel on a street either based 
upon the idea of its constituting a nuisance and obstruction or 
upon the further one of preserving or maintaining the street in a 
proper condition for travel. Ordinances fixing the limit of speed 
.at which horses or vehicles can be driven or ridden, 005 or the maxi- 
mum load carried by trucks or teams, 906 prescribing the kind of 



1035. Blowing whistles. Mason v. 
West, 61 App. Div. 40, 70 N. Y. Supp. 
478. Use of street by automobiles. 

so* Kerney v. Barber Asphalt Pav. 
Co., 86 Mo. App. 573. Mo. Rev. St. 
1899, 5201, does not apply to the 
movements of steam carriages on 
city streets. Nason v. West, 31 Misc. 
583, 65 N. Y. Supp. 651. An auto- 
mobile is not within the application 
of N. Y. Laws 1890, c. 568; Laws 
1891, c. 212 or Laws 1892, c. 68G. 
Iowa Laws 1892, c. 68, p. 92. 

Miscellaneous uses: Henline v. 
People, 81 111. 269. Gate. Pettis v. 
Johnson, 56 Ind. 139. Steps. Com- 
v. Ruggles, 88 Mass. (6 Allen) 588; 
Halsey v. Rapid Transit St. R. Co., 
47 N. J. Eq. 380. Goods in transit. 
Hand v. Klinker, 54 N. Y. Super. Ct. 
(22 J. & S.) 433. Wagon on side- 
walk. Reimer's Appeal, 100 Pa. 182. 
Bay window. 

Temporary booths for trade: 
Costello v. State, 108 Ala. 45, 35 L. 
R. A. 303; Ely v. Campbell, 59 How. 
Pr. (N. Y.) 333; Barling v. West, 29 
Wis. 307. 

005 Sykes v. Lawlor, 49 Cal. 237; 
Ford v. Whiteman, 2 Pen. (Del.) 
355, 45 Atl. 543; City of Chicago v. 
Banker, 112 111. App. 940. Speed of 
-automobiles. Green v. Eden, 24 Ind. 



App. 583, 56 N. E. 240; Osborn v. 
Jenkinson, 100 Iowa, 432, 69 N. W. 
548; Com. v. Worcester, Thacher Ct. 
Cas. (Mass.) 100; Com. v. Roy, 140 
Mass. 432; Com. v. Crowninshield, 
187 Mass. 221; O'Hara v. Globe Iron 
& Foundry Co., 66 Mo. App. 53; Han- 
rahan v. Cochran, 12 App. Div. 91, 
42 N. Y. Supp. 1031; Kahn v. Eisler, 
22 Misc. 350, 49 N. Y. Supp. 135; 
Schaffer v. Baker Transfer Co., 29 
App. Div. 459, 51 N. Y. Supp. 1092; 
Farley v. City of New York, 152 N. 
Y. 222, 46 N. E. 506; Crampton v. 
Ivie, 124 N. C. 591, 32 S. E. 968; 
May v. Hahn, 22 Tex. Civ. App. 365, 
54 S. W. 416. 

soeNagle v. City Council of Au- 
gusta, 5 Ga. 546; Harrison v. City of 
Elgin, 53 111. App. 452; Hamilton v. 
State, 22 Ind. App. 479, 52 N. E. 
419. The belief of the defendant as 
to whether he had a lawful load is 
immaterial. State v. Boardman, 93 
Me. 73, 44 Atl. 118, 46 L. R. A. 750; 
Commonwealth v. Mulhall, 162 
Mass. 496, 39 N. E. 183; State v. 
Rayantis, 55 Minn. 126; People v. 
Wilson, 62 Hun. 618, 16 N. Y. Supp. 
583; State v. Messenger, 63 Ohio St. 
398, 59 N. E. 105. But see State v. 
Rohart, 83 Minn. 257, 86 N. W. 93, 
333, 54 L. R. A. 947. 



872 



ITS CONTROL AND USE. 



2061 



vehicles or traffic to be allowed on certain streets as boulevards or 
park ways, 907 prohibiting the use of vehicles having tires less than 
a certain width, 908 or the use of sidewalks except by pedestri- 
ans, 909 controlling the use of bicycle paths or bicycles, 910 requiring 
the hitching of horses, 911 regulating the passage of vehicles or ani- 



907 Cicero Lumber Co. v. Town of 
Cicero, 176 111. 9, 51 N. B. 758, 42 L. 
R. A. 696. An ordinance, however, 
is unreasonable and invalid which 
leaves to an unregulated official dis- 
cretion a matter which should be 
controlled by permanent local pro- 
visions operating generally and im- 
partially. Mercer v. Corbin, 117 
Ind. 450, 3 L. R. A. 221; Boston & 
A. R. Co. v. City of Boston, 140 
Mass. 87; City of St. Paul v. Smith, 
27 Minn. 364; State v. Bradford, 78 
Minn. 387, 47 L. R, A. 144. A por- 
tion of a public highway may be set 
apart as a bicycle path for the ex- 
clusive use of bicyclists. City of St. 
Louis v. Dorr, 145 Mo. 466, 46 S. W. 
976, 42 L. R. A. 686; In re Wright, 
29 Hun (N. Y.) 357; Doll v. Devery 
27 Misc. 149, 57 N. Y. Supp. 767. 
But see State v. Rohart, 83 Minn. 
257, 86 N. W. 93, 333, 54 L. R. A. 
947. 

sos Cook v. State, 26 Ind. App. 278, 
59 N. E. 489, citing Gordon v. 
State, 46 Ohio St. 607, 6 L. R. A. 
749; Cincinnati, W. & Z. R, Co. v. 
Clinton County Com'rs, 1 Ohio St. 
77. Particular statute held void be- 
cause of uncertainty. State v. Mes- 
senger, 63 Ohio St. 398, 59 N. E. 105. 

909 City of Indianapolis v. Hig- 
gins, 141 Ind. 1, 40 N. E. 671; 
Wheeler v. City of Boone, 108 Iowa, 
235, 78 N. W. 909, 44 L. R. A. 821. 
Such an ordinancce would not in- 
clude a tricycle operated by hand 
for the convenience of one unable to 
walk. Swift v. City of Topeka, 43 



Kan. 671, 23 Pac. 1075, 8 L. R. A. 
772; State v. Aldrich, 70 N. H. 39J^ 
47 Atl. 602; In re O'Keefe, 46 N. Y.. 
State Rep. 557, 19 N. Y. Supp. 676. 
But dirt from excavations may be 
carried across a sidewalk. State v- 
Brown, 109 N. C. 802, 13 S. E. 940; 
Nelson v. Braman, 22 R. I. 283, 47" 
Atl. 696. See, also, cases cited ia 
the following note. But see Hand v. 
Klinker, 54 N. Y. Super. Ct. (22 J. & 
S.) 433. Delivery wagon backing 
across sidewalk for purpose of de- 
livering goods not a nuisance per se. 
Ordway v. Cornelius, 23 Pa. Co. Ct. 
R. 281. 

910 Mercer v. Corbin, 117 Ind. 450, 
20 N. E. 132, 3 L. R. A. 221; Purple 
v. Inhabitants of Greenfield, 138 
Mass. 1; Lee v. City of Port Huron, 
128 Mich. 533, 87 N. W. 637, 55 L. 
R. A. 308; Thompson v. Dodge, 58 
Minn. 555, 28 L. R. A. 608; State v, 
Bradford, 78 Minn. 387, 81 N. W. 
202, 47 L. R. A. 144; Lechner v. Vil- 
lage of Newark, 19 Misc. 452, 44 N. 
Y. Supp. 556; State v. Lucas, 124 N.. 
C. 804; Westgate v. Spalding, 8 Pa. 
Dist. R. 490; Porter v. Shields, 200 
Pa. 241, 49 Atl. 785; State v. Collins, 
16 R. I. 371, 3 L. R. A. 394; Crouch 
v. State, 39 Tex. Cr. R. 145 ; State v. 
Bruce, 23 Wash. 777. 63 Pac. 519. 

en Higgins v. Wilmington City R. 
Co., 1 Marv. (Del.) 352, 41 Atl. 86 r 
Tenney v. Tuttle, 83 Mass. (1 Allen) 
185; Norris v. Kohler, 41 N. Y. 42; 
Becker v. Schutte, 85 Mo. App. 57; 
Wagner v. New York Condensed 
Milk Co., 46 N. Y. Supp. 939; Davis, 



20G2 



PUBLIC PROPERTY. 



872 



mals through streets, 912 requiring the registration or licensing of 
automobiles, 913 are regulations which have for their purpose the 
prevention of acts suggested in this section. They are regarded 
as a lawful and reasonable exercise either of the police power of 
a public corporation or of its right to regulate and control the use 
of and to maintain public highways. The use of highways by the 
owners of public conveyances is a right, however, not a privilege 
or an occupation and consequently, a municipality is not author- 
ized to impose a license upon them for its exercise. 914 The regula- 
tion and control of municipal parks and boulevards is generally 
regarded as a discretionary power and a matter of purely local 
concern, these public grounds being held and owned by the cor- 
poration, not in its political or governmental capacity, but in a 
quasi private relation in which the authorities act for the exclu- 
sive benefit of the corporation. 915 Public authorities can adopt 
all necessary rules and regulations respecting their use equally 
with other public grounds or highways. 918 



v. Kallfelz, 22 Misc. 602, 50 N. Y. 
Supp. 928; Sondheim v. Nassau 
Brewing Co., 60 App. Div. 463, 69 N. 
Y. Supp. 880; Loeser v. Humphrey, 
41 Ohio St. 378; Bow en v. Flanagan, 
84 Va. 313. 

i2 Roberts v. Ogle, 30 111. 459; 
Creamer v. Mcllwain, 89 Md. 343, 
45 L. R. A. 531; Commonwealth v. 
Curtis, 91 Mass. (9 Allen) 266; 
Com. v. Bean, 80 Mass. (14 Gray) 
52; Com. v. Derby, 162 Mass. 183, 
38 N. E. 440. 

sis City of Chicago v. Banker, 112 
111. App. 94; Com. v. Boyd, 188 Mass. 
79, 74 N. E. 255; People v. Schnei- 
der (Mich.) 103 N. W. 172; State v. 
Cobb (Mo. App.) 87 S. W. 551; Peo- 
ple v. Ellis, 88 App. Div. 481, 85 N. 
Y. Supp. 120; People v. Mac Wil- 
liams, 91 App. Div. 176, 86 N. Y. 
Supp. 357; Com. v. Hawkins, 14 Pa. 
Dist. R. 592; Com. v. Densmore, 29 
Pa. Co. Ct. R. 217. 

i* City of Chicago v. Collins, 175 
111. 445, 51 N. E. 907, 49 L. R. A. 



408; State v. Berdetta, 73 Ind. 185; 
Trustees of Flemingsburg v. Wilson, 
64 Ky. (1 Bush) 203. But see Gait- 
side v. City of East St. Louis 43 111. 
47; Farwell v. City of Chicago, 71 
111. 269; Joyce v. City of East St. 
Louis, 77 111. 156. 

9i6 McDonald v. City of St. Paul, 
82 Minn. 308, 84 N. W. 1022. A city 
may set apart a portion of a public 
street as a boulevard. State v. 
Schweickhardt, 109 Mo. 496, 19 S. 
W. 47; State v. Long, 94 N. C. 896; 
State v. Eastman, 109 N. C. 785; 
City of Portland v. Whittle, 3 Or. 
126; Com. v. Bowman, 3 Pa. 206; 
State v. Wilkinson, 2 Vt. 480. 

010 Ewing v. City of Minneapolis, 
86 Minn. 51, 90 N. W. 10; State v. 
Long, 94 N. C. 896; Langley v. Tov.-n 
of Gallipolis, 2 Ohio St. 107. The 
use or beneficial purpose of a public 
common or square in a city or vil- 
lage where no special use or limita- 
tion is prescribed by the dedication 
is such that it may be improved and 



I 872 



ITS CONTROL AND USE. 



2063 



Road law. To prevent blockades or accidents, officials may 
also, under proper authority, adopt regulations relative to carry- 
ing lights or ringing bells, 917 or pass laws prescribing the man- 
ner in which highways may be used with reference to the direction 
in which individuals or teams shall go upon meeting 91S or passing 
others, 919 or the side of street to be used. 920 In the carriageway 
of a street, vehicles have an equal right with foot passengers, but 
at crossings the right of the latter is a superior one. 921 A viola- 



ornamented for recreation and 
health; for public buildings or as a 
place for the transaction of public 
business or for both the purposes of 
pleasure and business at the discre- 
tion of the municipal authorities. 
Com. v. Bowman, 3 Pa. 206. 

917 Baucher v. City of New Ha- 
ven, 40 Conn. 456; Cook v. Fogarty, 
103 Iowa, 500, 72 N. W. 677, 39 L. 
R. A. 488; City of Emporia v. Wag- 
oner, 6 Kan. App. 659, 49 Pac. 701; 
Kidder v. Inhabitants of Dunstable, 
77 Mass. (11 Gray) 342; Lyon v. 
City of Cambridge, 136 Mass. 419; 
Miller v. City of St. Paul, 38 Minn. 
134 ; Campbell v. City of Providence, 
9 R. I. 262. 

918 Diehl v. Roberts, 134 Cal. 164, 
66 Pac. 202; Dunn v. Moratz, 92 111. 
App. 477; City of Decatur v. Stoops, 
21 Ind. App. 397; Cook Brewing 
Co. v. Ball, 22 Ind. App. 656, 52 N. 
E. 1002; Perlstein v. American Exp. 
Co., 177 Mass. 530, 59 N. E. 194; 
Dudley v. Bolles, 24 Wend. (N. Y.) 
465; Savage v. Gerstner, 36 App. 
Div. 220, 55 N. Y. Supp. 306. The 
meeting law does not apply to pedes- 
trians. Quinn v. Pietro, 38 App. 
Div. 484, 56 N. Y. Supp. 419; Row- 
land v. Wanamaker, 193 Pa. 598, 44 
Atl. 918; State v. Collins, 16 R. I. 
371, 17 Atl. 131, 3 L. R. A. 394. A 
bicycle is a vehicle or carriage with- 
in the meaning of the Stats of R. I. 
c. 66, 1, relative to turning to the 



right when meeting others on pub- 
lic ways. May v. Hahn, 22 Tex. Civ 
App. 365; O'Malley v. Dorn, 7 Wis. 
236. 

919 McLane v. Sharpe, 2 Harr. 
(Del.) 481; Walkup v. May, 9 Ind. 
App. 409; Loyacano v. Jurgens, 50 
La. Ann. 441; Odom v. Schmidt, 52 
La. Ann. 2129; Adams v. Swift, 172 
Mass. 521 52 N. E. 1068; Daniels v. 
Clegg, 28 Mich. 32; Beach v. Parme- 
ter, 23 Pa. 196; Angell v. Lewis, 20 
R. I. 391. 

920 Mooney v. Trow Directory 
Print. & Book Binding Co., 2 Misc. 
238, 21 N. Y. Supp. 957; Schaffer v. 
Baker Transfer Co., 29 App. Div. 
459, 51 N. Y. Supp. 1092; Foote v. 
American Product Co., 195 Pa. 190; 
45 Atl. 934; 49 L. R. A. 764; Angell 
v. Lewis, 20 R. L 391, 39 Atl. 521; 
Winter v. Harris, 23 R. I. 47, 49 
Atl. 398, 54 L. R. A. 643. But see 
Yore v. Muller Coal, Heavy Haul- 
ing & Transfer Co., 147 Mo. 679, 49 
S. W. 855; Brownstein v. Imperial 
Elec. Light Co., 17 Rap. Jud. Que. 
C. S. 292. 

921 Carswell v. City of Wilming- 
ton, 2 Marv. (Del.) 360, 43 Atl. 169. 
The driver of a fire engine though 
entitled to the right of way is sub- 
ject to the same rules as other 
travelers in regard to using due 
care. Holland v. Bartch, 120 Ind. 
46, 22 N. E. 83; Thompson v. 
Dodge, 58 Minn. 555, 60 N. W. 545, 



2064 



PUBLIC PROPERTY. 



tion of a road law resulting in injury or damage to another may 
create a liability. 922 



873. Stock ordinances. 

The authorities have also the right under a grant of the power 
to control public highways, or as a police measure, to pass ordi- 
nances prohibiting the running at large of stock 923 of any par- 
ticular kind, 924 and to provide for impounding animals found run- 



28 L. R. A. 608. A bicycle is a ve- 
hicle, and a person driving a horse 
on a highway has no rights supe- 
rior to those of the person riding 
the bicycle. 

Dieter v. Zbaren, 81 Mo. App. 
612; Barker v. Savage, 31 N. Y. 
Super. Ct. (1 Sweeny) 288; Savage 
v. Gerstner, 36 App. Div. 220, 55 N. 
Y. Supp. 306; Taylor v. Union Trac- 
tion Co., 184 Pa. 465, 40 Atl. 159, 
47 L. R. A. 289. A bicycle is not 
a vehicle in an ordinance giving 
vehicles right of way under certain 
circumstances. 

^Citizens' R. Co. v. Ford, 93 Tex. 
110, 53 S. W. 575, 46 L. R. A. 457. 
An ordinance requiring persons 
riding or driving to check up for 
pedestrians in approaching alleys 
or street crossings does not apply 
to street cars. 

82nDiehl v. Roberts, 134 Cal. 164, 
66 Pac. 202; Payne v. Smith, 34 
Ky. (4 Dana) 497; Peoples' Ice Co. 
v. Steamer "Excelsior," 44 Mich. 
229; Pigott v. Engle, 60 Mich. 221; 
Mittelstadt v. Morrison, 76 Wis. 
265. But see Clifford v. Tyman, 61 
N. H.' 508. 

923 Folmar v. Curtis, 86 Ala. 354, 
5 So. 678; Amyx v. Tabor, 23 Cal 
370; Mathis v. Jones, 84 Ga. 804, 11 
S. E. 1018. Ga. Act Dec. 26, 1888, 
relative to stock running at large 
held unconstitutional because of 



lack of uniformity. Erlinger v. 
Boneau, 51 111. 94 ; Welch v. Bowen, 
103 Ind. 252; Gilmore v. Holt, 21 
Mass. (4 Pick) 258. Such a law re- 
fers to animals found at large 
within the limits of a town though 
their owners reside outside its lim- 
its. See, as holding to the con- 
trary, the case of Town of Marietta 
v. Fearing, 4 Ohio, 429. 

Com. v. Bean, 80 Mass. (14 Gray) 
52; Fritz v. First Div. St. Paul & P. 
R. Co., 22 Minn. 404; State v. Au- 
buchon, 8 Mo. App. 325; Collins v. 
Hatch, 18 Ohio, 523. The power to 
pass must be expressly given to a 
municipal corporation. Johnson v. 
Mocabee, 1 Okl. 204, 32 Pac. 336; 
Goodale v. Sowell, 62 S. C. 516, 40 
S. E. 970; Batsel v. Elaine (Tex. 
App.) 15 S. W. 283; Armstrong v. 
Traylor, 87 Tex. 598, 34 S. W. 440. 
But see State v. Johnson, 41 Minn. 
Ill, 42 N. W. 786. See, also, p. 270, 
ante. 

92+ Gosselink v. Campbell, 4 Iowa, 
296; Com. v. Curtis, 91 Mass. (9 
Allen) 266; Spitler v. Young, 6 
Mo. 42. Ordinance sustained not- 
withstanding owner resided out- 
side corporate limits. Shepherd v. 
Hees, 12 Johns. (N. Y.) 433; Jones 
v. Duncan, 127 N. C. 118, 37 S. E. 
135. Such an ordinance operates 
upon all animals whether the own- 
ers live inside or outside the cor- 



874 



ITS CONTROL AND USE. 



2065 



ning at large in violation of these regulations. 925 An exercise of 
this power necessarily includes the right to impose fines and to 
provide for the sale of stock in case of a nonpayment. 926 

874. Use of highways by public authorities. 

The public authorities may, equally with individuals, use the 
highways or act in such a manner as to cause a nuisance or an 
obstruction and for which they will be liable under the same 
rules applicable to private individuals, 927 but, on the other hand, 
there are certain well recognized uses to which they can put 
highways and which are regarded as lawful in their character. 
The improvement of a highway in any manner is such a use, 928 
and the construction of drains or sewers, 929 the laying of water 



porate limits. City of Waco v. 
Powell, 32 Tex. 258; Kelley v. City 
of Milwaukee, 18 Wis. 83. 

825 Smith v. Ewers, 21 Ala. 38 ; 
Hyde v. Pryor, 13 111. 64; Campau 
v. Langley, 39 Mich. 451; Wilson v. 
Beyers, 5 Wash. 303, 32 Pac. 90; 
Burdett v. Allen, 35 W. Va. 347, 13 
S. E. 1012, 14 L. R. A. 337. See 
cases cited in last two preceding 
notes. 

926 City of Cartersville v. Lan- 
ham, 67 Ga. 753; Chamberlain v. 
City of Litchfield, 56 111. App. 652; 
Slessman v. Crozier, 80 Ind. 487. 
But towns incorporated under the 
general laws of Indiana have no 
such power. Third Municipality v. 
Blanc, 1 La. Ann. 385; Cochrane v. 
City of Frostburg, 81 Md. 54, 27 L. 
R. A. 728; Graves v. Rudd, 26 Tex. 
Civ. App. 554, 65 S. W. 63; Wilcox 
v. Hemming, 58 Wis. 144. 

927 city of Birmingham v. Mc- 
Cary, 84 Ala. 470; Rowell v. Wil- 
liams, 29 Iowa, 210. 

928 Oliver v. Loftin, 4 Ala. 240; 
McKibbin v. State, 40 Ark. 480; 
Pinnix v. City of Durham, 130 N. 
C. 360, 41 S. E. 932; O'Brien v. City 
of Erie, 20 Pa. Co. Ct. R. 337. 

Abb. Corp. VoL III & 



929 Swart v. District of Columbia, 
17 App. D. C. 407; Stevens v. City 
of Muskegon, 111 Mich. 72, 69 N. 
W. 227, 36 L. R. A. 777. A right 
to construct a private sewer can- 
not be arbitrarily revoked. Boy- 
den v. Walkeley, 113 Mich. 609, 71 
N. W. 1099. Private sewer may be 
constructed under authority of mu- 
nicipality. 

Kiley v. Bond, 114 Mich. 447, 72 
N. W. 253; Hunt v. City of Lam- 
bertville, 45 N. J. Law, 279. The 
construction of the sewer must 
have been authorized in the man- 
ner required by law. Ainley v. 
Hackensack Imp. Commission, 64 
N. J. Law, 504, 45 Atl. 807. A li- 
cense to lay a private sewer in a 
public street is revocable at the 
option of the city. 

Wood v. McGrath, 150 Pa. 451, 24 
Atl. 682, 16 L. R. A. 715. The right 
may be granted by public authori- 
ties to construct a private sewer 
along a public street without the 
consent of the abutting lot owner. 
But see Borough of Torrington v. 
Messenger, 74 Conn. 321, 50 Atl. 
873. See, also, 437 et seq., 460, 
and 818, ante, and 886 et seq., post. 



2066 



PUBLIC PROPERTY. 



875 



or gas mains, 930 or conduits for electric wires or pneumatic tubes, 
the stringing of wires or electric poles, 931 are all uses regarded as 
legitimate and proper and which cannot be regarded either as a 
nuisance or an obstruction. In the erection of poles or the string- 
ing of wires, however, the same principles governing private per- 
sons with respect to the rights of abutting owners to access, air 
and light will also control public authorities. 932 The rule above 
given in respect to public improvements, sewers, water and gas 
mains or pipes, apply not only to the original construction of 
these improvements or facilities, but also to the use of the high- 
ways for their change or repair. 933 

875. Use of public buildings or public facilities. 

Public corporations also have ample power to adopt and en- 
force all necessary regulations in respect to the use by individ- 
uals or public officials of public buildings 934 or public facilities, 935 
the latter including, ordinarily, landing places 936 or wharves, 



3o Swart v. District of Columbia, 
17 App. D. C. 407; Boston v. City of 
Hoboken, 33 N. J. Law, 280; Crooke 
v. Flatbush Water-Works Co., 29 
Hun (N. Y.) 245; Smith v. City of 
Goldsboro, 121 N. C. 350, 28 S. E. 
479. See, also, 437 et seq., 460, 
and 818, ante, and 886 et seq., post. 

93i Village of London Mills v. 
Fairview-London Tel. Circ., 105 111. 
App. 146; Domestic Teleg. & Tel. 
Co. v. City of Newark, 49 N. J. Law, 
344. 

82 Hershfield v. Rocky Mountain 
Bell Tel. Co., 12 Mont. 102. 

933 Runyon v. Bordine, 14 N. J. 
Law (2 J. S. Green) 472. 

3* San Joaquin County v. Budd, 
96 Cal. 47, 30 Pac. 967; Scofield v. 
Eighth School Dist., 27 Conn. 499; 
State v. Hart, 144 Ind. 107, 33 L. R. 
A. 118; Herbert v. Benson, 2 La. 
Ann. 770; Borough of Henderson v. 
Sibley County, 28 Minn. 519; Pan- 
coast v. Troth, 34 N. J. Law, 377. 



35 state v. Chicago, M. & St. P. 
R. Co., 77 Iowa, 442, 4 L. R. A. 298; 
Westfield Borough v. Tioga County, 
150 Pa. 153. 

aseKeokuk N. L. Packet Co. v. 
City of Keokuk, 95 U. S. 80; Dis- 
trict of Columbia v. Johnson, 12 
D. C. (1 Mackey) 51; Shinkle v. 
City of Covington, 64 Ky. (1 Bush) 
617. A city keeping a wharf and 
charging for anchoring the boats is 
bound to protect- them against the 
dangers of ordinary floods. Cul- 
bertson v. The Southern Belle, 
Newb. 461, Fed. Gas. No. 3,462; 
Remy v. Municipality No. 2, 15 La. 
Ann. 657; Watson v. Marshall, 16 
La. Ann. 231; Belcher Sugar Re- 
fining Co. v. St. Louis Grain Ele- 
vator Co., 10 Mo. App. 401; People 
v. Mallory, 2 Th. & C. (N. Y.) 76; 
Northwestern Union Packet Co. v. 
City of St. Louis, 4 Dill. 10, 23 Int. 
Rev. Rec. 33, Fed. Cas. No. 10,345. 
But see Northwestern Union 



876 



ITS CONTROL AND USE. 



2067 



ferries, 937 and public waters. 988 Their rights in these respects 
include a control of the time and manner of use by the public, 980 
the charge to be made for a public inspection of public records 94 
or the use of facilities offered. 941 



876. Protection of public property. 

Public authorities have full power to care for, and protect from 
injury or destruction, property owned or held by public corpora- 
tions either directly or as a. trustee for the public, having in view 
the purposes for which the particular property may have been 
acquired, and its legitimate use by the public. 942 Under an appli- 



Packet Co. v. City of St. Paul, 3 
Dill. 454, Fed. Gas. No. 10,346, 
where a wharfage charge was held 
void because in conflict with that 
clause in the constitution of the 
United States which forbids the 
levy of any duty on tonnage with- 
out the consent of Congress. See, 
also, 477, 478, ante. 

93T Minturn v. Larue, 23 How. (U. 
S.) 435; Murphy v. City Council of 
Montgomery, 11 Ala. 586; Ex parte 
Cass (Cal.), 13 Pac. 169; Attorney 
General v. City of Boston, 123 
Mass. 460; Lansing v. Smith, 4 
Wend. (N. Y.) 9; In re Union Ferry 
Co., 98 N. Y. 139; New York & B. 
Ferry Co. v. City of New York, 146 
N. Y. 145, 40 N. E. 785. But see 
Waterbury v. City of Laredo, 68 
Tex. 565, 5 S. W. 81. 

sss McCready v. Virginia, 94 U. S. 
391. 

939Dubois v. City Council Au- 
gusta, Dud. (Ga.) 30; Belcher 
Sugar Refining Co. v. St. Louis 
Grain Elevator Co., 82 Mo. 121. A 
public wharf cannot be leased un- 
conditionally for a term of years to 
be used for a strictly private busi- 
ness. Associates of Jersey County 
v. Jersey City, 34 N. J. Law, 31; 
City of New York v. Ryan, 2 E. D. 



Smith (N. Y.) 368; Hecker v. New 
York Balance Dock Co., 24 Barb. 
(N. Y.) 215; Reighard v. Flinn, 194 
Pa. 352, 4 Atl. 1080. 

94 Hanson v. Eichstaedt, 69 Wis. 
538. 

941 Northwestern Union Packet 
Co. v. City of St. Louis, 4 Dill. 10, 
Fed. Cas. No. 10,345; City of Sacra- 
mento v. Steamer "New World," 4 
Cal. 41; Keokuk N. L. Packet Co. 
v. City of Quincy, 81 111. 422; City 
of Dubuque v. Stout, 32 Iowa, 47, 
80; City of Muscatine v. Keokuk 
N. L. Packet Co., 45 Iowa, 185. In 
the absence of an ordinance pre- 
scribing wharfage, the vessel is not 
liable to make payment to a city 
for using a public wharf. City of 
Keokuk v. Keokuk N. L. Packet 
Co., 45 Iowa, 196; Id., 95 U. S. 80; 
First Municipality v. Pease, 2 La. 
Ann. 538; Dugan v. City of Balti- 
more, 5 Gill. & J. (Md.) 357; Mac- 
Donnell v. International & G. N. R. 
Co., 60 Tex. 590. 

9*2 Alexander v. Johnson, 144 
Ind. 82; Rogers v. O'Brien, 153 N. 
Y. 357, 47 N. E. 456; Frederick 
County Sup'rs v. City of Winches- 
ter, 84 Va. 467, 4 S. E. 844; State 
v. Wood County Sup'rs, 41 Wis. 
28. 



2068 PUBLIC PROPERTY. 877 

cation of this principle, regulations may be adopted and enforced 
relative to the breaking or trimming of shade trees 843 or the pres- 
ervation of public waters, harbors and water channels. 944 

877. Removal of obstructions. 

Public corporations possess the power to acquire varying inter- 
ests in property for the objects and purposes for which they may 
be directly or indirectly authorized. The right to protect these 
property interests and preserve them, for the various uses for 
which originally acquired is co-extensive with the power and pur- 
pose of acquirement. Not only is this right thus possessed but 
the law imposes upon them the duty of protection and preserva- 
tion. These principles are self-evident upon a consideration of 
the nature of public corporations and the purpose of their organi- 
zation. 845 It follows, therefore, logically and legally, that they 
may, in the manner prescribed by law, effect the removal of all 
obstructions or encroachments upon public property whether tem- 
porary or permanent in their character and without considering 
the further condition of whether such obstructions and encroach- 
ments constitute a nuisance. Property acquired by public corpor- 
ations in this capacity is charged with a public character. 948 

943 Taylor v. Reynolds, 92 Cal. 130 111. 482, 22 N. E. 596, 6 L. R. 

573; Burnham v. Hotchkiss, 14 A. 161, reversing 29 111. App. 115; 

Conn. 311; Bills v. Belknap, 36 Bitzer v. Leverton, 9 Kan. App. 76, 

Iowa, 583; Com. v. Wilder, 127 57 Pac. 1045; Gray v. Henry 

Mass. 1; Consolidated Traction Co. County, 19 Ky. L. R. 885, 42 S. W. 

v. Township of East Orange, 61 N. 333; Nichols v. City of Minneapolis, 

J. Law, 202, 38 Atl. 803. See, also, 33 Minn. 430; City of Newark v. 

880 and 916, post. Delaware, L. & W. R. Co., 42 N. J. 

**City of Ogdensburgh v. Lyon, Eq. 196, 7 Atl. 123; Kunz v. City of 

7 Lans. (N. Y.) 215; Coonly v. City Troy, 48 Hun, 619, 1 N. Y. Supp. 

of Albany, 57 Hun, 327, 10 N. Y. 596; Waukesha Hygeia Mineral 

Supp. 512, 132 N. Y. 145, 30 N. E. Spring Co. v. Village of Waukesha, 

382; City of Portland v. Montgom- 83 Wis. 475, 53 N. W. 675. See, 

ery, 38 Or. 215, 62 Pac. 755. An also, cases cited generally under 

ordinance establishing a wharf line this section. 

will be presumed to be reasonable 946 Clift v. State, 6 Ind. App. 199; 
unless the contrary is shown. State v. Wertzel, 84 Wis. 344; Cris- 
Walpole v. City Council, 32 S. C. mon v. Deck, 84 Iowa, 344; Ricker 
545, 11 S. E. 391; Wisconsin River v. Barry, 34 Me. 116. It is no de- 
Imp. Co. v. Lyons, 30 Wis. 61. fense in an action for obstructing 

9*8 People v. Com'rs of Highways, a public way that the plaintiff ob- 



878 ITS CONTROL AND USB. 2069 

Highways and pleasure grounds especially are secured for a devo- 
tion to certain public uses, the nature of which has been already 
sufficiently denned and discussed. 047 The public in whom may be 
vested the right to enjoy for certain lawful purposes and in a pre- 
scribed manner cannot be deprived of this right permanently or 
temporarily by a use or occupation which destroys or impairs that 
right. 948 

878. Removal of nuisances. 

It is not every use or act in a highway that may constitute an 
obstruction in the technical and literal sense of that word, and, 
further, there are many uses which abutting owners may make of 
public grounds which cannot be regarded either as obstructions or 
nuisances unless continued for such a length of time or done in 
such a manner as to conflict with the superior right of the com- 
munity as a whola to use these highways or grounds as a means of 
travel or recreation which is regarded as the primary and supe- 
rior purpose for which they are acquired and maintained. 949 The 
construction of a tunnel underneath the street or the passageway 
in the air over it, the placing of awnings, 950 or the construction 

structs it on his own land. City of 18 Tex. 858. See 853 et seq., 

Grand Rapids v. Hughes, 15 Mich. ante and 887 et seq., post. 
54. The power to impose a penalty 9*9 Webb v. City of Demopolis, 

for an encroachment on a street 95 Ala. 116, 21 L. R. A. 62; City 

must be directly given. and County of San Francisco v. 

Chaffin v. State (Tex. Cr. App.) Buckman, 111 Gal. 25; City of Co- 

24 S. W. 411. The use of threaten- lumbus v. Jaques, 30 Ga. 506; At- 

ing language does not render de- torney General v. Brighton & H. 

fendant guilty of obstructing or in- Co-op. Supply Ass'n, 69 Law Ch. 

juring a highway. Raymond v. 204. 

Keseberg, 84 Wis. 302, 19 L. R. A. MO City Council of Augusta v. Bu- 

643. See sections immediately fol- rum, 93 Ga. 68, 26 L. R. A. 340; 

lowing and cases cited. Pedrick v. Bailey, 78 Mass. (12 

9*7 See 422 et seq., 436 and 797 Gray) 161; Hawkins v. Sanders, 45 

et seq., ante. Mich. 491; Fox v. City of Winona, 

948 Carey v. Rae, 58 Cal. 159; 23 Minn. 10; Bohen v. City of Wa- 

New Orleans Gas-Light Co. v. Hart, seca, 32 Minn. 176; Hisey v. City of 

40 La. Ann. 474, 4 So. 215; Phil- Mexico, 61 Mo. App. 248; Farrell v. 

brick v. Town of University Place, City of New York, 52 Hun, 611, 5 

88 Iowa, 354, 55 N. W. 345; Emer- N. Y. Supp. 580; Lavery v. Hanni- 

son v. Babcock, 66 Iowa, 257, 23 N. gan, 52 N. Y. Super. Ct. 463; Hume 

W. 656; Hedgepeth v. Robertson, v. City of New York, 74 N. Y. 264. 



2070 PUBLIC PROPERTY. 879 

of projections from buildings 951 in a street, do not constitute ob- 
structions to public travel and yet they may be removed as nui- 
sances. One may also so drive or walk in a public highway, 052 or 
employ a startling or novel mode of progression, 953 in such a manner 
as to constitute a nuisance. 

Definition of a nuisance. In a discussion of nuisances it is well 
to remember the definition of a nuisance and the principles laid 
down in those sections relating to the subject which control public 
authorities in their abatement. 954 This particular principle is so 
important that it will bear repetition, namely, that it is not legis- 
lative or official action in itself or by itself which can constitute 
an act or use of property a nuisance, when considering the cir- 
cumstances and conditions which create one, it is not of this char- 
acter. 955 

879. Authority for removal of obstructions or nuisances. 

The power as vested in public authorities to remove obstructions 
or nuisances is a continuing one, 956 need not be expressly granted 
in all cases, 957 and further, is one which cannot be contracted or 

951 People v. Holladay, 93 Cal. 474, 28 Atl. 1039, 23 L. R. A. 685. 
248; Hawley v. Harrall, 19 Conn. See, also, 137 et seq., ante. 

142; Day v. Green, 58 Mass. (4 Question for jury. Burnham v. 

Cush.) 433; State v. Higgs, 126 N. Hotchkiss, 14 Conn. 311; Zimmer- 

C. 1014, 48 L. R. A. 446. See, also, man v. State, 4 Ind. App. 583; Hop- 

869, ante. kins v. Crombie, 4 N. H. 525. 

952 Reg. v. Williams, 55 J. P. 406. <6 Wabash R. Co. v. City of Den- 
Four men walking abreast on a ance, 167 U. S. 88; Ely v. Parsons, 
pavement causing others to go into 55 Conn. 83; Atwood v. Partree, 56 
the carriageway in order to pass Conn. 80; Jones v. Williams, 70 Ga. 
them does not constitute an unlaw- 704; Hurst v. Cassiday, 5 Ky. L. R. 
ful obstruction of the highway. 771; Graves v. Shattuck, 35 N. H. 
People v. Cunningham, 1 Denio (N. 258; Cook v. Harris, 61 N. Y. 448; 
Y.) 524; Barker v. Com., 19 Pa. 412. Compton v. Waco Bridge Co., 62 

953 Jackson v. Castle, 80 Me. 119; Tex. 715. 

Taylor v. City of Cumberland, 64 BT City of Terre Haute v. Turner, 

Md. 68. 36 Ind. 522; Bitzer v. Leverton, 9 

54 see 137 et seq., ante. Kan. App. 76, 57 Pac. 1045; Dudley 

955 Nutter v. Pearl, 71 N. H. 247, v. Trustees of Frankfort, 51 Ky. 

51 Atl. 897. The question of (12 B. Mon.) 610; City of Philadel- 

whether a stepping stone is a nui- phia v. Philadelphia & R. R. Co., 58 

sance is one for the jury. Avis v. Pa. 253. 
Borough of Vineland, 56 N. J. Law, 



879 



ITS CONTROL AND USB. 



2071 



bargained away. 958 The power possessed to be exercised for the 
protection of public rights is governmental in its nature and, there- 
fore, cannot be lost in any way so long as there remains an object 
or right in respect to which it may be exercised. 959 The determin- 
ation of public authorities that an act or a use of a highway con- 
stitutes an obstruction is usually conclusive. 960 The authority for 
the removal must be strictly followed and where the statutes pro- 
vide for the commencement of proceedings by certain designated 
officials, those brought by others, 961 or not in the manner provided, 
must be dismissed. 962 

The right as vested in an individual. It is seldom that a private 
individual possesses the legal right to personally remove an 
obstruction or abate a nuisance though instances where this is per- 
mitted have occurred. 963 



ess City of Grand Rapids v. 
Hughes, 15 Mich. 54. See, also, 
912, 913, post. 

959 Sheen v. Stothart, 29 La. Ann. 
630; Compton v. Waco Bridge Co., 
62 Tex. 715. 

seo Vanderhurst v. Tholcke, 113 
Cal. 147, 45 Pac. 266, 35 L. R. A. 
267; Morrison v. Howe, 120 Mass. 
565; Lewis v. Ballston Terminal R. 
Co., 45 App. Div. 129, 60 N. Y. Supp. 
1035. In an action for damages for 
placing an obstruction in a high- 
way, the question of whether or 
not there was a reasonable neces- 
sity therefor is one of fact for the 
jury. Chase v. City of Oshkosh, 81 
Wis. 313, 51 N. W. 560, 15 L. R. A. 
553. 

96i Hall v. Kauffman, 106 Cal. 451, 
39 Pac. 756; San Benito County v. 
Whitesides, 51 Cal. 416; Bailey v. 
Dale, 71 Cal. 34, 11 Pac. 804; Be- 
quette v. Patterson, 104 Cal. 282, 37 
Pac. 917; Savage v. Cass County 
Com'rs, 10 111. App. 204; Town of 
Chatham v. Mason, 53 111. 411; 
Powell County v. Kentucky Lum- 
ber Co., 15 Ky. L. R. 577, 24 S. W. 



114; Allen v. Hiles, 67 N. J. Law, 
135, 50 Atl. 440; Lawrence R. Co. 
v. Mahoning County Com'rs, 35 
Ohio St. 1; Appeal of North Man- 
heim Tp. (Pa.) 14 Atl. 137; Wood- 
ward v. South Carolina & G. R. Co., 
47 S. C. 233, 25 S. E. 146; State v. 
Wolfe, 61 S. C. 25, 39 S. E. 179. 
Concurrent jurisdiction may be by 
different bodies or officials. 

962 Mather v. Simonton, 73 Ind. 
595; Sloan v. Rebman, 66 Iowa, 81; 
Ackerman v. True, 31 Misc. 597, 66 
N. Y. Supp. 140; Rozell v. Andrews, 
103 N. Y. 150; State v. Smith, 54 
Vt. 403. 

963 Wellborn v. Davies, 40 Ark. 
83; Bidinger v. Bishop, 76 Ind. 244; 
Inhabitants of Arundel v. McCul- 
loch, 10 Mass. 70; White v. Leoni- 
das Tp. Highway Com'rs, 95 Mich. 
288, 54 N. W. 875; Currier v. Davis, 
68 N. H. 596, 41 Atl. 239; Goldsmith 
v. Jones, 43 How. Pr. (N. Y.) 415; 
Higgins v. Grove, 40 Ohio St. 521; 
Williams v. Fink, 18 Wis. 265. But 
see Corthell v. Holmes, 88 Me. 376, 
34 Atl. 173; State v. Galvin, 27 
Minn. 16; Morris & E. R. Co. v. 



2072 



PUBLIC PROPERTY. 



880 



880. Mode of removal. 

Obstructions or nuisances are summarily removed or abated usu- 
ally through arbitrary official action on the part of the public au- 
thorities with or without notice where this mode is authorized, 964 



Newark Pass. R. Co., 51 N. J. Eq. 
379; People v. Keating, 62 App. 
Div. 348, 71 N. Y. Supp. 97, re- 
versed in 168 N. Y. 390, 61 N. E. 637. v 
See, also, 885, post. 

964 Winter v. City of Montgom- 
ery, 83 Ala. 589, 3 So. 235. Permis- 
sion of a city council to construct a 
veranda which obstructs a side- 
walk is a revocable license merely 
and an order for its removal with- 
out paying the owner is not the 
taking of property without compen- 
sation. 

Freshour v. Hihn, 99 Gal. 443, 34 
Pac. 87; City of Hartford v. Hart- 
ford St. R. Co., 73 Conn. 327, 47 Atl. 
330. Sufficiency of notice. Keat- 
ing v. McDonald, 73 Conn. 125, 46 
Atl. 871 ; Laing v. City of Americus, 
86 Ga. 756, 13 S. E. 107; Hatton v. 
Village of Chatham, 24 111. App. 
622; Caldwell v. Town of Pre-emp- 
tion, 74 111. App. 32; Epler v. Ni- 
man, 5 Ind. 459; Cook v. Gaylord, 
91 Iowa, 219, 59 N. W. 30; Carver 
v. Com., 75 Ky. (12 Bush) 264; 
Witt v. Hughes, 23 Ky. L. R. 1836, 
66 S. W. 281; Colburn v. Kittridge, 
131 Mass. 470. 

Whittier v. Mclntyre, 59 Me. 143. 
A statutory provision for the re- 
moval of fences from a highway 
"under indictment of a conviction" 
does not provide an exclusive rem- 
edy. People v. Smith, 42 Mich. 
138; Willson v. Gifford, 42 Mich. 
454; White v. Leonidas Tp. High- 
way Com'rs, 95 Mich. 288, 54 N. W. 
875; Krueger v. Le Blanc, 62 Mich. 
70, 28 N. W. 757; Id., 75 Mich. 424; 



Osborn v. Longsduff, 70 Mich. 127; 
Kurz v. Turley, 54 Mo. App. 237; 
Bierwith v. Pieronnet, 65 Mo. App. 
431; City of Concord v. Burleigh, 
67 N. H. 106, 36 Atl. 606; New York 
& L. B. R. Co. v. Borough of South 
Amboy, 57 N. J. Law, 252, 30 Atl. 
628. Obstructions in a street can- 
not be summarily and forcibly re- 
moved where its legal existence is 
in dispute. 

City of Cape May v. Cape May, 
D. B. & S. R. Co., 60 N. J. Law, 
224, 37 Atl. 892, 39 L. R. A. 609, 
modifying 34 Atl. 397; Delaware & 
A. Tel. Co. v. Committee of Pen- 
sauken Tp., 67 N. J. Law, 91, 50 
Atl. 452. An attempt to remove 
poles placed in a street under color 
of right is illegal. 

Traphagen v. Jersey City, 52 N. 
J. Law, 65; Kane v. City of Troy, 
48 Hun, 619, 1 N. Y. Supp. 536; 
Olendorf v. Sullivan, 59 Hun, 620, 
13 N. Y. Supp. 6; Hathaway v. 
Jenks, 67 Hun, 289, 22 N. Y. Supp. 
421; Moore v. Village of Fairport, 
11 Misc. 146, 32 N. Y. Supp. 633; 
Electric Power Co. v. City of New 
York, 29 Misc. 48, 60 N. Y. Supp. 
590. After failure to comply with 
notice to place wires underground 
they may be summarily cut by the 
public officials. 

Cook v. Harris, 61 N. Y. 448; 
Kellogg v. Thompson, 66 N. Y. 88; 
James v. Sammis, 132 N. Y. 239, 30 
N. E. 502; Town of Sardinia v. But- 
ler, 149 N. Y. 505, 44 N. E. 179, re- 
versing 78 Hun, 527, 29 N. Y. Supp. 
481; Delaware, L. & W. R. Co. v. 



880 



ITS CONTROL AND USE. 



2073 



or by civil proceedings which have for their purpose not only 
the removal or abatement of the nuisance as it exists but their 
recurrence through writs of injunction. 965 The plan of proced- 
ure to be followed is prescribed by ordinances or statutes and vary 
not only in the different states but from time to time in each of 
them. They may be pursued by either the public authorities 9afl 



City of Buffalo, 158 N. Y. 266, 53 N. 
E. 44; Whittaker v. Ferguson, 16 
Utah, 240, 51 Pac. 980; Neff v. Pad- 
dock, 26 Wis. 546; Pauer v. Al- 
brecht, 72 Wis. 416, 39 N. W. 771; 
Nicolai v. Davis, 91 Wis. 370, 64 N. 
W. 1001. But see Childs v. Nelson, 
69 Wis. 125, 33 N. W. 587. 

965 City of Detroit v. Detroit City 
R. Co., 56 Fed. 867; Draper v. 
Mackey, 35 Ark. 497; Chicago, B. & 
Q. R. Co. v. City of Quincy, 136 111. 
489; Strunk v. Pritchett, 27 Ind. 
App. 582, 61 N. E. 973; Lebanon 
Tp. v. Burch, 78 Mich. 641; Fox v. 
City of W T inona, 23 Minn. 10. Erec- 
tion of awning post. Township of 
Hutchinson v. Filk, 44 Minn. 536, 47 
N. W. 255; Illinois Cent. R. Co. v. 
Thomas, 75 Miss. 54; Inhabitants 
of Trenton v. McQuade, 52 N. J. 
Eq. 669, 29 Atl. 354; Adler v. Met- 
ropolitan El. R. Co., 46 N. Y. State 
Rep. 253, 18 N. Y. Supp. 858; Com. 
v. Pittston Ferry Bridge Co., 176 
Pa. 394, 35 Atl. 240. It is error to 
decree the removal of a bridge pier 
from the limits of a highway where 
it is not found to what extent if 
any it encroaches upon it. Schwede 
v. Hemrich Bros. Brew. Co., 29 
Wash. 21, 69 Pac. 362; Town of 
Neshkoro v. Nest, 85 Wis. 126, 55 
N. W. 176; City of Eau Claire v. 
Matzke, 86 Wis. 291, 56 N. W. 874; 
City of Madison v. Mayers, 97 Wis. 
399, 40 L. R. A. 635. But see At- 
torney General v. Bay State Brick 
o., 115 Mass. 431. 



066 Reede v. City of Birmingham, 
92 Ala. 339, 9 So. 961; City of Mo- 
bile v. Louisville & N. R. Co., 124 
Ala. 132, 26 So. 902; Peck v. Los 
Angeles County Sup'rs, 90 Cal. 384, 
27 Pac. 301; Chicago, B. & Q. R. 
Co. v. City of Quincy, 136 111. 489, 
27 N. E. 232; McCormick v. South 
Park Com'rs, 150 111. 516; Com. v. 
Illinois Cent. R. Co., 20 Ky. L. R. 
606, 47 S. W. 258. The fiscal court 
of each county as well as the cir- 
cuit court have jurisdiction of pro- 
ceedings relative to the obstruction 
of public roads. 

City of Big Rapids v. Comstock, 
65 Mich. 78. Where a building en- 
croached on the street only four 
and one-half inches, an order for a 
decree directing the walls to be 
torn down should be reversed. 
Township of Hutchinson v. Filk, 44 
Minn. 536, 47 N. W. 255; Lockwood 
v. Wabash R. Co., 122 Mo. 86, 24 L. 
R. A. 516; Nixon v. Town of Biloxi 
(Miss.) 5 So. 621; Town of Monroe 
v. Connecticut River Lumber Co., 
68 N. H. 89, 39 Atl. 1019; City of 
Newark v. Delaware L. & W. R. 
Co., 42 N. J. Eq. 196, 7 Atl. 123; 
Borough of Brigantine v. Holland 
Trust Co. (N. J. Eq.) 35 Atl. 344. 
The power to remove nuisances 
and obstructions must be exercised 
in the manner prescribed by law. 

Lathrop v. City of Morristown, 65 
N. J. Law, 467, 47 Atl. 450; Darby 
v. Nash, 52 N. J. Law, 127; Trus- 
tees of Presbyterian Church v. 



2074 



PUBLIC PROPERTY. 



880 



or in some cases by private individuals who have sustained 
injuries distinct and peculiar and different from those sustained 
by the public at large. 987 In proceedings for an injunction, the 
usual rules in respect to necessary and sufficient evidence 968 and 
necessity for the writ 969 obtain and it must also clearly appear 
that there is no adequate remedy at law for obtaining the desired 
relief. 970 



Electrical Subway Com'rs, 55 N. J. 
Law, 436; Metropolitan Exhibition 
Co. v. Newton, 51 Hun, 639, 4 N. Y. 
Supp. 593. The power to remove 
obstructions from a street may be 
delegated. Village of Hempstead 
v. Ball Elec. R. Co., 9 App. Div. 48, 
41 N. Y. Supp. 124. 

967Cabbell v. Williams, 127 Ala. 
320, 28 So. 405; Goggans v. My- 
rick, 131 Ala. 286, 31 So. 22; First 
National Bank of Montgomery v. 
Tyson, 133 Ala. 459, 32 So. 144, 59 
L. R. A. 399; San Jose Ranch Co. v. 
Brooks, 74 Cal. 463, 16 Pac. 250; 
Marini v. Graham, 67 Cal. 130; At- 
wood v. Partree, 56 Conn. 80, 14 
Atl. 85; Brunswick & W. R. Co. v. 
Hardey, 112 Ga. 604, 37 S. E. 888, 
52 L. R. A. 396; Earll v. City of Chi- 
cago, 136 111. 277, 26 N. E. 370; 
Sunderland v. Martin, 113 Ind. 411, 
15 N. E. 689; Pittsburgh C., C. & 
St. L. R. Co. v. Noftsger, 148 Ind. 
101, 47 N. E. 332; Powell v. Bunger, 
91 Ind. 64; Matlock v. Hawkins, 92 
Ind. 225; Miller v. Schenck, 78 
Iowa, 372, 43 N. W. 225; Billard v. 
Erhart, 35 Kan. 611; Shields v. 
Louisville & N. R. Co., 16 Ky. L. R. 
849, 29 S. W. 978; Holmes v. Cort- 
hell, 80 Me. 31, 12 Atl. 730; Roberts 
v. Fitzgerald, 33 Mich. 4; Thelen v. 
Farmer, 36 Minn. 225, 30 N. W. 
670; Shero v. Carey, 35 Minn. 423; 
Bailey v. Culver, 84 Mo. 531; Par- 
sons v. Travis, 8 N. Y. Super. Ct. 
(1 Duer) 439; Callanan v. Oilman, 



52 N. Y. Super. Ct. (20 J. & S.) 
112; Halleran v. Bell Tel. Co., 64 
App. Div. 41, 71 N. Y. Supp. 685; 
Wakeman v. Wilbur, 147 N. Y. 657, 
42 N. E. 341, reversing 51 Hun, 638, 
4 N. Y. Supp. 938; Coatsworth v. 
Lehigh Val. R. Co., 156 N. Y. 451, 
51 N. E. 301; Philadelphia & T. R. 
Co. v. Philadelphia & B. Pass. R. 
Co., 6 Pa. Dist. R. 269; Pittsburgh 
& L. E. R. Co. v. Jones, 111 Pa. 
204; Hill v. Hoffman (Tenn. Ch. 
App.) 58 S. W. 929; Johnson v. 
Maxwell, 2 Wash. St. 482, 27 Pac. 
1071; Wilson v. West & Slade Mill 
Co., 28 Wash. 312, 68 Pac. 716. See, 
also, 885. 

68 Smith v. Talbot, 77 Cal. 16; 
People v. Young, 72 111. 411; Barn- 
ard v. Nacomis Highway Com'rs, 
172 111. 391, 50 N. E. 120; Carlin v. 
Wolf, 154 Mo. 539, 51 S. W. 679, 55 
S. W. 441; Town of New Castle v. 
Hay wood, 67 N. H. 178; City of 
Philadelphia's Appeal, 78 Pa. 33. 

960 Inhabitants of Raritan Tp. v. 
Port Reading R. Co., 49 N. J. Eq. 
11, 23 Atl. 127, citing Att'y Gen. v. 
New Jersey & T. R. Co., 3 N. J. 
Eq. (2 H. W. Green) 136; Inhabit- 
ants of Woodbridge v. Inslee, 37 N. 
J. Eq. (10 Stew.) 397. 

People v. Equity Gas Light Co., 
141 N. Y. 232, 36 N. E. 194. 

970 Murphy v. Harbison, 29 Ark. 
340; Columbia County Com'rs v. 
Bryson, 13 Fla. 281; Montana Tp. 
v. Ruark, 39 Kan. 109, 18 Pac. 61; 



880 



ITS CONTROL AND USE. 



2075 



Statutes may also impose penalties for obstructing public high- 
ways or interfering with public property. 971 

Removal of natural obstructions. Highways may be also 
obstructed by the fall of snow or the presence of natural objects. 
These may be arbitrarily removed when sanctioned by public 
officials as an exercise of a discretionary power vested in them to 
improve highways and streets and to preserve and maintain them 
in a proper condition for travel. 972 The removal of trees under 



Inhabitants of Needham v. New 
York & N. E. R. Co., 152 Mass. 61, 
25 N. E. 20; Township of Lebanon 
v. Burch, 78 Mich. 641, 44 N. W. 148. 

an Sierra County v. Butler, 136 
Cal. 547, 69 Pac. 418. A statute 
providing for the recovery of a pen- 
alty for obstructing a highway is 
an exclusive remedy. Bailey v. 
Dale, 71 Cal. 34, 11 Pac. 804; Fresh- 
our v. Hihn, 99 Cal. 443, 34 Pac. 
87; Hall v. Kauffman, 106 Cal. 451; 
Blakeslee v. Tyler, 55 Conn. 397, 11 
Atl. 855; Scott v. Town of New 
Boston, 26 111. App. 108; Wragg v. 
Penn Tp., 94 111. 11; Boyd v. Town 
of Farm Ridge, 103 111. 408; Town- 
ship of Madison v. Gallagher, 159 
111. 105, 42 N. E. 316; Town of 
Wheatfield v. Grundmann, 164 111. 
250, 45 N. E. 164; White v. Town 
of Foxborough, 151 Mass. 28, 23 N. 
E. 652; Pettinger v. People, 20 
Mich. 336; Parker v. People, 22 
Mich. 93; Hines v. Darling, 99 
Mich. 47, 57 N. W. 1081. Obstruct- 
ing ditch. 

Overseer of Highways of Road 
Dist. No. 4 v. Pelton, 129 Mich. 31, 
87 N. W. 1029; Hines v. Darling, 99 
Mich. 47; Hariston v. Francher, 15 
Miss. (7 Smedes & M.) 249; Town 
of Corning v. Head, 86 Hun, 12, 33 
N. Y. Supp. 360; Lawrence R. Co. 
v. Mahoning County Com'rs, 35 
Ohio St. 1. The measure of dam- 
ages ordinarily under the Ohio Act 



1873 is the cost of removing the 
obstructions and restoring the 
highway to its former condition. 

State v. Floyd, 39 S. C. 23, 17 S. 
E. 505; State v. Smith, 52 Wis. 134; 
State v. Pomeroy, 73 Wis. 664, 41 
N. W. 726. There is a clear dis- 
tinction between an encroachment 
and an obstruction in a highway 
and an action to cover penalty for 
obstructing a highway does not lie 
where the remedy is by proceeding 
according to the statute to deter- 
mine whether an encroachment has 
been made. State v. Childs, 109 
Wis. 233, 85 N. W. 374. 

972 vanderhurst v. Tholcke, 113 
Cal. 147, 45 Pac. 266, 35 L. R. A. 
267; Ely v. Parsons, 55 Conn. 83, 10 
Atl. 499; City of Mt. Carmel v. 
Shaw, 155 111. 37, 39 N. E. 584, 27 
L. R. A. 580, reversing 52 111. App. 
429; Wilson v. Simmons, 89 Me. 
242, 36 Atl. 380; Gaylord v. King, 
142 Mass. 495. Trustees. Chase 
v. City of Lowell, 149 Mass. 85, 21 
N. E. 233; Miller v. Detroit, Y. & A. 
A. R. Co., 125 Mich. 171, 84 N. W. 
49, 51 L. R. A. 955. The right to 
remove shade trees is dependent 
under the statute upon giving no- 
tice and an opportunity to the 
owner to remove them and this is 
true whether the removal is sought 
by the public authorities or one to 
whom the use of the streets for the 
construction of an electric railway 



2076 



PUBLIC PROPERTY. 



880 



these circumstances will afford the adjoining property owner no 
claim for damages occasioned by the destruction of the obstruc- 
tions removed or their removal. 973 Public authorities may also, in 
the case of a fall of a natural obstruction, for example sleet or 
snow, direct its removal by adjoining property owners, but the 
exercise of this power will be governed by the principles in respect 
to the passage of legislation. Ordinances or regulations adopted 
for this purpose must be reasonable to be valid. 974 



line has been lawfully given. Dodd 
v. Consolidated Traction Co., 57 N. 
J. Law, 482, 31 Atl. 980. A com- 
pany authorized by the city to erect 
trolley wires has the right to top 
the branches of trees when it is 
reasonably necessary for the pas- 
sage of its wires. 

Young v. Crane, 68 N. J. Law, 
453, 51 Atl. 482; Town of Wheat- 
field v. Shasley, 23 Misc. 100, 51 
N. Y. Supp. 835. Trees lawfully 
planted and maintained within a 
highway are not obstructions 
within N. Y. Laws 1890, c. 568, 
105, which authorizes highway com- 
missioners to remove obstructions 
or encroachments on highways on 
notice to the adjoining landowner. 
Chase v. City of Oshkosh, 81 Wis. 
313, 51 N. W. 560, 15 L. R. A. 553. 
But see City of Atlanta v. Holliday, 
96 Ga. 546, 23 S. E. 509, where in- 
junction against removal of trees 
was granted. Crismon v. Deck, 84 
Iowa, 344, 51 N. W. 55, where, un- 
der peculiar facts, a road super- 
visor was enjoined from removing 
shade trees and a hedge within the 
limits of a highway. 

Evans v. Board of Street Com'rs, 
34 Hun, 206, 32 N. Y. Supp. 547. 
An injunction will lie against the 
threatened removal of shade trees 
growing in a city street by street 
commissioners without its having 
first been determined under the 



statute that the trees proposed to 
be removed are detrimental or in- 
terfere with the full and free use of 
the street. See, also, 911, post. 

73 Castleberry v. City of Atlanta, 
74 Ga. 164; Wilson v. Simmons, 89 
Me. 242, 36 Atl. 380; Murray v. Nor- 
folk County, 149 Mass. 328, 21 N. E. 
757; Phifer v. Cox, 21 Ohio St. 248; 
Chase v. City of Oshkosh, 81 Wis. 
313, 51 N. W. 560, 15 L. R. A. 553. 
But see Clark v. Dasso, 34 Mich. 
86, where it is held that the law fa- 
vors the planting and preservation 
of shade trees in public streets 
when they do not constitute actual 
obstructions; that trees in the high- 
way are the property of the abut- 
ting owner and if they encroach 
upon the highway and must be re- 
moved, he has the right and must 
be afforded a reasonable oppor- 
tunity to transplant them as living 
trees elsewhere. See, also, as hold- 
ing the same, Stretch v. Village of 
Cassopolis, 125 Mich. 167, 84 N. W. 
51, 51 L. R. A. 345. 

Village of Lancaster v. Richard- 
son, 4 Lans. (N. Y.) 136; Town of 
Wheatfield v. Shasley, 23 Misc. 100, 
51 N. Y. Supp. 835. Shade trees 
lawfully planted in a highway can 
only be removed by an appropriate 
proceeding to condemn them with 
compensation to their owners. 

a?* Holtzman v. United States, 14 
App. D. C. 454; City of Boulder v. 



881 



ITS CONTROL AND USB. 



207T 



881. Criminal proceedings. 

Not only is the power commonly possessed by public authorities 
to effect a removal or abatement of obstructions and nuisances but 
the rights of the public are almost universally guarded in all 
states against the connivance or laxity of public officials by the 
passage of statutes which make the act of creating an obstruction 
or committing a nuisance a crime or a misdemeanor 9T5 and provide 



Niles, 9 Colo. 415; Michigan City v. 
Boeckling, 122 Ind. 39; Union R. 
Co. v. City of Cambridge, 93 Mass. 
(11 Allen) 287; Inhabitants of Clin- 
ton v. Welch, 166 Mass. 133, 43 N. 
E. 1116; Hubbard v. City of Con- 
cord, 35 N. H. 52; City of New 
York v. Brown, 27 Misc. 218, 57 N. 
Y. Supp. 742; Village of Carthate v. 
Frederick, 122 N. Y. 268, 25 N. E. 
480, 10 L. R. A. 178. 

975 Howard v. State, 47 Ark. 431, 
2 S. W. 331. A statutory proceed- 
ing is not necessarily an exclusive 
remedy. St. Louis A. & T. R. Co. 
v. State, 52 Ark. 51, 11 S. W. 1035. 
Obstructing a highway may be 
made a misdemeanor. State v. 
Holman, 29 Ark. 58. To obstruct a 
public highway is indictable at 
common law. Sweeney v. People, 
28 111. 208; Henline v. People, 81 
111. 269; State v. Baltimore O. & C. 
R. Co., 120 Ind. 298, 22 N. E. 307; 
State v. Kowolski, 96 Iowa, 346; 
Com. v. Wilkinson, 33 Mass. (16 
Pick.) 175; Vicksburg & M. R. Co. 
v. State, 64 Miss. 5, 8 So. 128. 
Miss. Code, 2871, contemplates a 
positive obstruction to a highway 
and not a mere omission to repair. 

State v. Bradley, 31 Mo. App. 
308; Beaudean v. City of Cape Gira- 
deau, 71 Mo. 392; Com. v. Capp, 48 
Pa. 53; State v. Louisville & N. R. 
Co., 91 Tenn. 445, 19 S. W. 229. A 



railroad is liable to indictment for 
obstructing a highway. Parsons v. 
State, 26 Tex. App. 192, 9 S. W. 
490. The obstructing must be will- 
ful, to constitute an offense. 
Crouch v. State, 39 Tex. Cr. Rep. 
145, 45 S. W. 578. That one acted 
on the advice of attorneys is no de- 
fense in a criminal prosecution for 
obstructing a road. Ward v. State, 
42 Tex. Cr. Rep. 435, 60 S. W. 757; 
Dyrley v. State (Tex. Cr. App.) 63 
S. W. 631. In a prosecution for ob- 
structing a road, the use of the 
word "willfully" is erroneous. 
State v. Troy & B. R. Co., 57 Vt. 
144; State v. Monongahela R. Co., 
37 W. Va. 108, 16 S. E. 519. A fail- 
ure to restore a highway, as re- 
quired by law, by one given the 
right to occupy it, is an indictable 
offense under Code, c. 43, sec. 45. 
State v. Dry Fork R. Co., 50 W. Va. 
235, 40 S. E. 447. It is not neces- 
sary in an indictment against a 
railroad company for obstructing a 
public highway to aver that it had 
no license to occupy the road. 

" State v. Lemay, 13 Ark. 405 ; 
Moll v. Town of Pickaway, 14 111. 
App. 343; State v. Hunter, 68 Iowa, 
447; Rankin v. State, 25 Tex. App. 
694, 8 S. W. 932. A penalty is nec- 
essary to the validity of a criminal 
statute relative to the obstruction: 
of a highway. 



2078 



PUBLIC PROPERTY. 



881 



penalties for a violation. 976 It is scarcely within the scope of this 
work to discuss at any length the principles of criminal law, but 
it can be said with reference to this particular question that the 
statute which creates the offense is to be strictly construed, 077 the 
indictment must conform to it, 078 the descriptions of a highway in 
an indictment or other formal paper should be precise, definite and 
certain, 979 and the character of the highway or public ground be 
established as a public one. 980 To constitute an offense in some 



977 Johnson v. State, 32 Ala. 583; 
Malone v. State, 51 Ala. 55; State 
v. Robinson, 52 Iowa, 228; People 
v. Young, 72 111. 411; Louisville & 
N. R. Co. v. Commonwealth, 16 Ky. 
L. R. 68, 26 S. W. 536; Com. v. Illi- 
nois Cent. R. Co., 20 Ky. L. R. 606, 
47 S. W. 258; Com. v. King, 54 
Mass. (13 Mete.) 115; State v. Ath- 
erton, 16 N. H. 203; Lydick v. 
State, 61 Neb. 309, 85 N. W. 70. 
Sufficiency of indictment construed. 
McClanahan v. State, 21 Tex. App. 
429, 2 S. W. 813; Guthrie v. State, 
23 Tex. App. 339, 4 S. W. 906; Wat- 
son v. State, 25 Tex. App. 651, 8 S. 
W. 817; Dyerle v. State (Tex. Cr. 
App.) 68 S. W. 174. But see State 
v. Turner, 21 Mo. App. 324. 

978 Hoadley v. People, 23 111. App. 
39; Jeffries v. McNamara, 49 Ind. 
142; State v. Middlesex & S. Trac- 
tion Co., 67 N. J. Law, 14, 50 Atl. 
354; Conner v. State, 21 Tex. App. 
176; State v. Roanoke R. & Lumber 
Co., 109 N. C. 860, 13 S. E. 719. 

979 Alexander v. State, 117 Ala. 
220, 23 So. 48; Patton v. State, 50 
Ark. 53,6 S.W. 227; State v. Lemay, 
13 Ark. 405; Palatka & I. R. R. Co. 
v. State, 23 Fla. 546, 3 So. 158. The 
allegation in an indictment is suffi- 
cient when it describes the road as 
"a common highway, in Putnam 
County, made and laid out for the 
people of this state to go, return 
and pass at their free pleasure and 



will, on foot, on horseback, and in 
vehicles." 

State v. Stewart, 66 Ind. 555; 
Varden v. Ritchie, 86 Mich. 197, 48 
N. W. 1085; State v. Pullen, 43 Mo. 
App. 620; Peterson v. Beha, 161 
Mo. 513, 62 S. W. 462. The same 
rule also applies to a judgment re- 
straining defendant from obstruct- 
ing a highway. State v. Crumpler, 
88 N. C. 647; State v. Roanoke R. & 
Lumber Co., 109 N. C. 860, 13 S. E. 
719; McClanahan v. State, 21 Tex. 
App. 429; Skinner v. State (Tex. 
Cr. App.) 65 S. W. 1073. A vari- 
ance, however, may be immaterial. 

Wilson v. Hull, 7 Utah, 90, 24 
Pac. 799. A decree restraining the 
obstruction of a road is not erro- 
neous because it merely describes 
the road as being "on the line or 
between two sections." But see 
State v. Finney, 99 Iowa, 43, 68 N. 
W. 568; Matthews v. State, 25 Ohio 
St. 536; State v. Hume, 12 Or. 133. 

980 United States v. Schwartz, 4 
Cranch, C. C. 160, Fed. Cas. No. 
16,237; State v. Trove, 1 Ind. App. 
553; State v. Dubuque & S. C. R. 
Co., 88 Iowa, 508; Gedge v. Com., 
72 Ky. (9 Bush) 61; State v. Bee- 
man, 35 Me. 242; State v. Price, 21 
Md. 449; People v. Jackson, 7 Mich. 
432; State v. Cunningham, 1 Mo. 
App. Rep'r, 361; State v. Proctor, 90 
Mo. 334, 2 S. W. 472; Golahar v. 
Gates, 20 Mo. 236; State v. Bald- 



882 



ITS CONTROL AND USB. 



2079 



states it is necessary that the act should have been willful. This 
condition is, in these cases, a necessary element, 081 but otherwise 
if the statutes do not so provide. 982 The evidence must conform 
to the indictment and the offense must be proven beyond a rea- 
sonable doubt. 983 

882. Public highways or grounds must be legally established 
or acquired. 

The power of the public authorities to remove obstructions or 
abate nuisances in public highways and grounds is limited not only 



ridge, 53 Mo. App. 415; State v. 
Craig, 79 Mo. App. 412; Illinois 
Cent. R. Co. v. State, 71 Miss. 253; 
State v. McDaniel, 53 N. C. (8 
Jones) 284; State v. Stewart, 91 N. 
C. 566; State v. Long, 94 N. C. 896; 
State v. Eastman, 109 N. C. 785, 13 
S. B. 1019. The public square of a 
county around and about the court 
house is a highway and one is in- 
dictable under Code, 2065, for ob- 
structing it. 

Commonwealth v. Dicken, 145 Pa. 
453, 22 Atl. 1043; State v. Floyd, 39 
S. C. 23; Anderson v. State, 29 
Tenn. (10 Humph.) 119; Michel v. 
State, 12 Tex. App. 108; Pierce v. 
State (Tex. Cr. App.) 22 S. W. 587; 
Ehilers v. State, 44 Tex. Cr. R. 156, 
69 S. W. 148; State v. Dry-Fork R. 
Co., 50 W. Va. 235, 40 S. E. 447. 
See cases in two following notes. 
See, also, cases under following 
section. 

98i Savannah F. & W. R. Co. v. 
State, 23 Fla. 579, -3 So. 204; Nich- 
ols v. State, 89 Ind. 298; State v. 
Teeters, 97 Iowa, 458, 66 N. W. 754. 
The word "willfully" denned as "in- 
tentionally." State v. Raypholtz, 
32 Kan. 450; Eagle Tp. Highway 
Com'rs v. Ely, 54 Mich. 173; Sneed 
v. State, 28 Tex. App. 56, 11 S. W. 
834; Shubert v. State, 16 Tex. App. 



645; Trice v. State, 17 Tex. App. 
43; Myers v. State (Tex.) 36 S. W. 
255; Lensing v. State (Tex. Cr. 
App.) 45 S. W. 572; Cornelieson v. 
State, 40 Tex. Cr. R. 159, 49 S. W. 
384; Karney v. State (Tex. Cr. 
App.) 62 S. W. 754; Murphy v. 
State, 23 Tex. App. 333; Bailey v. 
Com., 78 Va. 19; State v. Castle, 44 
Wis. 670. 

982 com. v. Switzer, 134 Pa. 383; 
Owen v. State, 24 Tex. App. 201, 5 
S. W. 830; Johnson v. State (Tex. 
App.) 14 S. W. 396; Meers v. State 
(Tex. App.) 16 S. W. 653; Baker v. 
State, 21 Tex. App. 264, 17 S. W. 
144. Definition of word willful. 
State v. Chesapeake & O. R. Co., 24 
W. Va. 809. 

ess state v. Dubuque & S. C. R. 
Co., 88 Iowa, 508, 55 N. W. 727; 
Illinois Cent. R. Co. v. Com., 104 
Ky. 362, 47 S. W. 255; State v. 
Pullen, 43 Mo. App. 620. A vari- 
ance if not material is no ground 
for reversal. State v. Weese, 67 
Mo. App. 466. An immaterial 
variance is not material. Murphy 
v. State, 23 Tex. App. 333, 4 S. W. 
906. Evidence which leaves the 
true location of a road in doubt 
will not support a conviction for 
willfully obstructing it. Brinkoe- 
ter v. State, 14 Tex. App. 67. 



2080 



PUBLIC PROPERTY. 



882 



by statutory restrictions or provisions, if these be found, but 
through the existence of the well known and recognized principle 
that to have jurisdiction it must be first established that the prop- 
erty over which an authority or power is sought to be exercised 
has been legally acquired and for the public uses and purposes 
urged. 984 It must affirmatively appear, therefore, to sustain pro- 
ceedings either criminal or civil in their character in respect to 
obstructions or nuisances in public highways or grounds, that 



98*Whaley v. Wilson, 120 Ala. 
502, 24 So. 855; Reed v. City of 
Birmingham, 92 Ala. 339; Shepherd 
v. Turner, 129 Gal. 530, 62 Pac. 106; 
People v. Goodin, 136 Cal. 455, 69 
Pac. 85; Patterson v. Munyan, 93 
Cal. 128, 29 Pac. 250; Town of Kent 
v. Pratt, 73 Conn. 573, 48 Atl. 418; 
Glaze v. Bogle, 97 Ga. 340, 22 S. B. 
969; Id., 105 Ga. 295, 31 S. B. 169; 
Carlisle v. Wilson, 110 Ga. 860, 36 
S. E. 54; Seeger v. Mueller, 133 111. 
86; Township of Whitley v. Lin- 
ville, 174 111. 579, 51 N. E. 832; City 
of Evansville v. Page, 23 Ind. 525; 
Zimmerman v. State, 4 Ind. App. 
583, 31 N. E. 550; Miller v. Porter, 
71 Ind. 521; Johns v. State, 104 Ind. 
557; Hamilton v. State, 106 Ind. 
361; Ewell v. Greenwood, 26 Iowa, 
377; State v. Ratliff, 32 Iowa, 189; 
State v. Schilb, 47 Iowa, 611; State 
v. Weimer, 64 Iowa, 243. 

Alma Tp. v. Kast, 37 Kan. 433, 15 
Pac. 585. The pleading should 
state facts sufficient to give juris- 
diction. Montana Tp. v. Ruark, 39 
Kan. 109, 18 Pac. 61; Gibbs v. Lar- 
rabee, 37 Me. 506; Richardson v. 
Davis, 91 Md. 390, 46 Atl. 964; Com. 
v. Carr, 143 Mass. 84; City of Big 
Rapids v. Comstock, 65 Mich. 78, 31 
N. W. 811; Gregory v. Stanton, 40 
Mich. 271; Village of Grandville v. 
Jenison, 84 Mich. 54, 47 N. W. 600; 
Gregory v. Knight, 50 Mich. 61; 
State v. Leslie, 30 Minn. 533. 



Village of Benson v. St. Paul, M. 
& M. R. Co., 62 Minn. 198, 64 N. W. 
393. The proof must sustain the 
allegation of the pleadings. State 
v. Gilbert, 73 Mo. 20; State v. Ram- 
sey, 76 Mo. 398; Village of Sterling 
v. Pearson, 25 Neb. 684, 41 N. W. 
653; Willey v. Town of Portsmouth, 
35 N. H. 303; Jersey City v. Na- 
tional Docks R. Co., 55 N. J. Law, 
194, 26 Atl. 145; Voorhees v. Bor- 
ough of Bound Brook, 55 N. J. Law, 
548, 26 Atl. 710; Newbold v. Taylor, 
46 N. J. Law, 133; People v. Hunt- 
ing, 39 Hun (N. Y.) 452; Christy v. 
Newton, 60 Barb. (N. Y.) 332; State 
v. Smith, 100 N. C. 550, 6 S. E. 251; 
State v. Whitaker, 66 N. C. 630. 

Com. v. McNaugher, 131 Pa. 55, 
18 Atl. 934. A street laid out by 
the state need not be used or ac- 
cepted by the public before one 
may be guilty of a nuisance in ob- 
structing it. Knowles v. District 
of Narragansett, 23 R. I. 339, 50 
Atl. 386; State v. Sartor, 2 Strob. 
(S. C.) 60; Baker v. Hogaboom, 12 
S. D. 405, 81 N. W. 730; Hill v. 
Hoffman (Tenn. Ch. App.) 58 S. W. 
929; Day v. State, 14 Tex. App. 26; 
Kennedy v. State (Tex. Cr. App.) 
40 S. W. 590; Grace v. Walker, 95 
Tex. 39, 64 S. W. 930, 65 S. W. 482, 
modifying (Tex. Civ. App.) 61 S. W. 
1103; Thurston County v. Walker, 
27 Wash. 500, 67 Pac. 1099. 



882 



ITS CONTROL AND USB. 



2081 



they have been legally acquired, laid out and established, the 
method is immaterial, and if this is not shown, the proceedings 
must fail. 985 



985 Jones v. Doherty, 17 App. Div. 
(N. Y.) 628; Alexander v. State, 
117 Ala. 220; Howard v. State, 47 
Ark. 431, 2 S. W. 331. Failure to 
give personal notice of time and 
place of various meetings affords 
no defense for one indicted for ob- 
structing a road. 

Cockrum v. Williamson, 53 Ark. 
131, 13 S. W. 592; Halliday v. 
Smith, 67 Ark. 310, 54 S. W. 970; 
Smith v. Talbot, 77 Cal. 16, 18 Pac. 
795; Smithers v. Fitch, 82 Cal. 153, 
22 Pac. 935; Peck v. Los Angeles 
County Sup'rs, 90 Cal. 384, 27 Pac. 
301; Freshour v. Hihn, 99 Cal. 443, 
34 Pac. 87; Shepherd v. Turner, 129 
Cal. 530, 62 Pac. 106; Bowden v. 
Adams, 22 Fla. 208; Clements v. 
Logan, 44 Ga. 30; Bryans v. Al- 
mand, 87 Ga. 564, 13 S. E. 554; 
Glaze v. Bogle, 97 Ga. 340. 

Willey v. People, 36 111. App. 609. 
To constitute a highway by dedica- 
tion, acceptance must be shown. 
Galbraith v. Littiech, 73 111. 209; 
Mclntyre v. Storey, 80 111. 127; Sal- 
ter v. People, 92 111. App. 481; State 
v. Birmingham, 74 Iowa, 407, 38 N. 
W. 121. Hearsay evidence not ad- 
missible. 

State v. Dubuque & S. C. R. Co., 
88 Iowa, 508, 55 N. W. 727; State v. 
Teeters, 97 Iowa, 458, 66 N. W. 
754; Commonwealth v. Abney, 20 
Ky. (4 T. B. Mon.) 477; State v. 
Lochte, 45 La. Ann. 1405, 14 So. 
215; Weed v. Sibley, 40 Me. 356; 
Bradford v. Hume, 90 Me. 233, 38 
Atl. 143; Village of Benson v. St. 
Paul, M. & M. R. Co., 62 Minn. 198; 
State v. Parsons, 53 Mo. App. 135; 
Peterson v. Beha, 161 Mo. 513, 62 
Abb. Corp. Vol. Ill 7. 



S. W. 462; Pavonia Land Ass'n v. 
Temfer (N. J. Eq.) 7 Atl. 423; New 
York & L. B. R. Co. v. Borough of 
South Amboy, 57 N. J. Law, 252, 30 
Atl. 628; Wiggins v. Tallmadge, 11 
Barb. (N. Y.) 457; Town of West 
Union v. Richey, 64 App. Div. 156, 
71 N. Y. Supp. 871; State v. Myers, 
20 Or. 442, 26 Pac. 307; Pittsburgh 
& A. Bridge Co. v. Com. (Pa.) 8 
Atl. 217; State v. Kendall, 54 S. C. 
192, 32 S. E. 300. The manner in 
which the highway is established is 
immaterial so long as it is a legal 
one. 

Hill v. Hoffman (Tenn. Ch. App.) 
58 S. W. 929; Laroe v. State, 30r 
Tex. Civ. App. 374, 17 S. W. 934; 
Baker v. State, 21 Tex. App. 264, 17 
S. W. 144; Ewing v. State (Tex. Cr. 
App.) 38 S. W. 618. On trial for 
obstructing a highway it need not 
be shown that notice of its laying 
out was given to the landowners.. 
McWhorter v. State, 43 Tex. 666. 
Character of evidence necessary. 

Lensing v. State (Tex. Cr. App.) 
45 S. W. 572. The manner in 
which the road may be established 
is immaterial. Cornelison v. State, 
40 Tex. Cr. R. 159, 49 S. W. 384. 
The material question is whether a 
road is in fact a public one. Hat- 
field v. State (Tex. Cr. App.) 67 S. 
W. 110; Bailey v. Com., 78 Va. 19. 
A road merely ordered to be 
opened but not actually opened is 
not a "road" within the meaning of 
the criminal laws relative to ob- 
structing roads. State v. Hcr- 
lacher, 16 Wash. 325, 47 Pac. 748. 
But see Campau v. Button, 33 Mich. 
525, which holds that the question; 



2082 PUBLIC PROPERTY 833, 884 

If public authorities proceed without jurisdiction in the above 
respect in the removal of supposed obstructions or abatement of 
alleged nuisances, they may render the corporation liable for their 
acts. 986 

883. Prescriptive rights. 

It has been suggested above that the power of public corpora- 
tions to preserve and protect property acquired by them for the 
use and benefit of the public either directly or as a trustee is a 
governmental and continuing one ; it cannot be lost by a failure to 
exercise it or an attempt to contract or bargain it away. This 
principle holds especially in respect to public highways and 
grounds, unless special statutory provisions limit or define the 
power. Prescriptive rights, therefore, cannot be acquired by pri- 
vate individuals through a continued obstruction or encroachment 
upon public property, 987 neither can the prescriptive right to com- 
mit a nuisance be acquired. 988 This question has been considered 
in a previous section where many cases are cited. 989 

884. Legalized obstructions. 

There are many uses of a highway and acts done by private 
individuals in respect to them which are not to be regarded as 

of legal existence of a highway can- interest in the public streets 

not be tried in proceedings under thereof, but holds them in trust for 

Michigan Statutes to remove ob- its citizens and the public gener- 

structions to highways. See, also, ally; and neither its acquiescence 

cases cited in preceding note. in an obstruction or private use of 

ass Barnes v. District of Colum- a street by a citizen, or laches in 
bia, 91 U. S. 540; Jones v. City of resorting to legal remedies to re- 
New Haven, 34 Conn. 14; Weed v. move it, nor the statute of limita- 
Greenwich Borough, 45 Conn. 170; tions, nor the doctrine of equitable 
Hildreth v. City of Lowell, 77 Mass. estoppel, nor prescription, can de- 
ill Gray) 349; Hawks v. Inhabit- feat the right of the city to main- 
ants of Charlemont, 107 Mass. 414; tain a suit in equity to remove the 
Attorney General v. Heishon, 18 N. obstruction." Jones v. Williams, 
J. Eq. (3 C. E. Green) 410; Conrad 70 Ga. 704; Sims v. City of Chatta- 
v. Village of Ithica, 16 N. Y. 158; nooga, 70 Tenn. (2 Lea) 694; State 
Lee v. Village of Sandy Hill, 40 N. v. Wertzel, 62 Wis. 184. But see 
Y. 442. City of Big Rapids v. Comstock, 65 

087 Webb v. City of Deruopolis, 95 Mich. 78. 

Ala. 116, 13 So. 289, 21 L. R. A. 62. ass State v. Holman, 29 Ark. 58. 

"A city or town has no alienable S9 See 824. 



885 ITS CONTROL AND USE. 2083 

o 

nuisances or obstructions where legislative authority has been ob- 
tained for the doing of the act or the particular use of property. 990 
Familiar illustrations of this rule are to be found in the occu- 
pation of highways by railroads, both steam and street, tele- 
graph and telephone lines, the law in respect to which has been 
considered in previous sections. 091 A legalized obstruction cannot 
be regarded as a nuisance provided the use or the act is one which 
can be lawfully authorized having in view the character of the 
public property, the purpose for which it is acquired and the supe- 
rior rights of the public in it. 992 It has already been suggested " 3 
in connection with this question that the use of public property or 
acts done in and upon it is to be considered both from the stand- 
point of its being an obstruction or a nuisance and of whether an 
abutting owner is not entitled to additional compensation for that 
use of public property. The question of a legal right to use and 
that of compensation on the part of the abutting owner are separ- 
ate and distinct. 

885. Abutter's rights. 

An abutter, it has been seen, is entitled to the easements of air, 
light and access to his property in addition to the rights which he 
may possess as a member of the community or as a revisionary 
proprietor. 994 An act or a use of a public highway or of public 
property may be considered as an obstruction or a nuisance from 
the standpoint of the abutter alone ; he will, therefore, be entitled 
to damages, removal or abatement without a consideration of the 
rights of the public authorities or other individuals. 995 

990 City of Denver v. Girard, 21 East Tennessee Tel. Co. v. City of 
Colo. 447; People v. City of New Russellville, 106 Ky. 667, 51 S. W. 
York, 20 Misc. 189, 45 N. Y. Supp. 308; Spokane St. R. Co. v. City of 
900; People v. Baltimore & O. R. Spokane Falls, 6 Wash. 521, 35 Pac. 
Co., 117 N. Y. 150; Hoey v. Gilroy, 1072. See 833 et seq., ante. 

129 N. Y. 132; Jorgensen v. Squires, 002 Town of Salt Creek v. High- 

144 N. Y. 280; Wormser v. Brown, way Com'rs, 25 111. App. 187; State 

149 N. Y. 163; Sullivan v. Webster, v. Edens, 85 N. C. 526. 

16 R. I. 33, 11 Atl. 771; Echols v. a3 See 820 et seq. 

State, 12 Tex. App. 615. y94 JLoberg v. Town of Aiunerst, 

991 City of Concord v. City of Bur- 87 Wis. 641. See 820 et seq., 
leigh, G7 N. II. 106; Delaware & A. ante, and 885, 888, post. 

Tel. Co. v. Committee of Pensauken wr ' Arkansas River Packet Co. v. 

Tp., 67 N. J. Law, 91, 50 Atl. 452; Sorrels, 50 Ark. 466, 8 S. W. 683; 



208J: 



PUBLIC PROPERTY. 



88S 



886. Use of public highways by agencies distributing water, 
power or light and furnishing telephone and telegraph 
or transportation services. 

Public highways and commons are acquired for public uses and 
primarily as a means of communication by ordinary methods or 
agencies. They belong to the public from side to side and from 
end to end, as declared by one authority, 996 and any private use 
granted to them is illegal. 397 Even the legislature is incapable of 
appropriating any portion to private persons or to devote them 



Helm v. McClure, 107 Cal. 199, 40 
Pac. 437; Jackson v. Kiel, 13 Colo. 
378, 22 Pac. 504, 6 L. R. A. 254; 
Johnson v. Stayton, 5 Har. (Del.) 
362; Brunswick & W. R. Co. v. 
Hardey, 112 Ga. 604, 37 S. E. 888, 
52 L. R. A. 396; Dantzer v. Indian- 
apolis Union R. Co., 141 Ind. 604, 
39 N. E. 223, 34 L. R. A. 679; Mar- 
tin v. Marks, 154 Ind. 549, 57 N. E. 
249; Miller v. Schenck, 78 Iowa, 
372, 43 N. W. 225; Platt v. Chicago, 
B. & I. R. Co., 74 Iowa, 127; Ot- 
tawa, O. C. & C. G. R. Co. v. Lar- 
son, 40 Kan. 301, 2 L. R. A. 59; 
Bannon v. Rohmeiser, 17 Ky. L. R. 
1378, 34 S. W. 1084, 35 S. W. 280; 
Bannon v. Murphy, 18 Ky. L. R. 
989, 38 S. W. 889; Walker v. Vicks- 
burg, S. & P. R. Co., 52 La. Ann. 
2036, 28 So. 324; Crook v. Pitcher, 
61 Md. 510; Adams v. Barry, 76 
Mass. (10 Gray) 361; Peterson v. 
Chicago & W. M. R. Co., 64 Mich. 
621; Wilder v. De Cou, 26 Minn. 
10; Brakken v. Minneapolis & St. 
L. R. Co., 29 Minn. 41; Sheedy v. 
Union Press Brick Works, 25 Mo. 
App. 527; New Orleans J. & G. N. 
K. Co. v. Moye, 39 Miss. 374; Lam- 
phier v. Worcester & N. R. Co., 33 
N. H. 495; Dewitt v. Van Schoayk, 
110 N. Y. 7, 17 N. E. 425; Adler v. 
Metropolitan El. R. Co., 46 N. Y. 
State Rep. 253, 18 N. Y. Supp. 858; 



Coatsworth v. Lehigh Val. R. Co., 
156 N. Y. 451, 51 N. E. 301; Fisher 
v. Farley, 23 Pa. 501; Daflinger v. 
Pittsburgh & A. Tel. Co., 31 Pittsb, 
Leg. J. (N. S.; Pa.) 37; Gorton v. 
Tiffany, 14 R. I. 95; Burkitt v. Bat- 
tle (Tenn. Ch. App.) 59 S. W. 429; 
Whittaker v. Ferguson, 16 Utah, 
240; Johnson v. Maxwell, 2 Wash. 
St. 482, 27 Pac. 1071; Carpenter v_ 
Mann, 17 Wis. 155. See, also, 
880, ante. 

98 Conner v. Town of New Al- 
bany, 1 Blackf. (Ind.) 43; State v. 
Berdetta, 73 Ind. 185; People v. 
Squire, 107 N. Y. 593; Brand v. 
Multnomah County, 38 Or. 79, 60" 
Pac. 390, 50 L. R. A. 389. See sees. 
423, 723, 797, and 837 et seq. See, 
also, Elliott, Roads & S. (2d Ed.) 
645 et seq. 

997 Pikes Peak Power Co. v. City 
of Colorado Springs, 105 Fed. 1; 
Florida Cent. & P. Co. v. Ocala St. 
& S. R. Co., 39 Fla. 306, 22 So. 692; 
Jaynes v. Omaha St. R. Co., 53 Neb. 
631, 74 N. W. 67, 39 L. R. A. 751; 
Metropolitan Teleg. & Tel. Co. v. 
Colwell Lead Co., 67 How. Pr. (N. 
Y.) 365; Forbes v. Rome, W. & O. 
R. Co., 121 N. Y. 505, 8 L. R. A. 
453; Kane v. New York El. R. Co., 
125 N. Y. 164, 26 N. E. 278, 11 L_ 
R. A. 640; American Rapid Tel. Co. 
v. Hess, 125 N. Y. 641, 26 N. E. 919, 



886 



ITS CONTROL AND USB. 



2085 



to a public use which is so exclusive as to deprive the public gen- 
erally of their rights. 998 The ordinary use to which public high- 
ways are put is travel or transportation of persons and property 
in movable vehicles. The growth of modern cities and the making 
of new inventions imposes naturally new burdens upon the public 
ways within their limits. The occupation of them for construct- 
ing sewers, laying pipes for the conveyance of water, gas and the 
like, and stringing wires for the transmission of light and power 
or as a means of communication, is not in accord with their origi- 
nal and true character as public ways but uses thrust upon them 
through the necessities of urban conditions 9 " which while it must 
be said are independent and secondary ones, yet, they are within 
the general purposes for which highways are designated. 1000 The 
necessities of an urban population require many conveniences 
which are either of a public or of a quasi public character and to 



13 L. R. A. 454; East Tennessee 
Tel. Co. v. Knoxville St. R. Co. 
(Tenn.) 3 Am. Electrical Cas. 406. 
But see People v. City of Rock Is- 
land, 215 111. 488, 74 N. E. 437. 

ass Kansas City, N. & D. R. Co. v. 
Cuykendall, 42 Kan. 234, 21 Pac. 
1051; Detroit City R. Co. v. Mills, 
85 Mich. 634, 48 N. W. 1007; People 
v. Ft. Wayne & E. R. Co., 92 Mich. 
522, 52 N. W. 1010, 16 L. R. A. 752; 
Lockwood v. Wabash R. Co., 122 
Mo. 86, 26 S. W. 698, 24 L. R. A. 
516. "The learned counsel urges 
with great force and plausibility 
that this railroad is a public use of 
the street, but it seems to us he 
ignores the fact that while the rail- 
road is a public carrier, it has no 
right to the exclusive use of a pub- 
lic street, and such for all practi- 
cable purposes is the effect of this 
ordinance and its use of this street. 
No case in this state is authority 
for such exclusive use of a high- 
way, and if it was we should not 
follow it. The company is a com- 
mon carrier, and entitled as such 



to collect tolls, but not the exclu- 
sive right to monoplize a public 
street and shut out the public and 
other carriers." 

999 Montgomery v. Santa Ana 
Westminster R. Co., 104 Cal. 186, 
37 Pac. 786, 25 L. R. A. 654. "In 
the case of streets in a city there 
are other and further uses, such as 
the construction of sewers and 
drains, laying of gas and water 
pipes, erection of telegraph and 
telephone wires, and a variety of 
other improvements, beneath, upon, 
and above the surface, to which in 
modern times urban streets have 
been subjected. These urban serv- 
itudes are essential to the enjoy- 
ment of streets in cities and to the 
comfort of citizens in their more 
densely populated limits." Detroit 
City R. Co. v. Mills, 85 Mich. 634, 
48 N. W. 1007. Dissenting opinion. 
Cater v. Northwestern Tel. Exch. 
Co., 60 Minn. 539, 63 N. W. Ill, 28 
L. R. A. 310. 

1000 State v. Cincinnati Gaslight 
& Coke Co., 18 Ohio St. 262. 



2086 PUBLIC PROPERTY. 887 

supply them requires the occupation, to some extent, of the public 
streets; 1001 a use which cannot be justified under the strict princi- 
ples of law relating to public highways but which is considered 
legal because of the conditions and reasons noted above. The 
occupation of highways by railroads both steam and street, tele- 
graph and telephone lines, has been already considered 1002 and the 
distribution of water and light will now be discussed. 

887. Control of highways by public authorities. 

Whatever the use to which public highways may be put and 
however authorized, it still remains true that they are created pri- 
marily as a means of travel that all other uses are subordinate, 1003 
and that the public authorities ever retain the right to control 
and regulate an occupation or use of them in such a manner as to 
best preserve them for the original purpose for which they were 
established. 1004 This control and regulation is vested in the 
state which has the unquestioned power of delegating directly or 
by implication the right of local regulation to inferior public 
agencies because these may be best fitted to accomplish the desired 

1001 Smith v. Metropolitan Gas- selves. The change evolves new 

light Co., 12 How. Pr. (N. Y.) 187; ways of doing things, new methods 

Taylor v. Portsmouth, K. & Y. St. of communication, new inventions 

R. Co., 91 Me. 193, 31 All. 560. for travel." Cater v. Northwestern 

"What servitude then does the pub- Tel. Exch. Co., 60 Minn. 539, 63 N. 

lie acquire by the taking of land W. Ill, 28 L. R. A. 310. Opinion 

for a public way? It is the right approved by three out of five 

of transit for travelers, on foot and judges two dissenting. Tuttle v. 

In vehicles of all descriptions. It Brush Elec. 111. Co., 50 N. Y. Super. 

is the right of transmitting intelli- Ct. (10 J. & S.) 464. 

gence by letter, message, or other 10 <>2 See 826 et seq., ante 

contrivance suited for communica- iocs state v. Murphy, 130 Mo. 10, 

tion, as by telegraph or telephone. 31 S. W. 594, 31 L. R. A. 798. See, 

It is the right to transmit water, also, cases cited note 1145 912, 

gas and sewage for the use of the post. 

public. It is a public use for the 1004 New Orleans Waterworks Co. 

convenience of the public, to be v. Rivers, 115 U. S. G74; City of 

moulded and applied as public ne- Brooklyn v. Fulton Municipal Gas 

cessity or convenience may de- Co., 7 Abb. N. C. (N. Y!) 19; Attor- 

mand and as the methods of life ney General v. Sheffield Gas Con- 

and communication may from time sumers Co., 22 Law J. Ch. 811. See 

to time require. Society changes 886, ante, and 912, post 
and new conditions attach them- 



887 



ITS CONTROL AND USE. 



2087 



result. The control of public highways in fact is almost univer- 
sally vested in local authorities. 1005 The entire subject of regula- 
tion and control is usually a matter of minute statutory provisions 
and these must be considered in determining the extent of rights 
granted or the character of regulatory provisions adopted by 
municipal authorities in respect to water, gas, or electric com- 
panies. 

Abutter's rights. The control of a highway by public authori- 
ties whether state or some other subordinate agency is not abso- 
lute but is limited in another respect in addition to those sug- 
gested in the preceding section, namely, the consideration of the 
rights of abutting owners. These, as already noted, are entitled 
to certain private easements of light, air and access to their prop- 
erty looe which are not dependent upon their title in the adjacent 
highway, 1007 and also to additional compensation for the use of 
that highway by any of the various agencies when, by the hold- 
ings of a particular state, that use or occupation is regarded as an 



1005 Sinton v. Ashbury, 41 Cal. 
525; Louisville Bagging Mfg. Co. v. 
Central Pass. R. Co., 95 Ky. 50; 
State v. Murphy, 130 Mo. 10, 31 L. 
R. A. 798; Eureka City" v. Wilson, 
15 Utah, 53, 48 Pac. 41. 

1000 Saginaw Gaslight Co. v. City 
of Saginaw, 28 Fed. 529; First Nat. 
Bank v. Tyson, 133 Ala. 459, 32 So. 
144, 59 L. R. A. 399; Smith v. South- 
ern Pac. R. Co., 146 Cal. 164, 79 
Pac. 868; Selden v. City of Jackson- 
ville, 28 Fla. 558, 10 So. 457, 14 L. 
R. A. 370; O'Brien v. Central Iron 
& Steel Co., 158 Ind. 218, 63 N. E. 
302, 57 L. R. A. 508; Long v. Wil- 
son, 119 Iowa, 267, 93 N. W. 282; 
City of Newport v. Newport Light 
Co., 11 Ky. L. R. 840, 12 S. W. 1040; 
Townsend v. Epstein, 93 Md. 537, 
49 Atl. 629, 52 L. R. A. 109; Nichols 
v. Ann Arbor & Y. St. R. Co., 87 
Mich. 361, 49 N. W. 538, 16 L. R. 
A. 371; Gaus & Sons Mfg. Co. v. St. 
Louis, K. & N. W. R. Co., 113 Mo. 
308, 20 S. W. 658, 18 L. R. A. 339; 



Sherlock v. Kansas City Belt R. 
Co., 142 Mo. 172, 43 S. W. 629; De 
Geofroy v. Merchants' Bridge Ter- 
minal R. Co., 179 Mo. 698, 79 S. W. 
386; Jaynes v. Omaha St. R. Co., 53 
Neb. 631, 74 N. W. 67, 39 L. R. A. 
751; Paige v. Schenectady R. Co., 
178 N. Y. 102, 70 N. E. 213; Brumit 
v. Virginia & S. W. R. Co., 106 
Tenn. 124, 60 S. W. 505; Parkers- 
burg Gas Co. v. Parkersburg, 30 W. 
Va. 435, 4 S. E. 650; Linden Land 
Co. v. Milwaukee Elec. R. & L. Co., 
107 Wis. 493, 83 N. W. 851; Wright 
v. Austin, 101 Am. St. Rep. 102, and 
monographic note. See 817 et 
seq., and 847, ante. 

1007 Town of Hazlehurst v. 
Mayes, 84 Miss. 7, 36 So. 433; De 
Geofroy v. Merchants' Bridge Ter- 
minal R. Co., 179 Mo. 698, 79 S. W. 
386; Graham v. Stern, 168 N. Y. 
517, 61 N. E. 891; Dooly Block v. 
Salt Lake Rapid Transit Co., 9 
Utah, 31, 33 Pac. 229, 24 L. R. A. 
610. 



2088 PUBLIC PROPERTY. 888 

additional burden or servitude upon their property. 1008 The char- 
acter of various uses of public highways as additional servitudes 
or otherwise, therefore, vary in different jurisdictions. 1009 A ser- 
vitude has been defined as a burden affecting property and rights 
and may arise through the use of a highway in a manner that was 
not anticipated or assumed at the time of its dedication as a pub- 
lic way, which is inconsistent with and subversive of its use as a 
highway and which necessarily varies with its character as an 
urban or a suburban way. 1010 The abutting owner may, therefore, 
be entitled to consideration either in respect to an impairment or 
destruction of his private rights or through the imposition of the 
additional burden and these rights must be regarded and dealt 
with before the public authorities or private agencies acting under 
lawful authority can legally occupy or use the streets for the pur- 
pose of furnishing any of the commodities or services that are now 
being considered. 

888. Use of highways for above purposes. 

Public highways may be used for the laying of gas and water 
pipes and the stringing of wires by electric companies for supply- 
ing light and power or by either the public corporation itself or a 
private person natural or artificial. 1011 The power of a public 
corporation to do any one or all of these things naturally involves 
a consideration of the legal right in its capacity as a public cor- 
poration. 1012 The right to supply on the part of the public cor- 
poration either water, light or miscellaneous service, involves a 
consideration of essentially identical principles, but no discrimina- 
tion will be made in the cases cited as to the particular question in 
dispute. The subject of the construction of drains and sewers 1013 

iocs Ryan v. Preston, 59 App. Div. purposes an additional burden. 

97, 69 N. Y. Supp. 100. Bicycle Brand v. Multnomah Co., 38 Or. 79, 

path not an additional servitude. 60 Pac. 390, 62 Pac. 209, 50 L. R. A. 

See 826 et seq., ante. 389. See, also, the general discus- 

1009 See 826 et seq., ante. sion as found in 806 et seq., ante, 

1010 Montgomery v. Santa Ana St. where the question is fully consid- 
R. Co., 104 Cal. 186, 25 L. R. A. 654; ered and many cases cited. 
Schopp v. City of St. Louis, 117 ion See 826 et seq., ante, and 
Mo. 131, 22 S. W. 898, 20 L. R. A. 896 et seq., post. 

783; State v. Laverack, 34 N. J. 1012 See 455 et seq., ante. 

Law, 201. Use of street for market "is See 437 et seq., ante. 



888 



ITS CONTROL AND USE. 



2089 



and the expenditure of public moneys in connection with the sup- 
ply of water 1014 have been fully considered in preceding sections 
and the authorities cited presently will relate more to the ques- 
tion of a supply of light. In connection with the legal power of a 
public corporation to furnish water, light or other service it has 
already been said 1015 that to govern and regulate efficiently and 
rightly requires complete disinterestedness, a condition which can- 
not exist where hope of gain or fear of loss are attendant essen- 
tials of certain acts or transactions, that it is the proper function 
of a public corporation to regulate and govern only and that it is 
neither desirable nor legal that it engage in undertakings which 
properly are not governmental and should be left, therefore, to 
private enterprise. Under an assumed exercise of the police 
power, municipal corporations have been authorized to supply 
water not only for its own uses but for those of private consum- 
ers. 1016 It scarcely seems possible to stretch the police power to the 
extent of authorizing a municipal corporation to supply private 
consumers with light or other service but this has been done in 
some cases. 1017 Their legal right to do so is questionable and not 



1014 See 455 et seq., ante. 
Ruckert v. Grand Avenue R. Co., 
163 Mo. 260, 63 S. W. 814. The 
condition may relate to the ascer- 
taining and payment of damages 
for the construction of the road to 
real and personal property located 
on the line. 

1015 See 455 et seq., ante. 

1016 city of Charlotte v. Shepard, 
120 N. C. 411, 27 S. B. 109; Smith 
v. City of Nashville, 88 Tenn. 464, 
12 S. W. 924, 7 L. R. A. 469. 

"Nothing should be of greater con- 
cern to a municipal corporation 
than the preservation of the good 
health of the inhabitants; nothing 
can be more conducive to that end 
than a regular and sufficient supply 
of wholesome water, which com- 
mon observation teaches all men 
can be furnished, in a populous 
city, only through the instrumen- 
tality of well equipped water 



works. Hence, for a city to meet 
such a demand is to perform a pub- 
lic act and confer a public bless- 
ing. It is not a strictly govern- 
mental or municipal function, 
which every municipality is under 
legal obligation to assume and per- 
form, but it is very close akin to it, 
and should always be recognized 
as within the scope of its author- 
ity, unless excluded by some posi- 
tive law." Ellinwood v. City of 
Reedsburg, 91 Wis. 131. See 455. 
1017 Thomson-Houston Elec. Co. 
v. City of Newton, 42 Fed. 723; 
Rushville Gas Co. v. City of Rush- 
ville, 121 Ind. 206, 23 N. E. 72, 6 
L. R. A. 315; City of Crawfordsville 
v. Braden, 130 Ind. 149, 28 N. E. 
849, 14 L. R. A. 268. "The corpora- 
tion (the state) possessing, as it 
does, the power to generate and 
distribute throughout its limits, 
electricity for the lighting of its 



2090 



PUBLIC PROPERTY. 



888 



desirable from any standpoint. If a municipal corporation is per- 
mitted to engage in the business of supplying water or light, it 
should be limited, from a legal standpoint, clearly to a supply of 
its own necessities. 1018 The question of the legal right to supply 
the needs of a public corporation to engage in the business gener- 
ally furnishing to private consumers a certain commodity, are 
radically distinct. In either case, the doctrine is well established 
that a municipal corporation in supplying itself and its inhabi- 
tants with water or light or contracting for these commodities is 
not exercising its governmental or legislative but its business or 
proprietary powers. 1019 



streets and other public places, we 
can see no good reason why it may 
not also, at the same time, furnish 
it to the inhabitants to light their 
residences and places of business. 
To do so is, in our opinion, a legiti- 
mate exercise of the police power 
for the preservation of property 
and health." 

State v. City of Hiawatha, 53 
Kan. 477, 36 Pac. 1119; Linn v. 
Borough of Chambersburg, 160 Pa. 
511, 28 Atl. 842, 25 L. R. A. 217; 
Mauldin v. City Council of Green- 
ville, 33 S. C. 1, 11 S. E. 434, 8 L. 
R. A. 291. But see In re Board of 
Rapid Transit R. Com'rs, 5 App. 
Div. 290, 39 N. Y. Supp. 750. Con- 
struing N. Y. Laws 1891, c. 4, as 
amended relative to construction of 
a street railway in N. Y. City at the 
public expense. 

1018 Norwich Gaslight Co. v. Nor- 
wich City Gas Co., 25 Conn. 19. 
"But it is no part of the duty of 
the government to provide the com- 
munity with lights in their dwell- 
ings, any more tham it is to provide 
them with the dwellings them- 
selves, or any part of the necessa- 
ries or luxuries which may be 
deemed important to the comfort 
or convenience of the community. 



And if it be assumed that there 
would be no impropriety in the 
lighting of the streets under the 
control and direction of the sover- 
eign power, this would be merely 
as a regulation of police, or an in- 
cident to the duty to provide safe 
and convenient ways." Spaulding 
v. Inhabitants of Peabody, 153 
Mass. 129, 26 N. E. 421, 10 L. R. A. 
397; Jersey City Gas Co. v. Dwight, 
29 N. J. Eq. (2 Stew.) 242; Mauldin 
v. City Council of Greenville, 33 S. 
C. 1, 11 S. E. 434, 8 L. R. A. 291. 

1019 Pike's Peak Power Co. v. City 
of Colorado Springs, 105 Fed. 1; 
Anoka Waterworks, Elec. Light & 
Power Co. v. City of Anoka, 109 
Fed. 580; San Francisco Gas Co. v. 
City of San Francisco, 9 Cal. 453; 
Norwich Gaslight Co. v. Norwich 
City Gas Co., 25 Conn. 19; City of 
Conyers v. Kirk, 78 Ga. 480, 3 S. E. 
42; City of Valparaiso v. Gardner, 
97 Ind. 1; Town of Gosport v. 
Pritchard, 156 Ind. 400, 59 N. E. 
1058; Gas Light & Coke Co. v. City 
of New Albany, 156 Ind. 406, 59 N. 
E. 176; Davenport Gaslight & Coke 
Co. v. City of Davenport, 13 Iowa, 
229; Bullmaster v. City of St. Jo- 
seph, 70 Mo. App. 60. A municipal 
corporation in operating an electric 



889 



ITS CONTROL AND "USE 



2091 



889. Legal right to supply light. 

The operation of a lighting plant involves complicated industrial 
operations including the purchase of raw material, the employ- 
ment of skilled workmen and the use of technical manufacturing 
processes constantly subject to improvement as well as the use of" 
complicated machinery. 1020 It involves not only the supply and 
distribution of the commodity but also its manufacture and the 
elements of profit and loss either because of these facts to a large 
extent and one not at all comparable with the furnishing the sup- 
ply of water. The legal right, however, seems to be recognized. 1021 
In some cases it is regarded as a duty under a proper exercise 
of the police power on the part of a municipal corporation to 
properly light its streets and public buildings in order both to 
protect lives and property. 1022 Where the further right is con- 
ceded of furnishing a supply of light to private consumers, it 
seems to be based not upon a consideration of the strict legal 
powers of a governmental agent but upon the necessities arising 
in a particular case and the greater convenience and freedom 
from interference in the use of highways, the result of where a 
supply of light to all consumers, both public and private, is fur- 



plant exercises the functions of a 
private corporation. Nebraska City 
v. Nebraska Hydraulic G. & C. Co., 
9 Neb. 339; Richmond County Gas- 
light Co. v. Town of Middletown, 
59 N. Y. 228; Western Sav. Fund 
Soc. v. City of Philadelphia, 31 Pa. 
175; City of Philadelphia v. Fox, 64 
Pa. 169; Baily v. City of Philadel- 
phia, 184 Pa. 594, 39 Atl. 494, 39 
L. R. A. 837; State v. Milwaukee 
Gaslisht Co., 29 Wis. 454. See, 
also, 455 et seq. 

1020 See 472, 474, ante. 

1021 Tuttle v. Brush Elec. 111. Co., 
50 N. Y. Super. Ct. (18 J. & S.) 464. 

102- New Orleans Gas Co. v. 
Louisiana Light Co., 115 U. S. 650; 
Hamilton Gaslight & Coke Co. v. 
Hamilton City, 146 U. S. 258, af- 
firming 37 Fed. 832; City of Craw- 
fordsville v. Braden, 130 Ind. 149, 



28 N. E. 849, 14 L. R. A. 268; Opin- 
ion of Justices, 150 Mass. 592, 24 
N. E. 1084, 8 L. R. A. 487; Citizens' 
Gas Light Co. v. Inhabitants of 
Wakefield, 161 Mass. 432, 37 N. E. 
444, 31 L. R. A. 457; Halsey v. 
Rapid Transit St. R. Co., 47 N. J. 
Eq. 380; Palmer v. Larchmont 
Elec. Light Co., 158 N. Y. 231, 52 
N. E. 1092, 43 L. R. A. 672; State v. 
City of Hamilton, 47 Ohio St. 52, 23 
N. E. 935; Wheeler v. City of Phila- 
delphia, 77 Pa. 338; Linn v. Cham- 
bersburg Borough, 160 Pa. 511, 28 
Atl. 842, 25 L. R. A. 217. But see 
Gaskins v. City of Atlanta, 73 Ga. 
746; City of Freeport v. Isbell, 83 
111. 440; Randall v. Eastern R. Co., 
106 Mass. 276; Lyon v. City of 
Cambridge, 136 Mass. 419; Baily v. 
City of Philadelphia, 184 Pa. 594, 
39 L. R. A. 837. 



-2092 PUBLIC PROPERTY. 890 

nished by one agency rather than two or more. 1023 A further ar- 
gument, if it is worthy of the name, is based upon the fact that a 
municipal corporation could scarcely be able to supply itself with 
light at a reasonable cost if it were restricted to furnishing its 
own needs. It is necessary, so it is claimed, in order to bring the 
ost to a reasonable basis, that the number of consumers be largely 
and relatively increased. 1024 The question of profit and loss does 
not, however, legally or properly determine the character of an 
act as a governmental duty or function. 

890. Direct authority necessary. 

The power to erect and operate a plant for either the supply of 
water or light is never included among the implied powers 
-belonging to a public corporation ; it must be expressly, positively 
and legally granted and in unmistakable terms; it cannot be infer- 
red from a general grant of power to provide for the safety, com- 
fort or welfare of the inhabitants of a particular locality. 10J5 The 
reason for this principle clearly appears from an application of 
the doctrine of limited powers to public corporations aud the 
questionable character of the legality of the exercise of such a 
power. The discussion of the character of public corporations as 
artificial persons of exceedingly limited and restricted powers 
will be remembered. 1020 A quotation from Judge Cooley may 
serve to emphasize the rule. 1027 " The municipalities must look to 
the state for such charters of government as the legislature shall 

loss Thomson Houston Elec. Co. N. W. 646, 38 L. R. A. 157; Slate v. 

v. City of Newton, 42 Fed. 723; City of Toledo, 48 Ohio St. 112, 26 

City of Crawfordsville v. Braden, N. E. 1061, 11 L. R. A. 729; Schenck 

130 Ind. 149, 14 L. R. A. 268; Mitch- v. Borough of Olyphant, 181 Pa. 

ell v. City of Negaunee, 113 Mich. 191; Townsend Gas & Elec. Co. v. 

359, 38 L. R. A. 157; Linn v. Cham- City of Port Townsend, 19 Wash, 

bersburg Borough, 160 Pa. 511, 25 407, 53 Pac. 551. 

L. R. A. 217; Black v. City of Ches- J^r. Village of Ladd v. Jones, 61 

ter, 175 Pa. 101, 34 All. 354; Smith 111. App. 584. See 897 and 924, 

v. City of Nashville, 88 Tenn. 464, post. 

7 L. R. A. 469. 102 c See 108-114 et seq., ante. 

1024 Fellows v. Walker, 39 Fed. 1027 Cooley, Const. Lim. (7th Ed.) 

651; Jacksonville Elec. Light Co. v. p. 265, citing many cases. See, 

City of Jacksonville, 36 Fla. 229, 18 also, the general discussion by 

So. 677, 30 L. R. A. 540; Mitchell v. Cooley of this subject commencing 

City of Negaunee, 113 Mich. 359, 71 on page 261. 



890 ITS CONTROL AND USE. 2093- 

see fit to provide; and they cannot prescribe for themselves the 
details, though they have a right to expect that those charters; 
will be granted with a recognition of the general principles with 
which we are familiar. The charter, or the general law under 
which they exercise their powers, is their constitution, in which 
they must be able to show authority for the acts they assume to 
perform. They have no inherent jurisdiction to make laws or 
adopt regulations of government; they are governments of enum- 
erated powers, acting by a delegated authority ; so that while the- 
state legislature may exercise such powers of government coming 
within a proper designation of legislative power as are not 
expressly or impliedly prohibited, the local authorities can exer- 
cise those only which are expressly or impliedly conferred, and 
subject to such regulations or restrictions as are annexed to the 
grant." The class of powers referred to above as those impliedly 
conferred are those which are absolutely indispensable to the 
exercise of granted powers ; not merely convenient or necessary to 
be exercised. 

Construction of authority. The universal doctrine prevails that 
the rule of strict construction applies to all statutes granting or 
attempting to grant powers to public corporations, especially 
municipal, and which involve the exercise of the power of tax- 
ation, 1028 the incurring of indebtedness, 1029 or the expenditure of 

1028 Townsend Gas & Elec. Co. v. subsequent legislation decreasing 
City of Port Townsend, 19 Wash. the amount of debt the city can in- 
407, 53 Pac. 551. See 300 et cur. Daniels v. Long, 111 Mich, 
seq., ante. 562; Kiichli v. Minnesota Brush 

1029 Heilbron v. City of Cuthbert, Elec. Co., 58 Minn. 418, 59 N. W, 
96 Ga. 312, 23 S. E. 206; Hay v. City 1088; Lynchburg & R. St. R. Co. v. 
of Springfield, 64 111. App. 671; Dameron, 95 Va. 545, 28 S. E. 951; 
City of Laporte v. Gamewell Fire Spilman v. City of Parkersburg, 35 
Alarm Tel. Co., 146 Ind. 466, 45 N. W. Va. 605, 14 S. E. 279; Ellinwood 
E. 588, 35 L. R. A. 686; Burlington v. City of Reedsburg, 91 Wis. 131. 
Water Co. v. Woodward, 49 Iowa, But see Fergus Falls Water Co. v. 
58. An option for the purchase of City of Fergus Falls, 65 Fed. 586, 
a water plant is not an "incurring where it is held that the grant of 
of indebtedness" within the consti- the power to contract for water- 
tutional limitation. Ludington Wa- works includes the right to pay for 
ter-Supply Co. v. City of Ludington, the same. State v. City of Great 
119 Mich. 480, 78 N. W. 558. A mu- Falls, 19 Mont. 518, 49 Pac. 15. 
nicipal grant for supplying water if See 140 et seq., ante. 

valid when made is not defeated by 



:2U9i 



PUBLIC PROPERTY. 



891 



public moneys. 1030 The reason for this rule has already been con- 
sidered in the previous sections cited. 1031 

891. Mode of establishing municipal plant. 

The grant of authority to public corporations to secure a supply 
of water and light either for their own needs or that of private 
consumers should prescribe in definite and certain language the 
mode in which the authority is to be exercised and this is usually 
found to be the case. 1032 These facilities may be authorized directly 
by the legislature which unquestionably has a very large degree 
of control over even local affairs, or the grant may be given by 
the legislature to particular corporations to be carried into effect, 
in these instances by either designated public officials or by them 
only after the affirmative action of voters at an election held in 
the manner and at the time prescribed. 1033 The manner of raising 
funds with which to carry out the enterprise should be left to the 
discretion of the taxpayers of a particular district upon whom the 
burden of taxation will fall. 

Power to purchase or erect. The existence of the authority to 
engage in the business of supplying water, light or other service 
is the essential condition and as a legal proposition it is immaterial 
whether the municipal corporation be given the right to erect its 
own plant or to purchase from private persons one already con- 



loso Ampt v. City of Cincinnati, 
56 Ohio St. 47, 46 N. E. 69, 35 L. R. 
A. 737. See 410-417, and 455 et 
seq., ante. 

io3i See, also, in addition to the 
cases referred to in the three pre- 
ceding notes the following: Jack- 
sonville Elec. Light Co. v. City of 
Jacksonville, 36 Fla. 229, 30 L. R. 
A. 540; City of Crawfordsville v. 
Braden, 130 Ind. 149, 14 L. R. A. 
268; Citizens' Gaslight Co. v. In- 
habitants of Wakefield, 161 Mass. 
432, 31 L. R. A. 457; Mitchell v. 
City of Negaunee, 113 Mich. 359, 38 
L. R. A. 157; Seitzinger v. Borough 
of Tamaqua, 187 Pa. 539, 41 Atl. 
454; Smith v. City of Nashville, 88 



Tenn. 464, 7 L. R. A. 469; Ellin- 
wood v. City of Reedsburg, 91 Wis. 
131, 64. N. W. 885. 

1032 See 455 et seq., ante. 

1033 city of Harrodsburg v. Har- 
rodsburg Water Co., 23 Ky. L. R. 
956, 64 S. W. 658. A water supply 
contract must be ratified by the 
voters of the city. Citizens Gas 
Light Co. of Reading v. Inhabitants 
of Wakefield, 161 Mass. 432, 37 N. 
E. 444, 31 L. R. A. 457; George v. 
Wyandotte Elec. Light Co., 105 
Mich. 1, 62 N. W. 985; Elyria Gas & 
Water Co. v. City of Elyria, 57 Ohio 
St. 374, 49 N. E. 335. See 455 et 
seq., ante 



892 ITS CONTROL AND USE. 2095 

structed and in operation. 1034 The point to be observed in connec- 
tion with the subject of this paragraph as well as all other sec- 
tions in which the subject is considered, is that the statutory 
authority is to be strictly construed and literally followed. 1035 

892. Operation of plant. 

A municipal corporation when it engages in the business of 
manufacturing and supplying light or furnishing water either to 
its own self or private consumers, as already stated, exercises its 
business or proprietary powers and it follows, therefore, that 
those rules of construction with reference to the making and 
enforcement of contracts which apply as between private individ- 
uals will also apply here. The corporation will be liable in the 
same manner as private individuals engaged in a similar business, 
for the manufacture and sale of light and the furnishing of water 
to private consumers is a private business in all its characteristics 
and essentials and does not pertain in any manner to any of the 
functions of government. The soundness of this proposition is 
apparent when the question of charges is considered. Without 
doubt the charge for the commodity furnished should be sufficient 
to not only pay the cost of operation, expensive as it may be, but 
also enable the public authorities to pay the interest charges 
resulting from the use of moneys in the construction of the plant, 
the expense of relaying or repairing pavements or improvements, 

1034 Long Island Water Supply A. 397. Decided before authority 
Co. v. City of Brooklyn, 166 U. S. expressly given. Citizens' Gaslight 
685. The condemnation of a water Co. v. Inhabitants of Wakefleld, 161 
supply system is within the un- Mass. 432, 31 L. R. A. 457; Hudson 
questioned limits of the power of Elec. Light Co. v. Inhabitants of 
eminent domain and the right is Hudson, 163 Mass. 346; City of St. 
not taken away by a contract for Louis v. St. Louis Gaslight Co., 70 
the supply of water by a private Mo. 69; Neosho City Water Co. v. 
company owning works during a City of Neosho, 136 Mo. 498, 38 S. 
term of years. Such a contract is W. 89. See, also, 932, post, 
property and, like any other prop- i 35 Citizens' Gas Light Co. of 
erty, may be taken under condem- Reading v. Inhabitants of Wake- 
nation proceedings for public use. field, 161 Mass. 432, 37 N. E. 444, 31 
City Council of Montgomery v. L. R. A. 457; Hudson Elec. Light 
Capital City Water Co., 92 Ala. 361, Co. v. Inhabitants of Hudson, 163 
9 So. 339; Spaulding v. Inhabitants Mass. 346, 40 N. E. 109. 
of Peabody, 153 Mass. 129, 10 L. R. 



2096 PUBLIC PROPERTY. 895 

injured or destroyed in the construction or operation of the plant, 
and a certain charge to cover its depreciation and which, in the 
course of time, as accumulated, will be sufficient to replace the 
machinery or such portions of it as may have become worn out. 103 * 
Charges including all of these items do not involve the making of 
a profit from the carrying on of the business. An interesting sug- 
gestion in this connection has been made by a recent author. 1037 
" Of course, if a plant is self-sustaining, and the municipality 
thereby gets its street and own light free of charge (as is usually 
the case), then an inequality necessarily arises among its inhab- 
itants; for those who use the gas necessarily pay a rate so high 
that it enables the municipality to supply its streets and its public 
buildings with light free of cost to itself, while those of its inhab- 
itants who do not use the gas contribute nothing towards the 
lighting of such streets and public buildings. The inequality may 
not be very great, and yet it will exist. The author does not recall 
any instance where this fact of inequality has been urged as a 
reason why statutes authorizing a municipality to furnish gas r 
light or water to private consumers are unconstitutional, or such 
an enterprise unauthorized." 

893. Rules and regulations. 

Public corporations legally operating plants of the character 
under consideration have unquestionably the right to make rea- 
sonable rules and regulations having in view the economical oper- 
ation of the business, the protection and preservation of the plant 
in all its parts and the collection of charges for the use of the 
commodity supplied. Many suggestions have been already made 
in previous sections. 1038 These rules and regulations may involve 
the compulsory use of meters, 1039 the collection of rates estab- 
lished, or the use of water in the absence of meters. 1040 

lose Hamilton v. Hamilton Gas- 575; Sheward v. Citizens' Water 

light Co., 11 Ohio Dec. 513; Smith Co., 90 Cal. 635, 27 Pac. 439; Hill v. 

v. City of Seattle, 25 Wash. 300, 65 Thompson, 48 N. Y. Super. Ct. (16 

Fac. 612. See authorities cited in J. & S.) 481: State v. Gosnell, 11& 

468 and 475, ante. Wis. 606, 93 N. W. 542, 61 L. R. A. 

IDS- Thornton, Oil & Gas, 515. 33. But see Smith v. Birmingham 

loss see 468, et seq. Water Works Co., 104 Ala. 315, 16 

1039 Sweeuy v. Bienville Water So. 123; Spring Valley Water 

Supply Co., 121 Ala. 454, 25 So. Works v. City of San Francisco, 82 



894-896 ITS CONTROL AND USE. 2097 

894. Other restrictions upon power to require and operate 
plants for the supply of water and light. 

In a preceding chapter 1041 a discussion of the power of a public 
corporation to incur indebtedness is to be found and the universal 
rule prevails that it is limited in this respect by both statutory 
and constitutional provisions. The existence of these restrictions 
may prevent a municipal or quasi public corporation from supply- 
ing water or light or both because of the condition that the constitu- 
tional limitation has already been reached and any further expen- 
diture will create an indebtedness in excess of statutory or con- 
stitutional limitations and which will, therefore, be void. This 
subject as well as the question of whether water or lighting con- 
tracts extending over a term of years is to be regarded as an 
indebtedness has already been considered. 1042 

895. Sale or lease of property. 

It might be said that the power to sell or lease a plant supplying 
water or light is co-extensive with the right to acquire and operate 
it ; that is, it is dependent upon the express grant of authority to 
such an end. The terms and mode of carrying out the transaction 
as prescribed by statute is to be strictly followed. 10 * 3 

896. Use of highways by private persons. 

Highways may be also occupied or used by private persons-, 
natural or artificial, in supplying the commodities under discus- 

Cal. 286, 22 Pac. 910, 1046, 6 L. R. works Co., 114 Wis. 487, 90 N. W. 

A. 756; Albert v. Davis, 49 Neb. 442; Shaw v. San Diego Water Co. 

579, 68 N. W. 945; Red Star Line S. (Cal.) 50 Pac. 693. 

S. Co. v. Jersey City, 45 N. J. Law, 1040 See 468 et seq., ante. 

246. The right to compel the Farnham, Waters, 163 et seq. 

use of meters is frequently de- i * 1 See chapter V, subd. III. 

pendent upon ordinance provisions. 1012 See 152 and 159, ante. 

See generally Birmingham Water 10*3 city of St. Louis v. Western 

Works Co. v. Truss, 135 Ala. 530, Union Tel. Co., 149 U. S. 465; Coun- 

33 So. 657; Wagner v. City of Rock oilmen of Frankfort v. Capital Gas 

Island, 146 111. 139, 34 N. E. 545, 21 & Elec. Light Co., 16 Ky. L. R. 780, 

L. R. A. 519, affirming 45 111. App. 29 S. W. 855; American Rapid Tel. 

444; Ladd v. City of Boston, 170 Co. v. Hess, 125 N. Y. 641, 26 N. E. 

Mass. 332, 49 N. E. 627, 40 L. R. A. 919, 13 L. R. A. 454; Thompson v. 

171; State v. Manitowoc Water- Nemeyer, 59 Ohio St. 486, 52 N. E. 
Abb. Corp. Vol. Ill 8. 



2098 



PUBLIC PROPERTY. 



896 



sion to either municipal corporations, private consumers, or 
both. 10 * 4 The nature of this right is not always clearly understood 
by the courts though this is without apparent reason. The per- 
mission to occupy the highways has been variously termed a fran- 
chise, lease, privilege, easement and contract. 1045 The weight of 
authority and as based upon the better reasoning holds that where 
permission is granted for the use of public highways or grounds 
to one legally capable of exercising it, a right is obtained in the 
nature of an easement or contract and of which the grantee can- 
not to be deprived illegally. 1046 There is created a contract obliga- 



1024; Pittsburgh Carbon Co. v. 
Philadelphia Co., 130 Pa. 438, 18 
All. 732; Baily v. City of Philadel- 
phia, 184 Pa. 594, 39 Atl. 494, 39 L. 
R. A. 837. 

1044 inhabitants of Falmouth v. 
Falmouth Water Co., 180 Mass. 325, 
62 N. E. 255. A water company 
may commence the construction of 
its plant before the issuance of its 
capital stock or bonds. See, gen- 
erally, cases cited under this and 
succeeding sections. 

io4 Jackson County Horse R. Co. 
v. Interstate Rapid Transit R. Co., 
24 Fed. 306; Chicago City R. Co. v. 
People, 73 111. 541; Crowder v. 
Town of Sullivan, 128 Ind. 486, 28 
N. E. 94, 13 L. R. A. 647. An ordi- 
nance granting an electric light 
company the right to use its streets 
without making it exclusive is a 
mere license. United Railways & 
Elec. Co. of Baltimore v. Hayes, 92 
Md. 490, 48 Atl. 364; Electric Const. 
'Co. v. Heffernan, 58 Hun, 605, 12 N. 
Y. Supp. 336. 

Central Crosstown R. Co. v. Met- 
ropolitan St. R. Co., 16 App. Div. 
229, 44 N. Y. Supp. 752. Consent 
is a mere license not a franchise. 
Brush Elec. Light Co. v. Jones 
Bros. Elec. Co., 5 Ohio Circ. R. 340. 
A franchise can only be acquired 



by express grant. Galveston City 
R. Co. v. Gulf City St. R. Co., 63 
Tex. 529. The right to occupy 
streets by a street railway com- 
pany is a mere license not a con- 
tract. City of Seattle v. Columbia 
& P. S. R. Co., 6 Wash. 379, 33 Pac. 
1048. A railroad franchise to o<J- 
cupy a street cannot, however, be 
destroyed by an arbitrary change 
in the grade of the streets. Thorn- 
ton, Oil & Gas, 469. 

1040 Levis v. City of Newton, 75 
Fed. 884; Southern R. Co. v. At- 
lanta Rapid-Transit Co., Ill Ga. 
679, 36 S. E. 873, 51 L. R. A. 125; 
City of Kankakee v. Kankakee Wa- 
ter Co., 38 111. App. 620; Metropoli- 
tan City R. Co. v. Chicago West 
Division Co., 87 111. 317. The right 
of a company operating a horse 
railway by contract with the city 
not to have a similar railway on 
certain streets is properly within 
the Eminent Domain Act, is sub- 
ject to condemnation thereunder 
and is no part of the franchise. 
City of Vincennes v. Citizens' Gas 
Light Co., 132 Ind. 114, 31 N. E. 
573, 16 L. R. A. 485; City of New 
Orleans v. Great Southern Telep. & 
Tel. Co., 40 La. Ann. 41; Rutland 
Elec. Light Co. v. Marble City 
Elec. Light Co., 65 Vt. 377, 26 Atl. 



896 



ITS CONTROL, AND USE. 



2099 



tion which is protected by the federal constitution 1047 and which 
is subject to all principles of law in respect to a change or altera- 
tion, amendment or revocation, that apply to ordinary con- 
tracts. 1048 There are some authorities which consider the right 



635, 20 L. R. A. 821. See, also, au- 
thorities cited generally in this sec- 
tion. 

Since writing the text included 
in 896 and just as volume three 
is going to press, the Supreme 
Court of the United States in the 
Chicago Traction Cases, so called, 
has held that a license or contract 
in respect to the occupation of 
streets by a street railroad com- 
pany is not to be confused or con- 
founded with the grant of a cor- 
porate franchise by the state and 
that a license to occupy streets does 
not necessarily follow the granting 
of a franchise to carry on the busi- 
ness of transportation by means of 
street railways thus sustaining 
the views as stated. The court say: 
"What then was conferred in the 
franchise granted by the state? It 
was the right to be a corporation 
for the period named and to ac- 
quire from the city the right to use 
the streets upon contract terms and 
conditions to be agreed upon." 

1047 New Orleans Gas Co. v. 
Louisiana Light Co., 115 U. S. 650; 
New Orleans Waterworks Co. v. 
Rivers, 115 U. S. 674; Louisville 
Gas Co. v. Citizens' Gas Co., 115 U. 
S. 685; City of Walla Walla v. 
Walla Walla Water Co., 172 U. S. 
1; Citizens' St. R. Co. v. City R. 
Co., 64 Fed. 647; Illinois Trust & 
Sav. Bank v. Arkansas City (C. C. 
A.) 76 Fed. 271', 34 L. R. A. 518; 
City of Knoxville v. Africa (C. C. 
A.) 77 Fed. 501; Cleveland City R. 
Co. v. City of Cleveland, 94 Fed. 
385; South West Missouri Light Co. 



v. City of Joplin, 101 Fed. 23; Id. 
113 Fed. 817; Little Falls Elec. & 
Water Co. v. City of Little Falls, 
102 Fed. 663; People v. Chicago 
West Div. R. Co., 18 111. App. 125; 
City of Belleville v. Citizens' Horse 
R. Co., 152 111. 171, 26 L. R. A. 681; 
City R. Co. v. Citizens' St. R. Co. 
(Ind.) 52 N. E. 157; East Louisiana 
R. Co. v. City of New Orleans, 46 
La. Ann. 526, 15 So. 157; Proprie- 
tors of Bridges v. Hoboken Land 
& Imp. Co., 13 N. J. Eq. 81; Theb- 
erath v. City of Newark, 57 N. J. 
Law, 309, 30 Atl. 528; Western 
Union Tel. Co. v. City of Syracuse, 
24 Misc. 338, 53 N. Y. Supp. 690; 
Lima Gas Co. v. City of Lima, 2 
Ohio Cir. Dec. 396. See 917, 919, 
926 and 928, post. 

1048 City of St. Louis v. Western 
Union Tel. Co., 148 U. S. 92; Los 
Angeles Water Co. v. City of Los 
Angeles, 88 Fed. 720, affirmed 177 
U. S. 558; People v. Suburban R. 
Co., 178 111. 594, 53 N. E. 349, 49 L. 
R. A. 650; Gas Light & Coke Co. v. 
City of New Albany, 156 Ind. 406, 
59 N. E. 176. Where it is provided 
by the license that the city council 
shall determine the quantity of gas 
to be used by the city, the city is 
under no obligation to continue its 
use. 

Lewick v. Glazier, 116 Mich. 493, 
74 N. W. 717. It is not necessary 
to the validity of a waterworks 
company privilege that the water 
be furnished to the entire village. 
Michigan Tel. Co. v. City of Ben- 
ton Harbor, 121 Mich. 512,80 N. W. 
386, 47 L. R. A. 104; Hudson Tel. 



2100 



PUBLIC PROPERTY. 



896 



as a franchise, but it does not seem to the author that the term 
is correctly and legally used in this connection. 1049 Public utility 
corporations are organized under authority of law and they are 
given solely through this act the power to carry out the purpose 
for which they are organized. The right to conduct a business or 
occupation or to exercise a privilege which does not belong to the 
citizens of a country generally of common right is regarded as a 
franchise and this is secured through the act of incorporation, not 
by the permission to exercise these privileges in a particular 
locality. An early case in the Supreme Court of the United 
States, 1050 defined franchises as " special privileges conferred by 
government upon individuals and which do not belong to the citi- 
zens of the country generally of common right." The right of 
pursuing a business, calling or trade, the conduct of which is not 
a common natural one because it cannot be prosecuted without the 
aid of a legal grant or franchise, strictly speaking, from the state, 
is distinct as a legal proposition from the granting of a license 
to exercise powers granted in a particular place. The fact that 
a municipality may refrain from granting permission to use its 
streets to a public utility corporation organized under the general 



Co. v. Jersey City, 49 N. J. Law, 
303; Roebling v. Trenton Pass. R. 
Co., 58 N. J. Law, 666, 33 L. R. A. 
129; Potter v. Collis, 19 App. Div. 
392, 46 N. Y. Supp. 471; Nicoll v. 
Sands, 131 N. Y. 19, 29 N. E. 818; 
Rutland Elec. Light Co. v. Marble 
City Elec. Light Co., 65 Vt. 377, 20 
L. R. A. 821; City of Burlington v. 
Burlington Traction Co., 70 Vt. 491, 
41 All. 514. But see Spring Valley 
Water-works Co. v. Schottler, 110 
U. S. 347. 

i49 Grand Rapids E. L. & P. Co. 
v. Grand Rapids J2. E. L. & F. G. 
Co., 33 Fed. 669. "It is also well 
settled that the right to use the 
streets and other public thorough- 
fares of a ciy for the purpose of 
placing therein or thereon pipes, 
ilium*, wires, and poles for the dis- 
tribution of gas, water, or electric 



lights for public and private use, is 
not an ordinary business in which 
any one may engage, but is a fran- 
chise belonging to the government, 
the privilege of exercising which 
can only be granted by the state or 
by the municipal government of 
the city, acting under legislative 
authority." Harrell v. Ellsworth, 17 
Ala. 576. The grant of a license 
to a toll bridge is a privilege in its 
nature strongly resembling a fran- 
chise granted by the state and in 
the general establishment must be 
governed by the same principles. 
People v. Deehan, 153 N. Y. 528, 47 
N. E. 787, reversing 11 App. Div. 
175, 42 N. Y. Supp. 1071; State v. 
Portage City Water Co., 107 Wis. 
441, 83 N. W. 697. 

1050 Bank of Augusta v. Earle, 15 
Pet. (U. S.) 519. 



896 



ITS CONTROL AND USE. 



2101 



laws for the purpose of manufacturing or supplying a certain 
commodity clearly does not deprive the corporation either of its 
existence or of its right to carry on the business for which it was 
organized wherever it may secure the desired permission. The 
absence of permission suspends merely the legal right to exercise 
a privilege in a particular place and municipal action in this 
respect whether negative or affirmative can have no other 
effect. 1051 In a Michigan case, 1052 it has been held that " the exer- 
cise of the power of using streets for laying gas pipes is rather an 
easement than a franchise, and a similar power is used as often 
for private drainage and other purposes as for other general 
purposes. It is a matter peculiarly local in its character, and 
which should always be to a reasonable extent under municipal 
supervision to prevent clashing among the many convenient uses 
to which ways must necessarily be subjected, for water, drainage 
and other urban needs. But the permission to lay these pipes 
does not differ in any respect from that required for laying rail- 
ways over land, or ditches through it. It is not a state franchise, 
but a mere grant of authority, which, whether coming from pri- 



1051 Chicago City R. Co. v. People, 
*73 111. 541. "Where a company is 
incorporated by the legislature, 
with power to construct, maintain 
and operate a railway of a city, 
upon the consent of the city, in 
such manner and upon such condi- 
tions as the city may impose, and 
the city, by ordinance, grants the 
privilege of constructing and oper- 
ating the same upon a certain 
street, the grant by the city is a 
mere license, and not a franchise. 
The franchise emanates from the 
state." Township of Plymouth v. 
Chestnut Hill & N. R. Co., 168 Pa. 
181, 32 Atl. 19. 

Nellis, St. Surface R. R. p. 55. 
""The franchises of a railroad cor- 
poration are rights or privileges 
which are essential to the opera- 
tion of the corporation, and without 
which its road and works would be 
of little value; such as the fran- 



chises to run cars, to take tolls, to 
appropriate earth and gravel for 
the bed of its road, or water for its 
engines, and the like. They are 
positive rights or privileges, with- 
out the possession of which the 
road of the company could not be 
successfully worked. There are 
certain other privileges, too, which 
are merely licenses, and not fran- 
chises, as where a corporation has 
a specific power to construct, main- 
tain, and operate a railroad in a 
city, subject however to the con- 
sent of the city, and in such man- 
ner and upon such conditions as 
the city may impose; if the city, by 
ordinance, grants the privilege of 
constructing and operating the 
railroad upon a certain street, the 
grant by the municipality is a mere 
license and not a franchise." 

ioo2 People v. Mutual Gaslight 
Co., 38 Mich. 154. 



2102 PUBLIC PROPERTY. 897 

vate owners, or public agents, rests in contract or license, and in 
nothing else." In New York it has been held, however, that the 
grant of the right to occupy highways is more than a mere license 
or privilege. 1053 That, as said in the case cited, "It is true that 
the franchise comes from the state but the act of the local authori- 
ties who represent the state by its permission and for the purpose 
constitutes the act upon which the law operates to create the fran- 
chise. ' ' 

897. Source of authority. 

The state is the ultimate and original source of power in respect 
to the establishment, maintenance, and use of highways. 1054 Any 
lawful permission, whatever it may be called, must proceed from 
the state legislature and the validity of grants is determined by 
the constitution and other tests applied to all legislation. 1055 
Special acts cannot be passed where the constitution forbids. 105 * 
The legislature can act in the granting of permission independ- 
ent of subordinate governmental agencies of the state 1057 though 
the tendency of later years which is well grounded in reason is 
for the state to confer upon local municipal authorities the right 
to represent and to act for it in the granting of permission for 
the occupation or use of the public highways. 1058 The power, how- 

1053 People v. Deehan, 153 N. Y. Ave. R. Co., 153 N. Y. 144, 47 N. E. 
528, 47 N. E. 787. 277, affg. 13 App. Div. 279, 43 N. Y. 

1054 city of Knoxville v. Africa Supp. 174; State v. Cincinnati Gas- 
(C. C. A.) 77 Fed. 501; Chesapeake light & Coke Co., 18 Ohio St. 262; 
& P. Tel. Co. v. Baltimore & O. Tel. Pennsylvania R. Co. v. Greensburg, 
Co., 66 Md. 399; Jersey City & B. J. & P. St. R. Co., 176 Pa. 559, 35 
R. Co. v. Jersey City & H. Horse R. Atl. 122, 36 L. R. A. 839; Allen v. 
Co., 20 N. J. Eq. (5 C. E. Green) Clausen, 114 Wis. 244, 90 N. W. 
61; Jersey City Gas Co. v. Dwight, 181; Joyce, Elec. Law, 143. 

29 N. J. Eq. (2 Stew.) 242; Barhite loor, Prince v. Crocker, 166 Mass. 

v. Home Tel. Co., 50 App. Div. 25, 347, 44 N. E. 446, 32 L. R. A. 610; 

63 N. Y. Supp. 659. A city has no City of Hannibal v. Missouri & K. 

rights in its streets which it can Tel. Co., 31 Mo. App. 23. 

sell to a telephone or telegraph iose Lewis v. Moore, 54 N. J. Law, 

company desiring to use them since 121, 22 Atl. 993. Act 1876 (Supp. 

their exclusive dominion resides Rev. 650) not void as special legis- 

properly In the state and the tele- lation. 

phone and telegraph companies are IOST Abbott v. City of Duluth, 104 

granted by laws of 1890, c. 566, Fed. 833. 

102, the right to use public streets loss city R. Co. v. Citizens' St. R. 

and highways. Beekman v. Third Co., 166 U. S. 557; Buckner v. Hart, 



897 



ITS CONTROL, AND USE. 



2103 



ever, when exercised by municipal or other subordinate public 
corporations, must be expressly granted or appear by indisputa- 
ble implication. 1059 The rule ordinarily obtains that a general 
grant of power to municipal corporations to light streets and pub- 
lic places will not authorize them to grant exclusive privileges or 



52 Fed. 835. Under the charter of 
New Orleans which provides that 
the common council shall have 
power to authorize the use of the 
streets for "horse and steam rail- 
roads" it can grant a franchise to 
an electric street railway. McHale 
v. Easton & B. Transit Co., 169 Pa 
416, 32 Atl. 461; City of Philadel- 
phia v. McManes, 175 Pa. 28, 34 Atl. 
331; Galveston & W. R. Co. v. City 
of Galveston, 90 Tex. 398, 39 S. W. 
96, 36 L. R. A. 33; Henderson v. 
Ogden City R. Co., 7 Utah, 199, 26 
Pac. 286. 

1059 Freeport Water Co. v. City of 
Freeport, 180 U. S. 587, affirming 
186 111. 179, 57 N. E. 862; Danville 
Water Co. v. City of Danville, 180 
U. S. 619, 21 Super. Ct. 505, affirm- 
ing 186 111. 326, 57 N E. 1129; City 
of Mobile v. Louisville & N. R. Co., 
124 Ala. 132, 26 So. 902; Hanson v. 
Hunter, 86 Iowa, 722, 53 N. W. 84, 
48 N. W. 1005; Burlington Water 
Works Co. v. City of Burlington, 43 
Kan. 725, 23 Pac. 1068; City of 
Louisville v. Bannon, 99 Ky. 74, 35 
S. W. 120; Farmer v. Myles, 106 La. 
333, 30 So. 858; New Orleans, C. & 
L. R. Co. v. City of New Orleans, 
44 La. Ann. 728, 748; North Balti- 
more Pass. R. Co. v. City of Balti- 
more, 75 Md. 247; East Jordan 
Lumber Co. v. Village of East Jor- 
dan, 100 Mich. 201, 58 N. W. 1012. 

Ludington Water Supply Co. v. 
City of Ludington, 119 Mich. 480, 78 
N. W. 558. Where a city can law- 
fully grant a license privilege to a 



water company and it permits the 
company to spend large sums of 
money in the construction of the 
plant it is estopped to deny its 
power in this respect on the ground 
that no actual resolution or ordi- 
nance was passed. Thompson v. 
Ocean City R. Co., 60 N. J. Law, 
74, 36 Atl. 1087; Domestic Teleg. & 
Tel. Co. v. City of Newark, 49 N. J. 
Law, 344; Camden Horse R. Co. v. 
West Jersey Traction Co., 58 N. J. 
Law, 102; West Jersey Traction 
Co. v. Shivers, 58 N. J. Law, 124; 
Attorney General v. City of New 
York, 10 N. Y. Super. Ct. (3 Duer) 
119; Davis v. City of New York, 14 
N. Y. 506; Beekman v. Third Ave. 
R. Co., 153 N. Y. 144, 47 N. E. 277; 
Parkhurst v. Capitol City R. Co., 23 
Or. 471, 32 Pac. 304; City of Nash- 
ville v. Hagan, 68 Tenn. (9 Baxt.) 
495; City of Houston v. Houston. 
City St. R. Co., 83 Tex. 548; Hen- 
derson v. Ogden City R. Co., 7 
Utah, 199. But see Levis v. City of 
Newton, 75 Fed. 884, where it is 
held that prior to Iowa Act April 
9th, 1888, cities of the second class 
had by virtue of the general grant 
to them of the authority to light 
streets and public places the power 
to grant franchises to use the 
streets for the construction and op- 
eration of lighting plants. Town of 
New Castle v. Lake Erie & W. R. 
Co., 155 Ind. 18, 57 N. E. 516. See, 
also, 924, post, and authorities 
cited. 



2104 



PUBLIC PROPERTY. 



898 



licenses to private persons to occupy and use public highways for 
the purpose of constructing and operating lighting plants. 1060 

898. Same subject continued. 

As a general rule, the control of highways is vested in the local 
authorities within whose jurisdiction they may be located. This 
is true as a matter of convenience and also because of the princi- 
ples of local self-government and regulation in respect to local af- 
fairs which so universally obtain. 1061 The action of local authori- 
ties, however, cannot create a lawful right contrary to the con- 
stitution or under an unconstitutional act 1062 or prevent a corpo- 
ration from exercising powers granted by the state in respect to 
particular localities where their action is not necessary. 10163 The 



1000 Saginaw Gaslight Co. v. City 
of Saginaw, 28 Fed. 529. 

loci Detroit City St. R. Co. v. City 
of Detroit (C. C. A.) 64 Fed. 628, 
26 L. R. A. 667; Illinois Trust & 
Sav. Bank v. Arkansas City (C. C. 
A.) 76 Fed. 271, 34 L. R. A. 518; 
Dickson v. Kewanee Elec. Light & 
Motor Co., 53 111. App. 379; Smith 
v. Indianapolis St. R. Co., 158 Ind. 
425, 63 N. E. 849; Attorney General 
ex rel., etc., v. Walworth Light & 
Power Co., 157 Mass. 86, 16 L. R. A. 
398; Citizens' Elec. Light & Power 
Co. v. Sands, 95 Mich. 551, 55 N. W. 
452, 20 L. R. A. 411; Wyandotte 
Elec. Light Co. v. City of Wyan- 
dotte, 124 Mich. 43, 82 N. W. 821; 
St. Louis & M. R. Co. v. City of 
Kirkwood, 159 Mo. 239, 60 S. W. 
110, 53 L. R. A. 300; State v. City 
of Plainfield, 54 N. J. Law, 526, 24 
Atl. 493; Grey v. New York & P. 
Traction Co., 56 N. J. Eq. 463. 

Smith v. Metropolitan Gaslight 
Co., 12 How. Pr. (N. Y.) 187. The 
right to grant permission to lay 
down gas pipes is not property of 
tfie municipal corporation within 
statutory provisions restricting the 
power of municipal authorities to 



dispose of city property. Palmer 
v. Larchmont Elec. Co., 158 N. Y. 
231, 52 N. E. 1092, 43 L. R. A. 672, 
rvg. 6 App. Div. 12, 39 N. Y. Supp. 
522. The necessity for light in a 
highway within an unincorporated 
town is to be determined by the 
town board and not by the court in 
ejectment by an abutting owner 
against the company. Thomas v. 
Inter-County St. R. Co., 167 Pa. 
120; Watson v. Fairmont & S. R. 
Co., 49 W. Va. 528, 39 S. E. 193; 
Allen v. Clausen, 114 Wis. 244, 90 
N. W. 181. 

io2 Hull Elec. Co. v. Ottawa Elec. 
Co., 14 Rap. Jud. Que. C. S. 124; 
City of Laporte v. Gamewell Fire 
Alarm Tel. Co., 146 Ind. 466, 45 N. 
E. 588, 35 L. R. A. 686; City of Han- 
nibal v. Missouri & K. Tel. Co., 31 
Mo. App. 23; City of Allentown v. 
Western Union Tel. Co., 148 Pa. 
117. 

ices Abbott v. City of Duluth, 104 
Fed. 833; Northwestern Tel. Exch. 
Co. v. City of Minneapolis, 81 Minn. 
140, 86 N. W. 69, 53 L. R. A. 175, 
affirming on rehearing 83 N. W. 
527. 



898 



ITS CONTROL AND USE. 



2105 



legislature may directly authorize public utility corporations to 
exercise all of their lawful powers and privileges within the limits 
of the state and independent of subordinate public corporations 
and irrespective of the fact that the power may have been already 
granted to them to control and regulate public highways within 
their limits. 1064 The question of municipal consent or the right 
of a municipality to act is one dependent upon the language of 
the statutes under which the private corporation is proceeding. 
It might be suggested, however, that the courts favor, in cases of 
doubt, the necessity of action by municipal authorities in respect 
to the use of streets over which they have control. 1065 

Federal acts relative to post roads. Congress has given, under 
the post roads Act, 1066 the right to construct, maintain and oper- 
ate lines of telegraph through or over any portion of the public 
domain of the United States over and along any military or post 
roads then existing or thereafter to be established as such, and 
over, under or across navigable streams or waters of the United 
States. Under this authority it is lawful for telegraph companies 
to avail themselves of the privileges granted without the con- 



1004 Abbott v. City of Duluth, 104 
Fed. 833; City of Atlanta v. Gate 
City Gaslight Co., 71 Ga. 106; Con- 
sumers' Gas Co. v. Huntsinger, 12 
Ind. App. 285, 40 N. E. 34; City 
of Louisville v. Louisville Water 
Co., 105 Ky. 754, 49 S. W. 766; 
St. Louis R. Co. v. South St. Louis 
R. Co., 72 Mo. 67; Jersey City 
Gas Co. v. Dwight, 29 N. J. Eq. (2 
Stew.) 242; Potter v. Collis, 19 App. 
Div. 392, 46 N. Y. Supp. 471; City 
of Memphis v. Memphis Water Co., 
52 Tenn. (5 Heisk.) 495; City of 
Montreal v. Standard Light & 
Power Co., 77 Law T. (N. S.) 115. 

iocs Missouri v. Murphy, 170 U. S. 
78; Detroit Citizens' St. R. Co. v. 
City of Detroit (C. C. A.) 64 Fed. 
628, 26 L. R. A. 667, reversing 56 
Fed. 867 and 60 Fed. 161; Louisville 
Trust Co. v. City of Cincinnati (C. 
C. A.) 76 Fed. 296; Philadelphia Co. 
v. Freeport Borough, 167 Pa. 279; 



City of Philadelphia v. River Front 
R. Co., 173 Pa. 334, 34 Atl. 60; City 
of Houston v. Houston City R. Co., 
83 Tex. 548, 19 S. W. 127. 

Joyce, Elec. Law, 353. "As a 
general rule, the control of the 
streets and highways is vested in 
the local governments, each of 
which may exercise such control 
and so regulate the use thereof in 
its own limits as will best subserve 
the interests of the particular com- 
munity. So, also, the legislative 
authority to use the streets for the 
purpose of telegraph, telephone, 
electric light or street railway lines 
is generally conditioned upon the 
consent of the local authorities hav- 
ing control of the street or high- 
ways upon which it is proposed to 
construct such lines." 

lose united States Rev. St. 
5263 et seq.; Act July 24th, 1866, c. 
230 (14 Stat. 221). 



2106 



PUBLIC PROPERTY. 



895 



current authority or action either of the state or the local authori- 
ties. The license, however, exists subject to reasonable regula- 
tion by local public authorities. The interstate commerce clause 
of the Federal Constitution operates as a restriction upon the 
rights of the latter in the respect named. The subject has been 
fully considered and in detail in a recent text book. 1007 

Local consent for grant of authority. Local or subordinate 
governmental agencies are each vested by the state with desig- 
nated powers in respect to the regulation, use or control of public 
property or public affairs within their respective limits and it 
follows that a grant or license for the use or occupation of the 
public highways for the construction and operation of water, 
light, power, telephone or telegraph plants to be valid must be 
secured from that public organization having jurisdiction. The 
consent of an official body proceeding without authority whether 
that of original power or as depending upon its territorial juris- 
diction clearly can confer no rights upon individuals or corpora- 
tions to carry on any of the occupations named. 1008 



ice? Joyce, Elec. Law, c. 4. 

ices Bradley v. Southern New 
England Tel. Co., 66 Conn. 559, 32 
L. R. A. 280; Trotier v. St. Louis, B. 
& S. R. Co., 180 111. 471, 54 N. E. 
487; Huffman v. State, 21 Ind. App. 
449, 52 N. E. 713; Consumers' Gas 
Trust Co. v. Huntsinger, 14 Ind. 
App. 156, 42 N. E. 640; Board of 
Com'rs of Hamilton County v. In- 
dianapolis Nat. Gas Co., 134 Ind. 
209, 33 N. E. 972; Chicago & C. T. 
R. Co. v. Whiting, H. & E. C. St. 
R. Co., 139 Ind. 297. County com- 
missioners. Drew v. Town of Gen- 
eva, 150 Ind. 662, 42 L. R. A. 814. 
Village trustees. Suburban Light 
& Power Co. v. Aldermen of Bos- 
ton, 153 Mass. 200, 10 L. R. A. 497. 
Town selectmen. Boston & M. R. 
Co. v. City of Portsmouth, 71 N. H. 
21, 51 Atl. 664; Bergen Traction Co. 
v. Ridgefield Tp. Committee (N. J. 
Eq.) 32 Atl. 754; Suburban Elec. 
Light & Power Co. v. Inhabitants of 



East Orange (N. J. Err. & App.) 44 
Atl. 628, affirming 41 Atl. 865; West 
Jersey Traction Co. v. Camden 
Horse R. Co., 53 N. J. Eq. 163, 35 
Atl. 49; Stockton v. Atlantic High- 
lands, R. B. & L. B. Elec. R. Co., 
53 N. J. Eq. 418, 32 Atl. 680; Bor- 
ough of Madison v. Morristown 
Gaslight Co., 65 N. J. Eq. 356, 54 
Atl. 439; Lewis v. Chosen Freehold- 
ers of Cumberland, 56 N. J. Law, 
416. County board of freeholders. 
Johnson v. Thomson-Houston Elec. 
Co., 54 Hun, 469, 7 N. Y. Supp. 716. 
Village trustees. Consumers' Gas 
& Elec. Co. v. Congress Spring Co. r 
39 N. Y. State Rep. 703, 15 N. Y. 
Supp. 624; Town of Wheatfield v. 
Tonawanda St. R. Co., 92 Hun, 460, 
36 N. Y. Supp. 744; Secor v. Village 
of Pelham Manor, 6 App. Div. 236, 
39 N. Y. Supp. 993. 

Village of Hempstead v. Bait 
Elec. Light Co., 9 App. Div. 48, 41 
N. Y. Supp. 124. Rights of village 



899 ITS CONTROL, AND USB. 2107 

899. Mode of grant. 

The state may grant permission for the occupation and use of 
public highways by either general laws or special acts where the 
latter are not prohibited by constitutional provisions. 1009 Where 
the consent of a municipality is necessary, it is usually secured 
by the passage of ordinances or resolutions or that which is the 
equivalent of local legislative action. 1070 The validity of the 



trustees to maintain an equitable 
action to restrain unlawful inter- 
ference with a village highway. 
City of New York v. Third Ave. R. 
Co., 117 N. Y. 646, 22 N. E. 755; 
Palmer v. Larchmont Elec. Co., 158 
N. Y. 231, 52 N. E. 1092, 43 L. R. A. 
672, reversing 6 App. Div. 12, 39 N. 
Y. Supp. 522; Ghee v. Northern 
Union Gas Co., 158 N. Y. 510, 53 N. 
E. 692; In re Rochester Elec. R. 
Co., 123 N. Y. 351, affirming 57 
Hun, 56, 10 N. Y. Supp. 379; Union 
St. R. Co. v. Hazleton & N. S. Elec. 
R. Co., 154 Pa. 422; Delaware 
County & P. Elec. R. Co. v. City of 
Philadelphia, 164 Pa. 457, 30 Atl. 
396; Pennsylvania R. Co. v. Mont- 
gomery County Pass. R. Co., 167 Pa. 
62, 31 Atl. 468, 27 L. R. A. 766. The 
consent of township supervisors 
must be also secured from them 
when acting together and in their 
official character. Rahn Tp. v. Ta- 
maqua & L. St. R. Co., 167 Pa. 84, 
31 Atl. 472; Galveston & W. R. Co. 
v. City of Galveston, 90 Tex. 398, 
39 S. W. 96, 36 L. R. A. 33. An 
attempt by a city to enforce a con- 
dition outside its jurisdiction will 
be futile. Norfolk R. & Light Co. 
v. Consolidated Turnpike Co., 100 
Va. 243, 40 S. E. 897; Western 
Union Tel. Co. v. Bullard, 65 Vt. 
634. Village officials. Schwede v. 
Hemrich Bros. Brewing Co., 29 
Wash. 21, 69 Pac. 362. 

1069 in re Portland R. Extension 



Co., 94 Me. 565, 48 Atl. 119. The 
law may provide for the determina- 
tion of a public necessity for the 
construction of a street railway. 

1070 Illinois Trust & Sav. Bank v. 
Arkansas City (C. C. A.) 76 Fed. 
271, 34 L. R. A. 518; City of Morris- 
town v. East Tennessee Tel. Co., 
115 Fed. 304; Eisenhuth v. Acker- 
son, 105 Cal. 87, 38 Pac. 530. Right 
to franchise dependent upon two- 
thirds vote of a town or city from 
which the right must emanate. 

Hall v. City of Cedar Rapids, 115 
Iowa, 199, 88 N. W. 448. Under 
Iowa Code, 955, which requires 
notice of an application for a fran- 
chise for the construction of water 
works, the terms of the franchise 
as proposed cannot be materially 
changed from the notice as origi- 
nally drawn, nor after the question 
has been submitted to a vote. In 
re Milbridge & C. Elec. R. Co., 96 
Me. 110, 51 Atl. 818; Suburban 
Light & Power Co. v. Aldermen of 
Boston, 153 Mass. 200, 10 L. R. A. 
497; State v. Cowgill & Hill Mill. 
Co., 156 Mo. 620, 57 S. W. 1008. 
The privilege granted by ordinance 
cannot be modified by resolution. 
Taylor v. City of Lambertville, 43 
N. J. Eq. 107, 10 Atl. 809. 

Camden Horse R. Co. v. West 
Jersey Traction Co., 58 N. J. Law, 
102, 32 Atl. 72. Authority to locate 
tracks of a traction company can. 
only be exercised by the city coun- 



2108 



PUBLIC PROPERTY. 



899 



grant under these circumstances will be determined by the 
legality of the affirmative action and the questions which are in- 
volved have been considered under the sections relating to legis- 
lative bodies and their proceedings. 1071 The affirmative action of 
voters may be required by law. 1072 



cil after the giving of notices as re- 
quired by Act of March 14th, 1893 
(Pamph. Laws, p. 302); Act May 
16th, 1894 (Pamph. Laws, p. 374) 
and granting a hearing to persons 
interested. See, also, as holding 
the same, Avon by-the-Sea Land & 
Imp. Co. v. Borough of Neptune 
City, 57 N. J. Law, 701, 32 Atl. 220, 
and as construing Act of March 
24th, 1890 (Pamph. Laws, p. 113) 
Suburban Elec. Light & Power Co. 
v. Inhabitants of East Orange (N. 
J. Eq.) 41 Atl. 865. 

Pennsylvania R. Co. v. Inhabit- 
ants of Hamilton Tp., 67 N. J. Law, 
477, 51 Atl. 926; West Jersey Trac- 
tion Co. v. Board of Public Works 
of City of Camden, 58 N. J. Law, 
536, 37 Atl. 578; Adamson v. Nas- 
sau Elec. R. Co., 68 N. Y. State Rep. 
851, 34 N. Y. Supp. 1073; Secor v. 
Village of Pelham Manor, 6 App. 
Div. 236, 39 N. Y. Supp. 993 ; Tuttle 
v. Brush Elec. 111. Co., 50 N. Y. 
Super. Ct. (18 J. & S.) 464; Hough 
v. Smith, 37 Misc. 363, 75 N. Y. 
Supp. 451; Morrow County 111. Co. 
v. Village of Mt. Gilead, 10 Ohio 
S. & C. P. Dec. 235; Watson v. Fair- 
mont & S. R. Co., 49 W. Va. 528, 
39 S. E. 193; Higgins v. Manhattan 
Elec. Light Co., Limited (N. Y.) 3 
Am. Electrical Cas. 167; City of St. 
Louis v. Western Union Tel. Co., 63 
Fed. 68, 5 Am. Electrical Cas. 50. 

io"i See 496 et seq., ante and 
567. Halsey v. Town of Lake 
View, 188 111. 540, 59 N. E. 234; 
State v. Omaha & C. B. R. & Bridge 
Co., 113 Iowa, 30, 84 N. W. 983, 52 



L. R. A. 315; Sullivan v. Bailey, 125 
Mich. 104, 83 N. W. 996; Van Reipen 
v. City of Jersey City (N. J.) 33 Atl. 
740. Where the power exists to 
contract for a water supply, the 
court can in passing upon it only 
determine whether there has been 
a violation of legal principles or a 
failure to comply with prescribed 
formalities. 

Borough of Brigantine v. Holland 
Trust Co. (N. J. Eq.) 35 Atl. 344; 
People's Gaslight Co. v. Jersey City, 
46 N. J. Law, 297; Moore v. West 
Jersey Traction Co., 62 N. J. Law, 
386, 41 Atl. 946. 

1072 Thomson Houston Elec. Co. 
v. City of Newton, 42 Fed. 723; 
Cartersville Improvement, Gas & 
Water Co. v. City of Cartersville, 

89 Ga. 683, 16 S. E. 25; Cartersville 
. Water-Works Co. v. City of Carters- 
ville, 89 Ga. 689, 16 S. E. 70; City 
of Keokuk v. Ft. Wayne Elec. Co., 

90 Iowa, 67, 57 N. W. 689; Hanson 
v. Hunter, 86 Iowa, 722, 48 N. W. 
1005, 53 N. W. 84; Mitchell v. City 
of Negaunee, 113 Mich. 359, 38 L. 
R. A. 157; Lamar Water & Elec. 
Light Co. v. City of Lamar (Mo.) 
26 S. W. 1025 ; Aurora Water Co. v. 
City of Aurora, 129 Mo. 540, 31 S. 
W. 946. An increase in the number 
ot hydrants need not be submitted 
to the voters for their approval. 
Childs v. Hillsborough Elec. Light 
& Power Co., 70 N. H. 318, 47 Atl. 
271; Squire v. Preston, 82 Hun, 88, 
31 N. Y. Supp. 174; In re Village of 
Le Roy, 23 Misc. 53, 50 N. Y. Supp. 
611; Mayo v. Town of Washington, 



900 



ITS CONTROL AND USE. 



2109' 



900. Grant subject to regulation. 

Whatever may be the mode by which one supplying water, 
light or a similar service to a community secures his legal right 
to do this, the grant is taken subject not only to a reserved right 
of regulation when expressly made, 1073 but also to the implied 
right of a public corporation to exercise the police power and to- 
maintain and protect public property in the condition and for the 
purpose for which originally acquired. 1074 The rules and regula- 
tions in this respect must be, however, reasonable, and must be 
obeyed by the company or individual. 1075 The law in this respect 
has been clearly stated in a recent decision of the Supreme Court. 



122 N. C. 5, 29 S. E. 343, 40 L. R. A. 
163. 

IOTS See, also, 912 et seq., post. 

1074 Railroad Commission Cases, 
116 U. S. 307. "This power of reg- 
ulation is a power of government, 
continuing in its nature; and if it 
can be bargained away at all, it can 
only be by words of positive grant, 
or something which is in law equiv- 
alent. If there is reasonable doubt, 
it must be resolved in favor of the 
existence of the power." City of 
St. Louis v. Western Union Tel. 
Co., 149 U. S. 465; Wabash R. Co. 
v. City of Defiance, 167 U. S. 88; 
Pikes Peak Power Co. v. City of 
Colorado Springs, 105 Fed. 1; Stein 
v. Bienville Water Supply Co., 34 
Fed. 145; City Council of Montgom- 
ery v. Capital City Water Co., 92 
Ala. 361, 9 So. 339; Appeal of Cen- 
tral R. & Elec. Co., 67 Conn. 197, 
35 Atl. 32; City of Quincy v. Bull, 
106 111. 337; City of Rushville v. 
Rushville Natural Gas Co., 132 Ind. 
575, 28 N. E. 853, 15 L. R. A. 321; 
Natick Gas Light Co. v. Inhabit- 
ants of Natick, 175 Mass. 246, 56 N. 
E. 292. A gas company is not en- 
titled to compensation for the ex- 
pense which it has incurred in tak- 



ing up and relaying its gas mains 
occasioned by a change in the 
grade of the street. City of West- 
port v. Mulholland, 84 Mo. App. 
319; State v. Inhabitants of Tren- 
ton, 53 N. J. Law, 132, 20 Atl. 1076, 
11 L. R. A. 410; Lewis v. Board of 
Chosen Freeholders of Cumberland, 
56 N. J. Law, 416, 28 Atl. 553; 
American Rapid Tel. Co. v. Hess, 
125 N. Y. 641, 26 N. E. 919, 13 L. 
R. A. 454; Frankford & P. Pass. 
R. Co. v. City of Philadelphia, 58 
Pa. 119; City of Knoxville v. Knox- 
ville Water Co., 107 Tenn. 647, 64 
S. W. 1075, 61 L. R. A. 888. Water 
rates may be regulated under an 
exercise of the police power of the 
city. 

1075 Pittsburg, Ft. W. & C. R. Co. 
v. City of Chicago, 159 111. 369, 42' 
N. E. 781; Michigan Tel. Co. v. City 
of Benton Harbor, 121 Mich. 512, 
80 N. W. 386, 47 L. R. A. 104; City 
of Kalamazoo v. Kalamazoo Heat, 
Light & Power Co., 124 Mich. 74, 
82 N. W. 811; Benton v. City of 
Elizabeth, 61 N. J. L. 693, 40 Atl. 
1132; Com. v. Warwick, 185 Pa. 
623, 40 Atl. 93; Appeal of City of 
Pittsburgh, 115 Pa. 4, 7 Atl. 778. 



2110 PUBLIC PROPERTY. g 900 

of the United States, 1070 where it was said in the opinion by 
Chief Justice Fuller: "If the company, as it asserted, possessed 
the right to place electric wires beneath the surface of the streets, 
that right was subject to such reasonable regulations as the city 
deemed best to make for the public safety and convenience, and 
the duty rested on the company to comply with them. If require- 
ments were exacted or duties imposed by the ordinances, which, 
if enforced, would have impaired the obligations of the company's 
contract, this did not relieve the company from offering to do 
those things which it was lawfully bound to do. The exemption 
of the company from requirements inconsistent with its charter 
could not operate to relieve it from submitting itself to such police 
regulations as the city might lawfully impose." They may be 
adopted after the passage of the original grant to occupy and use 
the highways if within the exercise of existing lawful powers. 1077 
The subject of regulation will be further considered in other sec- 
tions. 

Power of public corporation to change grade of highway or 
otherwise improve it. Any individual or corporation accepting a 
grant or license from a public corporation for the use of the pub- 
lic highways takes it subject to the continuing power of the 
corporation conferred upon it for the public benefit to grade and 
improve its highways. This power, as already stated, is not 
exhausted by its first exercise nor can it, in the absence of statu- 
tory authority, be bargained or ceded away. A licensee or 
grantee of the right under consideration is not entitled, there- 
fore, to compensation for any expense or damage which it may 
incur or suffer in taking up and relaying its pipes, mains, sub- 
ways, tracks, poles, wires or other portions of its plant and which 
may be occasioned by a change in the grade of the highway in 
which they have theretofore been placed or by any public im- 

1076 Missouri v. Murphy, 170 U. S. 798, 8 L. R. A. 497 ; City of Rush- 
78. ville v. Rushville Natural Gas Co.. 

1077 Hot Springs Elec. Light Co. 131 Ind. 575, 28 N. E. 853; City ot 
v. City of Hot Springs, 70 Ark. 300, Noblesville v. Noblesville Gas & 
67 S. W. 761. A regulation cannot Imp. Co., 157 Ind. 162, 60 N. E. 
he required which will in effect 1032; Traverse City Gas Co. v. Tra- 
change or abrogate the existing verse City, 130 Mich. 17, 89 N. W. 
contract. In re Johnston, 137 Cal. 574; City of Westport v. Mulhol- 
115, 69 Pac. 973; People v. Chicago land, 84 Mo. App. 319. See, also, 
Gas Trust Co., 130 111. 268, 22 N. E. cases cited in preceding note. 



901 



ITS CONTROL AND USE. 



2111 



provement which the public authorities may lawfully make, 1078 
but a municipal corporation is unquestionably liable for any in- 
jury to these appurtenances where it has been negligent in the 
making of street improvements. 1079 



901. Acceptance of the grant. 

There must be an acceptance of the grant whatever its source. 
The authorities are agreed upon this proposition. 1080 The accept- 
ance may be formal or informal in its character. In the latter 
case by acts and in the former by writing or by some designated 
mode. 1081 The grant must be accepted unconditionally and within 
the time designated if this is prescribed or within a reasonable 
time if no limit is fixed. 1082 An acceptance upon condition is gen- 
erally regarded as none, 1083 and an offer not accepted within a 
reasonable time may be withdrawn. Where doubt exists as to the 



IOTS National Water- Works Co. v. 
Kansas City, 28 Fed. 921; Pocatello 
Water Co. v. Standley, 7 Idaho, 155, 
1 Pac. 518; Belfast Water Co. v. 
City of Belfast, 92 Me. 52, 42 Atl. 
235, 47 L. R. A. 82; Jamaica Pond 
Aqueduct Co. v. Inhabitants of 
Brookline, 121 Mass. 5; Natick Gas 
Light Co. v. Inhabitants of Natick, 
175 Mass. 246, 56 N. E. 292; In re 
Deering, 93 N. Y. 361; Columbus 
Gaslight & Coke Co. v. City of Co- 
lumbus, 50 Ohio St. 65, 33 N. E. 292, 
19 L. R. A. 510; Roanoke Gas Co. 
v. City of Roanoke, 88 Va. 810. 
But see Parfitt v. Furguson, 159 N. 
Y. Ill, 53 N. E. 707. Where by 
contract a city may agree to reim- 
burse a gas company for all dam- 
ages caused by a change of grade. 
Id., 3 App. Div. 176, 38 N. Y. Supp. 
466. 

1079 Norwalk Gaslight Co. v. Bor- 
ough of Norwalk, 63 Conn. 495, 28 
Atl. 32; Brunswick Gas Light Co. 
v. Brunswick Village Corp., 92 Me. 
493, 43 Atl. 104; Gaslight & Coke 
Co. v. Vestry of St. Mary Abbotts, 



54 Law J. Q. B. 414; Driscoll v. 
Poplar Board of Works, 14 Times 
Law R. 99. 

loso Logansport R. Co. v. City of 
Logansport, 114 Fed. 688; City of 
Morristown v. East Tennessee Tel. 
Co., 115 Fed. 304; Peoples' Gas 
Light & Coke Co. v. Hale, 94 111. 
App. 406; Metropolitan Gas Co. v. 
Village of Hyde Park, 27 111. App. 
361; Tudor v. Chicago & S. S. 
Rapid Transit R. Co., 154 III. 129, 
39 N. E. 136. 

losi Illinois Trust & Sav. Bank v. 
Arkansas City (C. C. A.) 76 Fed. 
271, 34 L. R. A. 518; Metropolitan 
Gas Co. v. Village of Hyde Park, 
27 111. App. 361; City of Baxter 
Springs v. Baxter Springs Light & 
Power Co., 64 Kan. 591, 68 Pac. 63; 
Clarksburg Elec. Co. v. City of 
Clarksburg, 47 W. Va. 739, 35 S. E. 
994, 50 L. R. A. 142. 

1082 Poppleton v. Moores, 62 Neb. 
851, 88 N. W. 128. 

loss Allegheny v. Peoples' Natural 
Gas & Pipeage Co., 172 Pa. 632, 33 
Atl. 704. 



2112 



PUBLIC PROPERTY. 



902 



fact of acceptance, many courts have held that one will be pre- 
sumed where the grant is beneficial to the grantee. 

902. Construction of grant. 

Since the occupation of a highway by private persons for the- 
purpose of supplying water, light, telephone, transportation or 
telegraphic service, is a use of public property for private gain r 
the universal rule obtains that licenses, contracts or privileges, 
exclusive or otherwise, granted for these purposes are to be con- 
strued strictly. 1084 Courts are careful to see that public rights 
are guarded and that nothing passes beyond what has been fairly 
granted. This rule, however, is not applied to the extent of de- 
feating a grant when a more liberal one or one which has been 
acquiesced in for many years would enable the company to carry 
out the purpose for which it is organized and the powers it was 
reasonably intended should be exercised. 1085 No rule of construc- 



los* Butchers' Union Slaughter- 
house & L. S. L. Co. v. Crescent 
City Live-Stock Landing & S. H. 
Co., Ill U. S. 746; Central Transp. 
Co. v. Pullman's Palace Car Co., 139 
U. S. 24; Chicago General St. R. 
Co. v. Bllicott, 88 Fed. 941; South- 
ern Bell Tel. & T. Co. v. D'Alem- 
berete, 39 Fla. 25,21 So. 570; Louis- 
ville & P. R. Co. v. Louisville City 
R. Co., 63 Ky. (2 Duv.) 175; Vicks- 
burg, S. & P. R. Co. v. Town of 
Monroe, 48 La. Ann. 1102. The 
right of a railroad company to oc- 
cupy a street cannot be collaterally 
attacked by the city. Edison Elec. 
111. Co. v. Hooper, 85 Md. 110; City 
of St. Paul v. Chicago, M. & St. P. 
R. Co., 63 Minn. 330, 65 N. W. 649, 
34 L. R. A. 184; State v. Murphy, 
130 Mo. 10, 31 S. W. 594, 31 L. R. 
A. 798; Tallon v. City of Hoboken, 
60 N. J. Law, 212, 37 Atl. 895; Peo- 
ple v. Newton, 48 Hun, 477, 1 N. Y. 
Supp. 197; City of Utica v. Utica 
Tel. Co., 24 App. Div. 361, 48 N. Y. 
Supp. 916; Jones v. Erie & W. B. R. 



Co., 169 Pa. 333, 32 Atl. 535; In re 
Barre Water Co., 62 Vt. 27, 20 Atl. 
109, 9 L,. R. A. 195. See, also, 926, 
post. 

loss City of Los Angeles v. Los 
Angeles City Water Co., 177 U. S. 
558, affirming 88 Fed. 720; Buckner 
v. Hart, 52 Fed. 835; City of Los 
Angeles v. Los Angeles City Water 
Co., 124 Cal. 368, 57 Pac. 210, 571; 
City of Denver v. Denver City Ca- 
ble R. Co., 22 Colo. 565, 45 Pac. 
439; Western Pav. & Supply Co. v. 
Citizens' St. R. Co., 128 Ind. 525, 
26 N. E. 188, 10 L. R. A. 770; Con- 
sumers' Gas & Elec. Light Co. v. 
Congress Spring Co., 61 Hun, 133, 
15 N. Y. Supp. 624; Hudson River 
Tel. Co. v. Watervliet Turnpike & 
R. Co., 135 N. Y. 393, 17 L. R. A. 
674; Appeal of Pittsburgh, 115 Pa. 
4, 7 Atl. 778; Pittsburg & W. E. 
Pass. R. Co. v. Point Bridge Co., 
165 Pa. 37, 30 Atl. 511, 26 L. R. A. 
323. The words "any street or 
highway" in Act of May 14, 188& 
(P. L. 211), authorizing the con- 



903 ITS CONTROL AND USB. 2113 

tion is necessary where the language of the grant is definite and 
certain for, as courts have said, they construe and interpret in- 
struments and contracts, not make them. 1086 The strict rule has 
been well stated by a recent author. 1087 "Every public grant 
of property or of privileges or franchises, if ambiguous, is to be 
construed against the grantee and in favor of the public, be- 
cause an intention on the part of the government to grant to 
private persons or to a particular corporation, property or rights 
in which the whole public is interested, cannot be presumed, un- 
less unequivocally expressed, or necessarily to be implied in the 
terms of the grant and because the grant is supposed to be made 
at the solicitation of the grantee and to be drawn up by him or 
his agents and, therefore, the words are to be treated as those of 
the grantee." 

903. Same subject. 

The presumption of law, however, exists that a statute or ordin- 
ance is presumed to be valid both in respect to the power of the 
public body to pass or adopt it, its form or passage, and its sub- 
ject-matter, 1088 and the existence of this presumption shifts the 
burden of proof to the one attacking the validity of the law. In 

struction of street railways in- Orleans Gas Co. v. Louisiana Light 
eludes bridges as a part of said Co., 115 U. S. 650; Hamilton Gas- 
streets or highways. See, also, as light & Coke Co. v. Hamilton City, 
holding the same, Berks County v. 146 U. S. 258; Long Island Water 
Reading City Pass. R. Co., 167 Pa. Supply Co. v. City of Brooklyn, 166 
102, 31 Atl. 474, 663. U. S. 685, affirming 143 N. Y. 596, 

Taggart v. Newport St. R. Co., 38 N. E. 983, 26 L. R. A. 270; 

16 R. I. 668, 7 L. R. A. 205; City of Skaneateles Water-Works Co. v. 

Houston v. Houston City St. R. Co., Village of Skaneateles, 184 U. S. 

83 Tex. 548, 19 S. W. 127; Gray v. 354, affirming 161 N. Y. 154, 55 N. E. 

Dallas Terminal R. & Union Depot 562, 46 L. R. A. 687; Colby Univer- 

Co., 13 Tex. Civ. App. 158, 36 S. W. sity v. Village of Canandaigua, 69 

252. An ordinance granting a Fed. 671; Ft. Plain Bridge Co. v. 

street railway license indefinite as Smith, 30 N. Y. 44; Syracuse Water 

to some streets is not void as to Co. v. City of Syracuse, 116 N. Y 

other streets clearly specified. Og- 167, 22 N. E. 381, 5 L. R. A. 546; 

den City R. Co. v. Ogden City, 7 Warsaw Water Works Co. v. Vil- 

Utah, 207, 26 Pac. 288. Joyce, Elec. lage of Warsaw, 161 N. Y. 176, 55 

Law, 165 et seq. N. E. 486. 

"so Postal Tel. Cable Co. v. Nor- ioss Lewis, Sutherland, Stat. 

folk & W. R. Co., 88 Va. 920. Const. (2d Ed.) 499 et seq. 

, Elec. Law, 163. New 
Abb. Corp. Vol. Ill 9. 



2114 PUBLIC PROPERTY. 904 

the making of a grant the rule also is true that every word used 
is supposed to have some clear and definite meaning. The burden 
of proof is again,therefore, because of this presumption, upon the 
one attacking the meaning or uncertainty of words used in a 
grant. 

904. Exercise of the grant; the element of time. 

In determining the right of the grantee of a privilege or license 
to occupy public highways in respect to the element of time, the 
principle obtains that because of the nature of the license, namely, 
a, use of public' property, for private profit, the grantee is limited 
strictly in the exercise of his rights to the time named in the 
grant and this rule applies both to the time of commencement and 
the termination of the privilege. 1089 Acts of a grantee before or 
after these periods are unlawful and can lead to the establishment 
of no rights as between the parties in respect to the granting of 
the license itself. 1090 The question has been raised of the legal 
power of a municipal corporation to make a contract or grant a 
license extending over a period in excess of the official term of 
that legislative body granting the privilege or the license for the 
reason that all legislative bodies are limited in their legal capacity 
in such a manner as not to deprive succeeding bodies of the right 
to deal with matters involving the same questions as they may 
arise- from time to time in the future and as the then present ex- 

1089 Detroit Citizens' Street Ry. City Council of Montgomery, 87 Ala. 
Co. v. City of Detroit (C. C. A.) 64 245, 6 So. 113, 4 L. R. A. 616; South- 
Fed. 628, 26 L. R. A. 667, reversing em California R. Co. v. Southern 
56 Fed. 867, and 60 Fed. 161. Louis- Pac. R. Co. (Cal.) 43 Pac. 1123; 
ville Trust Co. v. City of Cincinnati Cedar Rapids Water Co. v. City of 
(C. C. A.) 76 Fed. 296; Gas Light Cedar Rapids, 118 Iowa, 234, 91 N. 
& Coke Co. v. City of New Albany, W. 1081. A water company is en- 
156 Ind. 406, 59 N. E. 176; State v. titled to remain in possession of 
Lake, 8 Nev. 276; Blaschko v. Wur- streets for its pipes and connec- 
ster, 156 N. Y. 437, 51 N. E. 303. tions for such reasonable time as 
A grant of rights in a street made may be necessary to negotiate with 
by municipal authorities in excess the city for an extension of its lines 
of the period allowed by general or close out its business without 
statute is not good even for the lat- unnecessary sacrifice. See, also, 
ter time. Cincinnati Inclined Plane National Water- Works Co. v. Kan- 
R. Co. v. City of Cincinnati, 52 Ohio sas City (C. C. A.) 62 Fed. 853, 27 
St. 609, 44 N. E. 327. L. R. A. 827. 

IODO Montgomery Gas-Light Co. v. 



904: 



ITS CONTROL AND USE. 



2115 



igencies may require. 1091 Cases will be found upon this question 
both for 1092 and against the contention as stated. The weight of 
authority sustains the doctrine that contracts, privileges or 
license rights exclusive or otherwise, may be granted by a legis- 
lative body to be exercised for a reasonable time or one authorized 
by law in the future and in excess of the legislative life of a gov- 
erning body. 1003 The Supreme Court of the United States in a 



1091 city of New York v. Second 
Ave. R. Co., 32 N. Y. 261. See, 
also, cases cited in two following 
notes. 

loos Jackson County Horse R. Co. 
v. Interstate Rapid Transit R. Co., 
24 Fed. 306; Hall v. City of Cedar 
Rapids, 115 Iowa, 199, 88 N. W. 448; 
Richmond County Gaslight Co. v. 
Town of Middletown, 59 N. Y. 228; 
City of Brenham v. Water Co., 67 
Tex. 542, 4 S. W. 143; Altgelt v. 
City of San Antonio, 81 Tex. 436, 17 
S. W. 75, 13 L. R. A. 383. Eddy, 
Combinations, 26. Some cases, 
holding contracts for a term of 
years invalid, base their decision 
upon the fact that they were exclu- 
sive; these of course are not au- 
thority under the text. See the fol- 
lowing cases: Long v. City of Du- 
luth, 49 Minn. 280, 51 N. W. 915; 
Davenport v. Kleinschmidt, 6 Mont. 
502, 13 Pac. 249; City of Brenham 
v. Water Co., 67 Tex. 542, 4 S. W. 
143. 

1093 New Orleans Gas Co. v. 
Louisiana Light Co., 115 U. S. 650; 
Freeport Water Co. v. City of Free- 
port, 180 U. S. 587, affirming 186 
111. 179, 57 N. E. 862. A contract 
giving a water company, under 111. 
Act of April 9th, 1872, the power to 
charge certain rates for thirty 
years without interference consid- 
ered. Danville Water Co. v. City 
of Danville, 180 U. S. 619, affirming 
186 111. 326, 57 N. E. 1129; Fergus 



Falls Water Co. v. City of Fergus 
Falls, 65 Fed. 586; Illinois Trust & 
Sav. Bank v. Arkansas City (C. C. 
A.) 76 Fed. 271, 34 L. R. A. 518; 
Little Falls Elec. & Water Co. v. 
City of Little Falls, 102 Fed. 663. 
Thirty years held not an unreason- 
able length of time. 

City of Denver v. Hubbard, 17 
Colo. App. 346, 68 Pac. 993. A con- 
tract for furnishing light for a pe- 
riod of ten years is not invalid as 
extending for an unreasonable 
length of time. City of Carlyle v. 
Carlyle Water, Light & Power Co., 
52 111. App. 577; Carlyle Water, 
Light & Power Co. v. City of Carl- 
yle, 31 111. App. 325. A city may 
contract for a supply of water for a 
public use for a period not exceed- 
ing thirty years but cannot contract 
in respect to a certain price during 
the time fixed. Gas Light & Coke 
Co. v. City of New Albany, 156 Ind. 
406, 59 N. E. 176. Where a city 
council is limited by statute to con- 
tract for lighting a period not ex- 
tending ten years, a contract for a 
longer period is wholly void and 
not good even for the period of ten 
years. 

City of Indianapolis v. Indian- 
apolis Gaslight & Coke Co., 66 Ind. 
296; City of Valparaiso v. Gardner, 
97 Ind. 1. Twenty-year contract 
sustained. The court saJd: "The 
power to execute a contract for 
goods, for houses, for gas, for water 



2116 



PUBLIC PROPERTY. 



904 



and the like, Is neither a judicial 
nor a legislative power, but is a 
purely business power." 

Crowder v. Town of Sullivan, 128 
Ind. 486, 13 L. R. A. 647. "If mu- 
nicipal corporations cannot con- 
tract for a long period of time for 
such things as light or water, the 
result would be disastrous, for it is 
matter of common knowledge that 
it requires a large outlay of money 
to provide machinery and appli- 
ances for supplying towns and cit- 
ies with light and water, and that 
no one will incur the necessary ex- 
pense for such machinery and ap- 
pliances if only short periods are 
allowed to be provided for by con- 
tract. The courts cannot presume 
that the legislature meant to so 
cripple the municipalities of the 
state as to prevent them from se- 
curing light upon reasonable terms, 
and in the ordinary mode in which 
such a thing as electric light or gas 
is obtained." 

City of Vincennes v. Citizens' 
Gaslight Co., 132 Ind. 114, 31 N. E. 
573, 16 L. R. A. 485. It was held 
m this case that twenty-five years 
is not an unreasonable length of 
time for a city to bind itself for a 
supply of light or water. "The 
making of contracts for the supply 
of gas or water is a matter dele- 
gated to the governing powers of 
municipalities, to oe exercised ac- 
cording to their own discretion; 
and, in the absence of fraud, while 
acting within the authority dele- 
gated to them, their action is not 
subject to review by the courts. 
The length of time for which they 
shall bind their towns or cities de- 
pends upon so many circumstances 
and conditions as to situation, cost 
of supply and future prospects, that 
the courts can interfere only In ex- 



treme cases and upon seasonable 
application. We cannot say that 
twenty-five years is an unreason- 
able time for which to contract for 
a supply of light or water. Im- 
provements made in the methods 
and cost of street lighting have in 
many instances rendered contracts 
that were fair and equitable when 
made seem now to be grinding 
and oppressive." Columbus Water- 
Works Co. v. City of Columbus, 48 
Kan. 99, 28 Pac. 1097, 15 L. R. A. 
354; New Orleans Gas-Light Co. v. 
City of New Orleans, 42 La. Ann. 
188, 7 So. 559; Commissioners on 
Inland Fisheries v. Holyoke Water 
Power Co., 104 Mass., 446; Adrian 
Water Works Co. v. City of Adrian, 
64 Mich. 584, 31 N. W. 529; Sullivan 
v. Bailey, 125 Mich. 104, 83 N. W. 
996; Ludington Water Supply Co. v. 
City of Luding'ton, 119 Mich. 480; 
Klichli v. Minnesota Brush Elec. 
Co., 58 Minn. 418; Light, Heat & 
Water Co. v. City of Jackson, 73 
Miss. 598, 19 So. 771; Reid v. Trow- 
bridge, 78 Miss. 542, 29 So. 167; 
Neosho City Water Co. v. City of 
Neosho, 136 Mo. 498, 38 S. W. 89; 
Schefbauer v. Board of Tp. Commit- 
tee of Kearney Tp., 57 N. J. Law, 
588, 31 Atl. 454. 

Davis v. Town of Harrison, 46 
N. J. Law, 79. The power of a mu- 
nicipal corporation to contract may 
be limited by statute to a specific 
term of years. State v. Ironton 
Gas Co., 37 Ohio St. 45; City of 
Wellston v. Morgan, 59 Ohio St. 147. 
A contract made in excess of the 
period fixed by statute is totally 
void. Logan Natural Gas & Fuel 
Co. v. City of Chillicothe, 65 Ohio 
St. 186, 62 N. E. 122; Bennett Wa- 
ter Co. v. Borough of Millvale, 202 
Pa. 616, 51 Atl. 1098; City of Hous- 
ton v. Houston City St. R. Co., 83 



905 ITS CONTROL, AND USE. 2117 

ease decided some years ago 1094 said in an opinion by Mr. Justice 
Davis in sustaining privileges extending over a long period of 
time, " the purposes to be attained are generally beyond the 
ability of individual enterprise, and can only be accomplished 
through the aid of associated wealth. This will be risked unless 
privileges are given and securities furnished in an act of incorpor- 
ation. The wants of the public are often so imperative, that a 
duty is imposed on government to provide for them; but as ex- 
perience has proved that a state should not directly attempt to 
do this, it is necessary to confer on others the faculty of doing 
what the sovereign power is unwilling to undertake. The legis- 
lature, therefore, says to public spirited citizens : ' If you will 
embark, with your time, money, and skill, in an enterprise which 
will accommodate the public necessities, we will grant to you, for 
a limited period, or in perpetuity, privileges that will justify the 
expenditure of your money, and the employment of your time and 
skill.' Such a grant is a contract, with mutual considerations, 
and justice and good policy alike require that the protection of 
the law should be assured to it." 

905. Same subject. Manner of exercise in respect to time and 
place. 

In the granting of a license or right, the public corporation has 
the power to impose upon the grantee all reasonable conditions 
and these may include conditions in respect to the commencement 

Tex. 548, 19 S. W. 127; Waco Water Beach, Monopolies, 118. "Where 
& Light Co. v. City of Waco (Tex. the length of time for which a fran- 
Civ. App.) 27 S. W. 675; City ol chise is granted is plainly unrea- 
Palestine v. Barnes, 50 Tex. 538. sonable and inconsistent with the 
The rule applied to the grant of ex- public welfare, the grant is not 
elusive market privileges for a pe- void, but voidable. It is voidable 
riod of twenty-one years. Towns- as an ultra vires act of the muni- 
end Gas & Elec. Co. v. City of Port cipal authorities. A grant may be 
Townsend, 19 Wash. 407, 53 Pac. made for a term of years, and a 
551; Oconto City Water Supply Co. privilege which is not a monopoly 
v. City of Oconto, 105 Wis. 76, 80 at the time at which it is granted 
N. W. 1113. does not become a monopoly by tne 
1094 The Binghampton Bridge lapse of any reasonable period. 
Co., 70 U.S. (3 Wall.) 51. See, also, In municipal grants there is a ne- 
Fidelity Trust & Guaranty Co. v. cessity for a fixed and somewhat 
Fowler Water Co., 113 Fed. 560. extended time. As the cost of sup- 



2118 PUBLIC PROPERTY. 905 

of work or the completion of a specified part within a designated 
time. 1095 

Place of exercise. A sidewalk is a part of a highway and the 
grant of the right to occupy and use streets would necessarily 
convey the privilege of using that portion of the street occupied 
by the sidewalk. 1096 The language of the grant may be definite in 
respect to the particular streets or public ways to be occupied and 
used by the grantee. Where this is true it will be unlawful for 
the one exercising the grant to occupy or use other streets or 
grounds not so designated without the express permission of the 
public authorities lawfully granted. 1097 "Where the grant is gen- 
eral in its terms and gives to the grantee his privileges without 
expressly designating the streets or public places, then it is not 
necessary, according to the weight of authority, for a special 
permit to be granted each time a new street is occupied or used 
for the lawful purposes of the grant. 1098 In a New York case 1099 
it was said: " It cannot reasonably be contended that the rela- 
tor is obliged to apply for a new grant whenever a new street is 
opened or an old one extended, as would be the case if the con- 
sent applied only to the situation existing when made. "When the 
right to use the streets has been once granted in general terms 
to a corporation engaged in supplying gas for public and private 

plying a city with gas or water is 1096 Louisville Bagging Mfg. Co. 

large and involves an expensive v. Central Pass. R. Co., 95 Ky. 50; 

plant, it would not be undertaken Knapp, Stout & Co. v. St. Louis 

by a private corporation on any Transfer R. Co., 126 Mo. 26, 28 S. 

temporary or uncertain franchise." W. 627; McDevitt v. Peoples' Nat. 

">3 Chicago Municipal Gas Light Gas Co., 160 Pa. 367, 28 Atl. 948. 

& Fuel Co. v. Town of Lake, 130 1007 City of Kalamazoo v. Kala- 

111. 42, 22 N. E. 616; Inhabitants of mazoo Heat, Light & Power Co., 

West Springfield v. West Spring- 124 Mich. 74, 82 N. W. 811; People 

field Aqueduct Co., 167 Mass. 128, v. Deehan, 11 App. Div. 175, 42 N. 

44 N. E. 1063. The rule will not Y. Supp. 1071. 

apply to additions made necessary 1098 Meyers v. Hudson County 

by the growth of the town. Grey Elec. Co., 63 N. J. Law, 573, 44 Atl. 

v. New York & P. Traction Co., 56 713, reversing 60 N. J. Law, 350, 37 

N. J. Eq. 463, 40 Atl. 21; Commer- Atl. 618. 

cial Elec. Light & Power Co. v. City 1000 People v. Deehan, 153 N. Y. 

of Tacoma, 17 W T ash. 661, 50 Pac. 528, 47 N. E. 787, rvg. 11 App. Div. 

592. A city may, however, be es- 175, 42 N. Y. Supp. 1071. 
topped by acquiescence to claim its 
rights in this respect. 



906 ITS CONTROL AND USE. 2119 

use, such grant necessarily contemplates that new streets are to 
be opened and old ones extended from time to time, and so the 
privilege may be exercised in the new streets as well as in the old. 
Such a grant is generally in perpetuity or during the existence of 
the corporation, or at least for a long period of time, and should 
be given effect according to its nature, purpose and duration. 
There is no good reason for restricting its operation to existing 
highways unless that purpose appears from the language em- 
ployed." The grant of a privilege or license can under no cir- 
cumstances convey a right to construct or place pipe lines or 
water mains upon the surface of the highway for, as said in an 
Indiana case : 110 "It is a nuisance and unlawful to place and keep 
or leave continuously in a public highway anything which either 
impedes or endangers public travel. This rule applies to the 
whole width of the highway, and not merely to a worn portion of 
it commonly used for passage. Privileges which, if usurped by a 
great number of persons or corporations would change the road 
from a public easement to a mere special benefit or convenience to 
such usurpers, are not lawful for any of them. The uses must be 
consistent with the continued use of the road and every part 
thereof as a passageway by all persons exercising ordinary care. ' ' 

906. New streets or extension of corporate limits. 

The rule in respect to the occupation or use of new streets has 
been given in the previous section. The right to occupy them 
without permission is dependent upon the language of the original 
grant of the license or privilege. 1101 Where the corporate limits 
of a municipality are lawfully extended, the right to occupy and 
use the highways of the additional territory is dependent again 
upon the language of the original grant if it is definite in its 
terms and conveys clearly the general right to carry on the busi- 
ness authorized within the limits of the grantor, this privilege is 
co-extensive territorially with the jurisdiction of the grantor. 1102 

1100 Indiana Natural & 111. Gas "01 People v. Deehan, 153 N. Y. 

Co. v. McMath, 26 Ind. App. 154, 57 528, 47 N. E. 787. 

N. E. 593, 59 N. E. 287; Lebanon "02 pittsburg, Ft. W. & C. R. Co. 

Light, Heat & Power Co. v. Leap, v. City of Chicago, 159 111. 369, 42 

139 Ind. 443, 39 N. E. 57, 29 L. R. A. N. E. 781. But see People v. 

342. Deehan, 11 App. Div. 175, 42 N. Y. 

Supp. 1071. 



2120 PUBLIC PROPERTY. g 907 

Neither can a change of boundaries deprive the grantee of such 
a license of his rights. 1103 The obligations of the contract are 
created by the people of a particular locality, not by the govern- 
ment that may represent them at a particular time. The people 
and the property constitute the contracting party; the external 
form of government is not considered. 1104 

907. Change of commodity furnished. 

The contract between a public corporation and the one supply- 
ing water, light or power, determines the relative rights of the 
parties in respect to a change of or an increase in the number of 
commodities furnished. The rule of strict construction applies as 
stated in a preceding section and where, therefore, a grant of the 
right to use the public highways for the purpose of supplying 
either water, light or power is not general in its terms but de- 
scribes in specific language the particular business which can be 
legally carried on by the grantee of the right, that grantee can- 
not lawfully engage in supplying another commodity resulting in 
the same benefit or put the articles which it is authorized to sup- 
ply for a designated purpose to another purpose ; 1105 neither can 
the grantee of such a license or contract increase the number of 
commodities supplied by him though in a general way the busi- 
ness of furnishing them is similar in character. The application 
of these rules forbid a company authorized to supply electric 
light from furnishing an electric current for power though gen- 
erated by the same plant and conveyed by the same wires or 
some of them. Neither can a company authorized to supply 
water or light alone engage in the business of furnishing both 
water and light. The rule also prevents a corporation organized 
for the purpose of manufacturing and selling artificial gas from 

1103 Johnson v. Owensboro & N. the village for supplying water is 

K. Co., 18 Ky. L. K. 276, 36 S. W. not destroyed or abridged. People 

8; State v. City of New Orleans, v. Deehan, 153 N. Y. 528, 47 N. E. 

41 L.a. 91, 5 So. 262; People v. 787. 

Deehan, 153 N. Y. 528, 47 N. E. 787. "os state v. Murphy, 130 Mo. 10, 

no* city of Grand Rapids v. 31 S. W. 594, 31 L. R. A. 798; Emer- 

Grand Rapids Hydraulic Co., 66 son v. Com., 108 Pa. Ill; Warren 

Mich. 606, 33 N. W. 749. Where a Gaslight Co. v. Pennsylvania Gas 

village was succeeded by a city or- Co., 161 Pa. 510. 
ganization, a privilege granted by 



908 



ITS CONTROL AND USE. 



2121 



using natural gas for the same identical purposes, 1106 and one au- 
thorized to furnish gas from supplying electricity. 1107 As a rule 
where a grant is made for the supply of a specific commodity, 
that grant is not impaired by the giving of a license to other par- 
ties to furnish a commodity resulting in the same benefit. 1108 

908. Grant of license upon condition. 

A public corporation, however advantageous the business of 
supplying certain commodities like water, light or power may be 
to the community, is not because of that fact under any obligation 
to grant a license or enter into a contract for the purpose under 
consideration. 1109 It is, therefore, free to attach to the granting 
of the right such conditions as it may deem of advantage to 
itself, 1110 an option to purchase, for example, 1111 or which may 
be necessary in order to enable it to properly exercise its own 
public powers and perform its governmental duties. 1112 The con- 



iios Erie Min. & Natural Gas Co. 
v. Gas Fuel Co., 15 Wkly. Notes 
Gas. (Pa.) 399. 

HOT Scranton Elec. Light & Heat 
Co. v. Scranton Illuminating Heat 
& Power Co., 122 Pa. 154, 15 Atl. 
446, 1 L. R. A. 285. 

iios Johnston's Appeal (Pa.) 7 
Atl. 167; Warren Gaslight Co. v. 
Pennsylvania Gas Co., 161 Pa. 510. 

1109 Eureka Light & Ice Co. v. 
City of Eureka, 5 Kan. App. 669, 48 
Pac. 935. 

mo Southern Bell Teleg. & Tel. 
Co. v. City of Richmond (C. C. A.) 
103 Fed. 31, affirming 98 Fed. 671- 
A telephone company accepting 
-certain conditions is bound by 
them even though a municipal 
council is not authorized under the 
statute to exact them. Logansport 
R. Co. v. City of Logansport, 114 
Fed. 688. Consent of common 
council necessary. City of New 
Britain v. New Britain Tel. Co., 74 
onn. 326, 50 Atl. 881, 1015. Con- 
struing condition to maintain inde- 



pendent telephone line. Sioux City 
St. R. Co. v. City of Sioux City, 78 
Iowa, 742, 39 N. W. 498; Brown v. 
Du Plessis, 14 La. Ann. 842; State 
v. City of New Orleans, 32 La. Ann. 
268; Township of Grosse Pointe v. 
Detroit & L. St. C. R. Co., 130 
Mich. 363, 90 N. W. 42; Virginia 
City Gas Co. v. Virginia City, 3 
Nev. 320; Trenton St. R. Co. v. 
Pennsylvania R. Co., 63 N. J. Eq. 
276, 49 Atl. 481; Davidge v. Com- 
mon Council of Binghamton, 62 
App. Div. 525, 71 N. Y. Supp. 282. 

mi Montgomery Gas-Light Co. v. 
City Council of Montgomery, 87 
Ala. 245, 6 So. 113, 4 L. R. A. 616; 
Keokuk Gas-Light & Coke Co. v. 
City of Keokuk, 80 Iowa, 137, 45 N. 
W. 555. See 932, post. 

1112 Mercantile Trust & Deposit 
Co. v. Collins Park & B. R. Co., 101 
Fed. 347. Construing condition re- 
serving in municipalities the power 
to secure an entrance to the heart 
of a city for other lines of road. 
Pikes Peak Power Co. v. City of 



2122 



PUBLIC PROPERTY. 



908 



ditions which are ordinarily found relate to a free supply of 
water or light to the municipality, 1113 to the construction and 
operation of the plant, 1114 and a consideration, monetary or 



Colorado Springs, 105 Fed. 1; Citi- 
zens' Horse R. Co. v. City of Belle- 
ville, 47 111. App. 388; State v. Mur- 
phy, 134 Mo. 548, 31 S. W. 784, 34 
S. W. 51, 35 S. W. 1132, 34 L. R. A. 
369. A grant of a subway which 
reserves to the city no control over 
the business or rules of the com- 
pany is ultra vires. Conover v. 
Long Branch Commission, 65 N. J. 
Law, 167, 47 Atl. 222. 

ms National Water-works Co. v. 
School Dist. No. 7, 4 McCrary, 198, 
48 Fed. 523; State Trust Co. v. City 
of Duluth, 104 Fed. 632; Boise City 
Artesian Hot & Cold Water Co. v. 
Boise City, 123 Fed. 232; City and 
County of San Francisco v. Spring 
Valley Water-works Co., 48 Cal. 
493; Boise City v. Artesian Hot & 
Cold Water Co., 4 Idaho, 351, 39 
Pac. 562; Commercial Bank v. City 
of New Orleans, 17 La. Ann. 190; 
City of New Orleans v. Great 
Southern Telep. & Tel. Co., 40 La. 
Ann. 41. 

National Water-works Co. v. Kan- 
sas City School Dist., 23 Mo. App. 
227. School buildings are not pub- 
lic buildings of a city within the 
meaning of that phrase as used in 
a contract to furnish free water to 
"public buildings of the city." Wa- 
ter Supply Co. of Albuquerque v. 
City of Albuquerque, 9 N. M. 441, 
54 Pac. 969; Borough of Easton v. 
Lehigh Water Co., 97 Pa. 554; St. 
Clair School Dist. v. Monongahela 
Water Co., 166 Pa. 81, 31 Atl. 71; 
Kensington Elec. Co. v. City of 
Philadelphia, 187 Pa. 446, 41 Atl. 
309; City of Memphis v. Memphis 
Water Co., 67 Tenn. (8 Baxt.) 587. 



Such a condition will be strictly 
construed in favor of the company. 
See the following cases: Louisville 
Water Co. v. Clark, 143 U. S. 1. 
Where a supply of free water is 
based upon a fixed exemption, the 
withdrawal of the exemption will 
release it from its obligation in this 
respect. Hawes v. Contra Costa 
Water Co., 5 Sawy. 287, Fed. Cas. 
No. 6,235; City and County of San 
Francisco v. Spring Valley Water- 
works Co., 48 Cal. 493; Commercial 
Bank v. City of New Orleans, 17 
La. Ann. 190; City of New Orleans 
v. New Orleans Water-works Co., 
36 La. Ann. 432 ; Spring Brook Wa- 
ter Co. v. Pittston, 203 Pa. 2S3, 52 
Atl. 249; Ashland Water Co. v. Ash- 
land County, 87 Wis. 209, 58 N. W. 
235. 

iii4 Lanning v. Osborne, 76 Fed. 
319. A consumer whose right to 
demand a supply of water from the 
company as now vested is pro- 
tected in this right. People v. Sut- 
ter St. R. Co., 117 Cal. 604, 49 Pac. 
736. A provision in a street rail- 
way franchise which conflicts with 
502 Civil Code, is necessarily in- 
valid. Leadville Water Co. v. City 
of Leadville, 22 Colo. 297, 45 Pac. 
362; Grand Junction Water Co. v. 
City of Grand Junction, 14 Colo. 
App. 424, 60 Pac. 196; Coverdale v. 
Edwards, 155 Ind. 374, 58 N. E. 
495. The condition may be the 
right of the council to revoke the 
license at pleasure. Village of 
Dearborn v. Detroit, Y., A. A. & J. 
R. Co., 131 Mich. 19, 90 N. W. 688; 
City of Stillwater v. Lowry, 83 
Minn. 275, 86 N. W. 103; Board of 



908 



ITS CONTROL AND USE. 



2123 



otherwise, in favor of the public corporation after competitive 
bidding. 1116 Limitations may be placed upon the location of the 



Finance of Jersey City v. Board of 
Street and Water Com'rs, 55 N. J. 
Law, 230, 26 Atl. 92; In re Loader, 
35 N. Y. Supp. 996, 999; Jones v. 
Rochester Gas & Elec. Co., 168 N. 
Y. 65, 60 N. E. 1044. Laws 1890, c. 
566, 65, requires gas companies 
to supply any owner or occupant of 
a building in compliance with cer- 
tain conditions with gas under cer- 
tain penalties. Plymouth Tp. v. 
Chestnut Hill & N. R. Co., 168 Pa. 
181, 32 Atl. 19; Wood v. City ot 
Seattle, 23 Wash. 1, 62 Pac. 135, 52 
L. R. A. 369. Condition for com- 
pulsory arbitration of all disputes 
arising between the street railway 
company and its employes held 
valid. 

1115 People v. Craycroft, 111 Cal. 
544, 44 Pac. 463. Act March 23d, 
1893, statutes 1893, p. 288, which 
requires that "every franchise or 
privilege to erect or lay telegraph 
or telephone wires, to construct or 
operate railroads along or upon 
any public street or highway, or to 
exercise any other privilege what- 
ever" proposed to be granted by 
the governing body of any town 
must be advertised and given to 
the highest bidder, does not apply 
to the grant of the right of way to 
a steam railroad company through 
a town. 

Pereria v. Wallace, 129 Cal. 397, 
62 Pac. 61; Borough of Ridley Park 
v. Citizens' Elec. Light & Power 
Co., 7 Del. Co. R. 395. An ordi- 
nance requiring an electric light 
company to pay a fixed sum for 
each of its poles comes within the 
proper exercise of the police power. 
State v. Herod, 29 Iowa, 123. The 



grant of an exclusive right for the 
construction and maintenance of 
street railway lines does not ex- 
empt the company from paying the 
license fee provided by prior ordi- 
nance to be paid by all persons en- 
gaged in carrying passengers. 
Keith v. Johnson, 22 Ky. L. R. 947, 
59 S. W. 487; East Louisiana R. 
Co. v. City of New Orleans, 46 La. 
Ann. 526, 15 So. 157. La. Act 1888, 
No. 135, 4, applies only to a sale 
of a railroad franchise to a street 
railway operated within the city 
and not to steam commercial rail- 
roads. New Orleans City & L. R. 
Co. v. Watkins, 48 La. Ann. 1550, 
21 So. 199; Abraham v. Meyers, 29 
Abb. N. C. 384, 23 N. Y. Supp. 225, 
228; Adamson v. Nassau Elec. R. 
Co., 68 N. Y. State Rep. 851, 34 N. 
Y. Supp. 1073; In re Empire City 
Traction Co., 4 App. Div. 103, 38 N. 
Y. Supp. 983; Southern Boulevard 
R. Co. v. Peoples Traction Co., 39 
N. Y. Supp. 266; Johnson v. City of 
Philadelphia, 60 Pa. 445; City of Al- 
legheny v. Millville, E. & S. St. R. 
Co., 159 Pa. 411, 28 Atl. 202; Cava- 
naugh v. Pawtucket, 23 R. I. 102, 49 
Atl. 494. 

Linden Land Co. v. Milwaukee R. 
& Light Co., 107 Wis. 493, 83 N. W. 
851. A grant or' a franchise by a 
city without receiving any compen- 
sation but on 'the consideration that 
the company shall charge a re- 
duced fare does not constitute a 
surrender of the property rights of 
the city such as would authorize a 
suit by a tax payer to restrain the 
acceptance of the franchise by the 
railway company. 

The special franchise tax im- 



2124: 



PUBLIC PROPERTY. 



908 



plant, both in respect to its buildings and also its mains, pipes, 
wires and other facilities for distributing its commodity. 1110 The 
materials used in construction may also be designated in the 
grant and the manner in which the distributing part of the plant 
erected. It is well known that the manufacture and distribution 
of electricity for purposes of lighting and power is attended with 
great danger to the public. Currents are generated which are 
exceedingly destructive to both life and property if the apparatus 
conducting them is not properly constructed and insulated. 1117 
Corporations may be required to grant the use of poles or tracks 
to other companies under certain conditions, 1118 and the rights of 



posed by N. Y. Laws, 1899, c. 712, 
was sustained in People v. New 
York State Board of Tax Com'rs, 
199 TJ. S. 1, where the court held 
that the Imposition and collection 
of a license fee did not exempt a 
street railroad company from the 
tax imposed by the law above cited 
under this franchise. See, also, 
People v. New York State Board of 
Tax Com'rs, 199 U. S. 48, and a 
number of other cases decided at 
the same time and following the 
leading case first given above. 

msRicketts v. Birmingham St. 
R. Co., 85 Ala. 600; Canastota Knife 
Co. v. Newington Tramway Co., 69 
Conn. 146, 36 Atl. 1107; Norwalk 
& S. N. Elec. Light Co. v. Common 
Council, 71 Conn. 381, 42 Atl. 82; 
Marshall v. City of Bayonne, 59 N. 
J. Law, 101, 34 Atl. 1080; Meyers v. 
Hudson County Elect. Co., 60 N. J. 
Law, 350, 37 Atl. 618. 

HIT Missouri v. Murphy, 170 U. S. 
78; Id., 130 Mo. 10; City of Denver 
v. Sherret (C. C. A.) 88 Fed. 226; 
National Subway Co. v. City of St. 
Louis, 145 Mo. 551, 46 S. W. 981, 4^ 
L. U. A. 113. Joyce, Elec. Law $ 
438. 

ins Chicago, St. P. & K. C. R. Co. 
v. Kansas City, St. J. & C. B. R. 



Co., 52 Fed. 178; Pacific R. Co. v. 
Wade, 91 Cal. 449, 27 Pac. 768, 13 
L. R. A. 754; Hook v. Los Angeles 
R. Co., 129 Cal. 180, 61 Pac. 912; 
Bergin v. Southern New England 
Tel. Co., 70 Conn. 54, 38 Atl. 888, 39 
L. R. A. 192; Chicago General R. 
Co. v. West Chicago St. R. Co., 63 
111. App. 464; Canal & C. R. Co. v. 
Orleans R. Co., 44 La. Ann. 54, 10 
So. 389; New Orleans & C. R. Co. 
v. Canal & C. R. Co., 47 La. Ann. 
1476, 17 So. 834; State v. King, 104 
La. 735, 29 So. 359. The right may 
exist without its being made an ex- 
press condition on the part of the 
city to authorize other street rail- 
roads to use certain tracks. 

Koch v. North Ave. R. Co., 75 
Md. 222, 23 Atl. 463, 15 L. R. A. 
377; North Baltimore Pass. R. Co. 
v. North Ave. R. Co., 75 Md. 233, 
23 Atl. 466. The condition exists, 
the fact that another street railway 
company may use a different power 
is immaterial. Citizens' Elec. 
Light & Power Co. v. Sands, 95 
Mich. 551, 55 N. W. 452, 20 L. R. 
A. 411; Union Depot R. Co. v. 
Southern R. Co., 105 Mo. 562, 16 S. 
W. 920; Grand Ave. R. Co. v. Peo- 
ples' R. Co., 132 Mo. 34, 33 S. W. 
472; Grand Ave. R. Co. v. Citizens' 



908 



2125 



electric light, telephone and telegraph companies restricted in 
respect to the trimming of shade trees. 1119 

Consent of abutters. The consent of abutting property owners 
may be imposed as a condition precedent to the lawful construc- 
tion of street railways or laying of water or gas pipes or electric 
wires, even in those communities where the fee of the highway is 
vested in the public corporation and irrespective of the question 
of the imposition of an additional burden. 1120 The advantages 



R. Co., 148 Mo. 665, 50* S. W. 305; 
Suburban Elec. Light & Power Co. 
v. Inhabitants of East Orange (N. 
J. Eq.) 41 Atl. 865; People v. Barn- 
ard, 110 N. Y. 548, 18 N. E. 354; 
Sixth Ave. R. Co. v. Kerr, 45 Barb. 
(N. Y.) 138; Staten Island Midland 
R. Co. v. Staten Island Elec. R. Co., 
34 App. Div. 181, 54 N. Y. Supp. 
598; Gallagher v. Keating, 27 Misc. 
131, 58 N. Y. Supp. 366. Constru- 
ing N. Y. Laws 1890, c. 565, 78, 
which makes it lawful for any rail- 
road corporation to contract with 
any other railroad for the use of 
their respective roads or any part 
thereof. Toledo Elec. St. R. Co. v. 
Toledo & M. V. R. Co., 7 Ohio N. 
P. 211; Kinsman St. R. Co. v. 
Broadway & N. St. R. Co., 36 Ohio 
St. 239; Com. v. Sycamore St. R. 
Co., 30 Pittsb. Leg. J. (N. S.) 333; 
Johnson v. City of Philadelphia, 60 
Pa. 445. 

1119 Consolidated Traction Co. v. 
East Orange Tp., 63 N. J. Law, 669, 
44 Atl. 1099, affirming 61 N. J. Law, 
202, 38 Atl. 803; Brown v. Ashe- 
ville Elec. Co., 138 N. C. 533, 69 L. 
R. A. 631. An abutting owner has 
the right to recover damages for 
the cutting of trees upon a side- 
walk for the accommodation of 
electric light wires in entire disre- 
gard of his rights. See, also, 911, 
post. 

naoBeeson v. City of Chicago, 75 



Fed. 880; City of Knoxville v. 
Africa (C. C. A.) 77 Fed. 501, re- 
versing 70 Fed. 729; Tibbitts v. 
West & South Town St. R. Co., 54 
111. App. 180, 153 111. 147, 38 N. E. 
664; North Chicago St. R. Co. v. 
Cheetham, 58 111. App. 318 ; Stewart 
v. Chicago General St. R. Co., 58 111. 
App. 446, affirmed in 166 111. 61, 46 
N. E. 765. An abutting owner has 
no such interest in a street as will 
entitle him to enjoin its use for a 
street railway. City of Chester v. 
Wabash, C. & W. R. Co., 182 111. 
382, 55 N. E. 524; McGann v. Peo- 
ple, 194 111. 526, 62 N. E. 941; Ken- 
nedy v. Detroit R. Co., 108 Mich. 
390, 66 N. W. 495; West Jersey 
Traction Co. v. Board of Public 
Works of Camden, 56 N. J. Law, 
431, 29 Atl. 163; Point Pleasant 
Elec. Light & Power Co. v. Bor- 
ough of Bayhead, 62 N. J. Eq. 296, 
49 Atl. 1108; Hutchinson v. Bor- 
ough of Belmar, 61 N. J. Law, 443; 
In re Auburn City R. Co., 88 Hun, 
603, 34 N. Y. Supp. 992; New York 
Cable R. Co. v. Chambers St. & G. 
St. Ferry R. Co., 40 Hun (N. Y.) 
29; Merriman v. Utica Belt Line 
St. R. Co., 18 Misc. 269, 41 N. Y. 
Supp. 1049; Beekman v. Third Ave. 
R. Co., 13 App. Div. 279, 43 N. Y. 
Supp. 174. A property owner may 
enjoin the unauthorized construc- 
tion of a street railroad in the 
street adjoining his property. An 



2126 PUBLIC PROPERTY. 909 

of this condition are appreciated best by an inspection of many 
residence streets in cities and towns and where, unfortunately, it 
as well as a retention of the power to arbitrarily compel the lay- 
ing of wires underground is too often lacking. 

The owner of property can effectually control the use of pub- 
lic highways by reserving in the dedication the right to dictate in 
respect to the laying of mains and pipes, the erection and string- 
ing of poles and wires or the laying of wires underground and 
further regulate their operation and the rates which may be 
charged. The consent of the abutting owner*by this method may 
be made absolutely necessary to the granting of all privileges or 
licenses or the use of public highways. 

909. Exercise of the grant. 

The power to impose conditions is one which impliedly be- 
longs to all public corporations having the right to grant licenses 
of this character and the conditions may apply not only to the 
original construction of the plant but also to its maintenance, use, 
and operation thereafter. 1121 It is not necessary, however, that 
the right be reserved to the grantor of a license that it be capable 
of regulating the manner of the exercise of a grant. The state 
and its subordinate agencies retain under all conditions and cir- 
cumstances the right to exercise the police power 1122 and also to 
maintain and preserve the public highways for the chief and par- 
Injunction against the city extend- street railway line. Gray v. Dallas 
ing over seven miles is too broad. Terminal R. & Union Depot Co., 13 

Tiedemann v. Staten Island M. Tex. Civ. App. 158, 36 S. W. 352; 
R. Co., 18 App. Div. 368, 46 N. Y. Western Union Tel. Co. v. Wil- 
Supp. 64; Sea Beach R. Co. v. liams, 86 Va. 696, 8 L. R. A. 429. 
Coney Island & G. Elec. R. Co., 22 But see Kennelly v. City of Jersey 
App. Div. 477, 47 N. Y. Supp. 981; City, 57 N. J. Law, 293, 30 Atl. 531, 
In re Buffalo Traction Co., 155 N. 26 L. R. A. 281; Ingersoll v. Nas- 
Y. 700; Mt. Auburn Cable R. Co. v. sau Elec. R. Co., 89 Hun, 213, 34 
Neare, 54 Ohio St. 153, 42 N. E. N. Y. Supp. 1044. 
768; Pennsylvania R. Co. v. Greens- 1121 state v. Sloan, 48 S. C. 21. 
burg J. & P. St. R. Co., 176 Pa. 559, 1122 Nebraska Tel. Co. v. York 

35 Atl. 122, 36 L. R. A. 839. A Gas & Elec. Light. Co., 27 Neb. 
steam road whose lines are crossed 284; Consolidated Traction Co. v. 
by a s'treet railway is not an abut- Elizabeth City, 58 N. J. Law, 619, 
ting owner whose consent is neces- 34 Atl. 146, 32 L. R. A. 170. See, 
sary to the construction of the also, 900, ante, and 912, pos't. 



909 



ITS CONTROL AND USE. 



2127 



amount purpose for which they were established. 1123 The erec- 
tion of poles by telegraph, telephone and electric lighting compa- 
nies and the stringing of necessary wires are unquestionably per- 
manent obstructions in a highway, to be done in that manner 
which will minimize their true character as obstructions. The 
question of compensation to an abutting owner as based upon an 
additional burden or servitude has already been considered. 1124 
Companies authorized to supply water and gas can be restricted 
in respect to the manner 1125 and the time 1126 in which their pipes 
and appurtenances can be laid either originally or for the pur- 
pose of making repairs. 1127 A regulation requiring the securing 



1123 North Chicago City R. Co. v. 
Town of Lake View, 105 111. 207; 
Benton v. Elizabeth City, 61 N. 
J. Law, 693, 40 Atl. 1132; Wabash 
R. Co. v. City of Defiance, 52 Ohio 
St. 262, 40 N. E. 89. See 912, post. 

1124 Chicago, B. & Q. R. Co. v. 
Chicago St. R. Co., 156 111. 255, 40 
N. E. 1008, 29 L. R. A. 485, afg. 54 
111. App. 273. The use of a street 
by street cars whether propelled by 
horse power or electricity does not 
constitute an additional servitude. 
Pennsylvania R. Co. v. Montgomery 
County Pass. R. Co., 107 Pa. 62, 27 
L. R. A. 766; Linden Land Co. v. 
Milwaukee Elec. R. & Light Co., 
107 Wis. 493, 83 N. W. 851. Wis. 
Rev. St. 1862, provides for the in- 
corporation of street railways for 
the carrying of freight as well as 
passengers is not unconstitutional 
because of the imposition of an ad- 
ditional burden on abutting prop- 
erty owners without compensation 
for the law only authorizes the oc- 
cupancy of a street as against the 
city. The occupation is still sub- 
ject to the rights of abutting own- 
ers. See 818 et seq. 

"25Haugen v. Albina Light & 
Wa'ter Co., 21 Or. 411, 28 Pac. 244, 
14 L. R. A. 424. 



1126 City Council of Montgomery 
v. Capital City Water Co., 92 Ala. 
361; City and Council of San Fran- 
cisco v. Spring Valley Water-works 
Co., 53 Cal. 608; Cedar Rapids Wa- 
ter Co. v. City of Cedar Rapids, 118 
Iowa, 234, 91 N. W. 1081; Heman v. 
St. Louis Merchants' Land Imp. 
Co., 75 Mo. App. 372; Benton v. 
Elizabeth City, 61 N. J. Law, 693, 
40 Atl. 1132; Appeal of City of 
Pittsburgh, 115 Pa. 4, 7 Atl. 778; 
City of Ashland v. Wheeler, 88 Wis. 
607, 60 N. W. 818; Chisholm v. City 
of Halifax, 29 Nova Scotia, 402. 

1127 City of New Haven v. New 
Haven Water Co., 44 Conn. 105. 
The right to charge a reasonable 
fee for granting a license to a wa- 
ter company to open the street sus- 
tained. 

Ft. Pitt Gas Co. v. Borough of 
Sewickley, 198 Pa. 201, 47 Atl. 957. 
A fee of fifty cents required for 
making each excavation in a street 
is reasonable and proper. One of 
$3 for unpaved and $5.00 for paved 
street with a deposit of $10.00 in 
each case, held unreasonable and 
disproportionate for the expense in- 
curred by the borough in the super- 
vision of its streets. 



2128 



PUBLIC PROPERTY. 



910 



of a permit from the proper officer before this can be done is not 
only a lawful one but reasonable. 1128 

910. Replacing improvements. 

In the larger cities and towns on the main streets and many of 
the residence streets, costly and permanent improvements are 
made at the expense of the abutting owner. The implied right 
unquestionably exists on the part of the public authorities to rea- 
sonably restrict companies to whom the right has been given to 
use the highway for any of the purposes indicated, in the tearing 
up of these improvements. 1129 A regulation requiring a permit is 
reasonable 113 and the grantee of the right should be required to 
restore the highway to the condition in which it was at the time 
it was torn up at its own expense 1131 and in the same permanent 
and workmanlike manner. 1132 So, corporations occupying the 



lias Missouri v. Murphy, 170 U. S. 
78; Mu'tual Elec. Light Co. v. Ash- 
worth, 118 Cal. 1. A city cannot 
discriminate in the granting of per- 
mits. United States Illuminating 
Co. v. Hess, 19 N. Y. State Rep. 
883, 3 N. Y. Supp. 777; Ghee v. 
Northern Union Gas Co., 34 App. 
Div. 551, 56 N. Y. Supp. 450, re- 
versed in some respects in 158 N. 
Y. 510, 53 N. E. 692. 

1129 city of Indianapolis v. Con- 
sumers' Gas Trust Co., 140 Ind. 107, 
27 L. R. A. 514; Northern Liberties 
Com'rs v. Northern Liberties Gas 
Co., 12 Pa. 318; Ft. Pitt Gas Co. v. 
Borough of Sewickley, 198 Pa. 201, 

.47 Atl. 957. 

1130 Ghee v. Northern Union Gas 
Co., 34 App. Div. 551, 56 N. Y. Supp. 
450, reversed in some instances in 
158 N. Y. 510, 53 N. E. 692. 

1131 Crebs v. City of Lebanon, 98 
Fed. 549. A city has no power to 
enforce these conditions against a 
purcnaser at foreclosure sale who 
removed the rails leaving ties in 
the streets. Indianapolis & C. R. 



Co. v. City of Lawrenceburg, 34 
Ind. 304; State v. Lake Koen Navi- 
gation, Reservoir & Irr. Co., 63 
Kan. 394, 65 Pac. 681; City of Du- 
luth v. Duluth St. R. Co., 60 Minn. 
178, 62 N. W. 267; State v. Minne- 
sota Transfer R. Co., 80 Minn. 108, 
83 N. W. 32, 50 L. R. A. 656; Village 
of Mechanicville v. Stillwater & M. 
St. R. Co., 67 App. Div. 628, 74 N. 
Y. Supp. 1149; McHale v. Easton & 
B. Transit Co., 169 Pa. 416, 32 Atl. 
461; City of Philadelphia v. Thir- 
teenth & Fifteenth St. Pass. R. Co., 
169 Pa. 269, 33 Atl. 126. But see 
State v. New Orleans Traction Co., 
48 La. Ann. 567, 19 So. 565; Still- 
water Water Co. v. City of Still- 
water, 50 Minn. 498, 52 N. W. 893. 
Holding a nonliability under condi- 
tions considered. City of Dallas v. 
Dallas Consol. Traction Co. (Tex. 
Civ. App.) 33 S. W. 757. See 
857 et seq., ante. 

us* City of Kalamazoo v. Kala- 
mazoo Heat, Light & Power Co.. 
124 Mich. 74, 82 N. W. 811. 



911 



ITS CONTROL AND USE. 



2129 



public highways may be controlled in their use of them in respect 
to sewers, pipes, mains or wires belonging to the public corpora- 
tion 1133 or other private companies 1134 and they may be made lia- 
ble for any injuries to them which occur through their own use 
of the highway. 



911. Destruction of or injury to trees. 

In some states the rights of companies organized for the pur- 
pose of supplying light, telephone or telegraph service in respect 
to the destruction of or injury to shade or other trees in the pub- 
lic highways, are determined by the language of statutes. In 
Connecticut 1135 the construction of a line of poles and wires upon 
a highway where the same interferes with or necessitates the 
removal or trimming of trees is dependent upon the consent of 
the abutting owner. Aside from statutory provisions the right 
of these corporations to remove or trim trees without paying 
damages seems to be based upon the adoption of the rule in re- 
spect to whether or not such occupation of a highway constitutes 
an additional burden. 1136 If the principle obtains in a particular 
state that a line of this character is an additional burden, then 
the company cannot destroy or trim trees even when reasonably 
necessary to the construction of the line without compensating 
the owner or becoming liable for the damages sustained by 
him. 1137 Where the other rule holds, however, namely, that the 
construction of a line of telegraph, telephone or electric wires 



1133 Hough v. Smith, 37 Misc. 363, 
75 N. Y. Supp. 451; City of San An- 
tonio v. San Antonio St. R. Co., 15 
Tex. Civ. App. 1, 39 S. W. 136. 

us* Rockland Water Co. v. Till- 
son, 75 Me. 170; People v. Squire, 
107 N. Y. 593, affirmed 145 U. S. 
175. 

1135 Hoyt v. Southern New Eng- 
land Tel. Co., 60 Conn. 385; Brad- 
ley v. Southern New England Tel. 
Co., 66 Conn. 559, 34 Atl. 499, 32 L. 
R. A. 280. Conn. Gen. St. 3944, 
3945, 3946. 

use Brown v. Ashville Elec. Light 
Co. (N. C.) 51 S. E. 62; Tate v. City 
Abb. Corp. Vol. Ill 10. 



of Greensboro, 114 N. C. 392, 19 S. 
E. 767, 24 L. R. A. 671. See, also, 
Donahue v. Keystone Gas Co., 181 
N. Y. 313, 73 N. E. 1108. 

1137 McAntire v. Joplin Tel. Co., 
75 Mo. App. 535; Clay v. Postal Tel. 
Cable Co., 70 Miss. 406; McCruden 
v. Rochester R. Co., 77 Hun, 609, 
28 N. Y. Supp. 1135. Awarding 
damages under Code Civ. Proc. 
1667. Gorham v. Eastchester Elec. 
Co., 80 Hun (N. Y.) 290; Daily v. 
State, 51 Ohio St. 348, 24 L. R. A. 
724; Rugg v. Commercial Union 
Tel. Co., 66 Vt. 208. 



PUBLIC PROPERTY. 



912 



does not constitute an additional burden for which compensation 
may be recovered, these companies have the right, when they 
have been lawfully granted the authority to occupy highways, to 
remove or trim trees whenever this becomes reasonably necessary 
for the construction or in the proper maintenance of the line for 
the purpose for which it was constructed, 1138 but they clearly have 
no right to destroy or injure trees on private property. 1139 

912. Regulation by public corporations, extent and character. 

All public corporations within whose jurisdiction may be con- 
structed and operated under lawful authority any of the public 
utilities, so called, and included within the present discussion, 
possess the right to regulate in a proper manner under the police 
power of the state these facilities both in their construction and 
operation. 1140 It is not necessary that this right be reserved in 
the grant of a license or privilege but it is regarded as an implied 
one, 1141 and because based upon an exercise of the police power 



USB Southern Bell Telep. & Tel. 
Co. v. Constantine, 61 Fed. 61; 
Southern Bell Tel. Co. v. Francis, 
109 Ala. 224, 19 So. 1, 31 L. R. A. 
193; Consolidated Trac'tion Co. v. 
East Orange Tp., 61 N. J. Law, 202, 

38 Atl. 803. Joyce, Elec. Law, 
395. 

USD Western Union Tel. Co. v. 
Satterfleld, 34 111. App. 386; Tissot 
v. Great Southern Teleg. & Tel. Co., 

39 La. Ann. 996; Cumberland Tel. 
& Tel. Co. v. Shaw, 102 Tenn. 313, 
52 S. W. 163. 

ii4o Missouri v. Murphy, 170 U. S. 
78; Id., 130 Mo. 10; Elec. Imp. Co. 
v. City and Council of San Fran- 
cisco, 45 Fed. 593; Electric Con- 
struction Co. v. Heffernan, 58 Hun, 
605, 12 N. Y. Supp. 336; Lahr v. 
Metropolitan El. R. Co., 104 N. Y. 
268; Ogden City R. Co. v. Ogden 
City, 7 Utah, 207, 26 Pac. 288. See, 
also, cases cited in the following 
notes. 

nil Stein v. Bienville Water Sup- 



ply Co., 34 Fed. 145; Jamieson v. 
Indiana Natural Gas & Oil Co., 128 
Ind. 555, 28 N. E. 76, 12 L. R. A. 
652. "The public safety and wel- 
fare is the highest consideration in 
all legislation, and to this consid- 
eration private rights must yield. 
No man has a right to so use a 
dangerous species of property as to 
put the safety of others in peril. 
Liberty does not imply the right of 
one man to so use property as to 
endanger the property of others, 
nor does ownership imply any such 
right. This is rudimental. It must, 
therefore, be true that the owner 
of property of such a dangerous na- 
ture as to require regulations to pre- 
vent injury to others can have no 
right paramount to the police 
power. It is not too much to say 
that as against the police power 
there is no such thing as a vested 
right." State v. Inhabitants of 
City of Trenton, 58 N. J. Law, 132, 
20 Atl. 1076; Benedict v. Columbus 



912 



ITS CONTROL AND USE. 



2131 



as continuing and inextinguishable, 1142 and further, one that can- 
not be surrendered or bargained away. 1143 Where public high- 
ways are occupied and used, the public authorities also retain 
the implied power to regulate these corporations because of their 
inherent power to preserve and maintain public ways for their 
original and primary purpose. 1144 While it is true that, under 
modern conditions, railway, telephone and telegraph service, a 
supply of gas or water, electricity for light, or power, are re- 
garded as not only conveniences but necessities and that it is im- 
possible to distribute or supply them without a use of the public 
highways, yet it must be remembered that these uses of a public 
highway while indispensable according to present notions, are 
but secondary and subordinate uses. 1145 The public authorities, 



Const. Co., 49 N. J. Eq. 23; Western 
Union Tel. Co. v. City of Philadel- 
phia (Pa.) 12 Atl. 144. Northern 
Liberties Com'rs v. Northern Lib- 
erties Gas Co., 12 Pa. 318; Com- 
monYv-ealth v. Warwick, 185 Pa. 
623, 40 Atl. 93. 

ii42 New Orleans Gas Co. v. 
Louisiana Light Co., 115 U. S. 650; 
Railroad Commission Cases, 116 U. 
S. 307; City of Walla Walla v. 
Walla Walla Water Co., 172 U. S. 
1; New Memphis Gas & Light Co. 
v. City of New Memphis, 72 Fed. 
952. But property rights cannot be 
destroyed under an illegal exercise 
of the police power. Benedict v. 
Columbus Construction Co., 49 N. J. 
Eq. 23, 23 Atl. 485. But property 
or vested rights cannot be de- 
stroyed by an illegal regulation un- 
der guise of the police power. 
State v. Columbus Gaslight & Coke 
Co., 34 Ohio St. 572; Zanesville v. 
Zanesville Gas-Light Co., 47 Ohio 
St. 1, 23 N. E. 55; City of Knoxville 
v. Knoxville Water Co., 107 Tenn. 
647, 64 S. W. 1075, 61 L. R. A. 888. 
See 115 et seq., ante. 

" see 913, post. 

n-uWabash R. Co. v. City of De- 



fiance, 167 U. S. 88; Schmitt v. 
City of New Orleans, 48 La. Ann. 
1440, 21 So. 24. A city council in 
locating a street railway has a 
right to designate what part of the 
street it can occupy. Milhau v. 
Sharp, 27 N. Y. 611. A resolu- 
tion of the common council of New 
York City permitting private per- 
sons to lay down and make use of 
a street railway with no power re- 
served to rescind it and no limita- 
tion in time is a contract and not a 
license and is void because it 
grants powers which are a public 
trust and cannot be delegated or 
abridged by the corporate- authori- 
ties. Montreal Park & I. R. Co. v. 
Town of St. Louis, 17 Rap. Jud. 
Que. C. S. 545. See, also, 909, 
ante. 

1145 City of Mobile v. Louisville 
& N. R. Co., 124 Ala. 132, 26 So. 
902; Chicago General R. Co. v. Chi- 
cago City R. Co., 62 111. App. 502; 
Pennsylvania Co. v. City of Chi- 
cago, 181 111. 289, 54 N. B. 825, 53 
L. R. A. 223; Lebanon Light, Heat 
& Power Co. v. Leap, 139 Ind. 443, 
39 N. E. 57, 29 L. R. A. 342. Lay- 
ing pipes in a highway without per- 



PUBLIC PROPERTY. 



912 



therefore, can regulate, because of this legal condition and fact, 
such use and occupation. The numerous subordinate public cor- 
porations and public quasi corporations vary in the extent of 
their powers according to the purpose for which they are created 
by the state. 1148 Their right to adopt regulations or control the 
use of the public highways either because of the police power or 
the other right just suggested will depend, therefore, upon the 
extent and character of the powers belonging to them and as 
based upon their position among governmental agencies. The 
legislature provides for the organization of municipal corpora- 
tions proper including cities, villages and towns; and of public 
quasi corporations which include, ordinarily, townships, counties, 
and other similar organizations. 1147 To each one of these, either 
by general legislation or by special charters, is given the power 
of regulating the use of public property within their jurisdic- 
tion, 1148 and the statement of this broad principle necessarily in- 
cludes a regulation of each separate act, of a license or grantee 
of the privilege of using that property or any portion of it for 
the purpose of constructing and operating street railway sys- 
tems, 1149 light, 1150 power, water, 1151 gas, 1152 telephone 1153 or tele- 



mission is unlawful. Common- 
wealth v. City of Frankfort, 92 Ky. 
149, 17 S. W. 287; St. Louis, I. M. 
& S. R. Co. v. Neely, 63 Ark. 636, 
40 S. W. 130, 37 L. R. A. 616; Elmer 
v. Board of Chosen Freeholders of 
Cumberland County, 57 N. J. Law, 
366, 30 Atl. 475; Thompson v. 
Ocean City R. Co., 60 N. J. Law, 
74, 36 Atl. 1087; Coney Island, Ft. 
H. & B. R. Co v. Kennedy, 15 App. 
Div. 588, 44 N. Y. Supp. 825; Dela- 
ware, L. & W. R. Co. v. City of 
Buffalo, 158 N. Y. 266, 53 N. E. 44; 
Wabash R. Co. v. City of Defiance, 
52 Ohio St. 262; Jones v. Erie &W. 
V. R. Co., 169 Pa. 333, 32 Atl.- 535; 
Potter v. Scranton Traction Co., 
176 Pa. 271, 35 Atl. 188. The right, 
however, of a street railway to use 
an ordinary and usual appliance 
upon its track to repair an over- 
head wire, is for a reasonable time 



paramount. San Antonio & A. P. 
R. Co. v. Bergsland, 12 Tex. Civ. 
App. 97, 34 S. W. 155; City of San 
Antonio v. San Antonio St. R. Co., 
15 Tex. Civ. App. 1, 39 S. W. 136. 

ii4c Barnes v. District of Colum- 
bia, 91 TJ. S. 540; Laramie County 
Com'rs v. Albany County, 92 U. S. 
310. Cooley, Const. Lim. (7th Ed.) 
p. 266, note 2, citing many cases. 
See 1 et seq. 

ii4~ City of Philadelphia v. Mc- 
Manes, 175 Pa. 28, 34 Atl. 331. 

ii48 Ghee v. Northern Union Gas 
Co., 158 N. Y. 510, 53 X. E. 692, 
reversing 34 App. Div. 551, 56 N. 
Y. Supp. 450; Cuyahoga County 
Com'rs v. Akron, B. & C. R. Co., 21 
Ohio Circ. R. 769. 

H49 Kennelly v. City of Jersey 
City, 57 N. J. Law, 293, 30 Atl. 531, 
26 L. R. A. 281. The word "may" 
means "must" thus rendering man- 



913 ITS CONTROL AND USE. 2133 

graph plants; whether those supplying any of these facilities or 
commodities engage in the business of furnishing them for public 
or private use or both. 

913. Character of right; regulation. 

Where municipal or public quasi corporations possess the 
power of regulation, an exercise of that power is legislative in 
its character and, therefore, discretionary. 1154 Its exercise is 
presumed to be within the powers of the corporation and in a 
lawful and proper manner and, as said in a Missouri case, 1155 
"In all matters pertaining to the police regulation of municipali- 
ties, their ordinances, being of the nature of legislative discre- 
tion, are prima facie reasonable." Thfe exercise of a discretion- 
ary power is not, in the absence of fraud or a gross abuse, ordi- 
narily subject to judicial control. 1156 This principle, however, 
does not apply to the result of such legislative discretion. 

Delegation of delegated powers. To municipal and public cor- 
porations is given by the state the right to exercise certain gov- 
ernmental powers. There is a delegation of this right by the 
state to its agent. Where these governmental powers or func- 
tions involve the exercise of judgment and discretion they can- 

datory that provision of Act 1893, "54 See 496 et seq., ante. 

3 (P. L. p. 241), relative to the 1155 City of St. Louis v. Western 

manner in which place shall be lo- Union Tel. Co., 63 Fed. 68, 5 Am. 

cated and strung wires for a city Electrical Cas. 50; City of Des 

railway. Columbia Elec. St. R., Moines v. Des Moines Water-works 

Light & Power Co. v. Sloan, 48 S. Co., 95 Iowa, 348, 64 N. W. 269. 

C. 21, 25 S. E. 898. The principle applied to a schedule 

use Electric Imp. Co. v. City and of water rates. Brown v. Chicago 

County of San Francisco, 45 Fed. Great Western R. Co., 137 Mo. 529, 

593, 13 L. R. A. 131; Norwalk & S. 38 S. W. 1099. 

N. Elec. Light Co. v. Common use Forman v. New Orleans & C. 

Council, 71 Conn. 381, 42 Atl. 82; R. Co., 40 La. Ann. 446, 4 So. 246; 

Ellinwood v. City of Reedsburg, 91 Gay v. Mutual Union Tel. Co., 12 

Wis. 131, 64 N. W. 885. Mo. App. 485; Consolidated Trac- 

iisi City of New Haven v. New tion Co. v. Elizabeth City, 58 N. 

Haven Water Co., 44 Conn. 105. J. Law, 619, 34 Atl. 146, 32 L. R. A. 

n-2 See Thornton, Oil & Gas, 170; Robinson v. Gilroy, 10 Misc. 

480. 205, 30 N. Y. Supp. 411; Sheehy v. 

1153 Hershfield v. Rocky Mouu- Clausen, 26 Misc. 269, 55 N. Y. 

tain Bell Tel. Co., 12 Mont. 102; Supp. 1000. Joyce, Elec. Law, 

Hudson Tel. Co. v. Jersey City, 49 220, and cases cited. 
N. J. Law, 303. 



PUBLIC PROPERTY. 



913 



not be delegated but must be exercised under the immediate 
authority of the corporation to whom they have been originally 
delegated by the state. 1157 The rule also obtains that govern- 
mental powers in whatever body the right to exercise which may 
exist cannot be surrendered or sold to corporate or natural pri- 
vate persons. 1158 Governmental powers are such as pertain to 
the sovereign to be exercised for the benefit of the public at 
large. It follows from an application of this principle that the 
right to regulate whether based upon the police power or that 
one which has for its purpose the protection and maintenance 
of public property to the uses for which acquired cannot be sur- 
rendered or disposed of by contract, license or grant to natural 
or corporate persons engaged in supplying the facilities or any 
of them under discussion. 1159 



115? City of Indianapolis v. In- 
dianapolis Gaslight Co., 66 Ind. 396. 

UBS Citizens' St. R. Co. v. Jones, 
34 Fed. 579; Logansport R. Co. v. 
City of Logansport, 114 Fed. 688; 
Florida Cent. & P. R. Co. v. Ocala 
St. & S. R. Co., 39 Fla. 306, 22 So. 
692; City of Louisville v. Wible, 
84 Ky. 290, 1 S. W. 605. "The 
power to protect, through her cit- 
ies and towns, and other public 
agencies, the public health, the 
public morals and the public safety, 
cannot be relinquished or surren- 
dered; for the government is bot- 
tomed upon the fundamental prin- 
ciple of the promotion of the peace, 
safety, happiness and security of 
its citizens. Therefore, any sur- 
render of its power to protect the 
public health, the public morals, 
the public peace, the public safety 
of the citizen, would violate this 
fundamental principle, and tend to 
revolution and anarchy. The 
power, therefore, cannot be surren- 
dered. The state, however, and its 
municipalities intrusted with the 
execution of this power, may pro- 
vide the means of protecting the 



public health. It is its duty to do 
so, and any means may be adopted 
that will effect that end, such as 
employing competent and trusty 
persons to take the matter in 
charge under the supervision and 
control of the State or City." 

State v. Minnesota Transfer R. 
Co., 80 Minn. 108, 83 N. W. 32; 
State v. Bell, 34 Ohio St. 194; City 
of Brenham v. Water Co., 67 Tex. 
542, 4 S. W. 143; Altgelt v. City of 
San Antonio, 81 Tex. 436, 13 L. R. 
A. 383. The Constitution of Texas, 
however, forbids the granting of 
exclusive franchises. North Springs 
Water Co. v. City of Tacoma, 21 
Wash. 517, 58 Pac. 773, 47 L. R. A. 
214. But see Western Sav. Fund 
Soc. v. City of Philadelphia, 31 Pac. 
185. See 112 and 115 et seq., 
ante. 

1159 Rogers Park Water Co. v. 
Fergus, 180 U. S. 624, affirming 178 
111. 571, 53 N. E. 363; Stone v. Mis- 
sissippi, 101 U. S. 817; Jackson 
County Horse R. Co. v. Interstate 
Rapid Transit R. Co., 24 Fed. 306; 
Nash v. Lowry, 37 Minn. 261; Flynn 
v. Little Falls Elec. & Water Co., 74 



914 



ITS CONTROL AND USE. 



2135 



914. Subways. 

As already suggested, the use of electricity for light and power, 
because of the high currents necessarily generated, is destructive 
to life and property, and the use and occupation of public high- 
ways by electric companies and also by telephone and telegraph 
companies in erecting poles and stringing wires may not be only 
an obstruction to legitimate travel, 1160 a nuisance because of their 
size and number, but also an interference in towns and cities in 
the work of extinguishing fires. It follows necessarily, therefore, 
that because of any or all of these reasons and conditions such 
companies may be required or given the option either when the 
license is granted to them for the use of the streets, or subse- 
quently, 1161 to lay their wires in underground conduits or sub- 
ways. Laws or ordinances when properly passed having this 
for their purpose will be regarded as reasonable and their re- 



Minn. 186; State v. St. Paul City R. 
Co., 78 Minn. 331, 81 N. W. 200; 
State v. Minnesota Transfer R. Co., 
80 Minn. 108, 83 N. W. 32, 50 L. R. 
A. 656; "West Point Water Power & 
Land Imp. Co. v. State, 49 Neb. 223, 
68 N. W. 507, reversing 49 Neb. 
218, 66 N. W. 6; Wabash R. Co. v. 
City of Defiance, 52 Ohio St. 262, 40 
N. E. 89. 

Cooley, Const. Lim. (7th Ed.) p. 
293. "Another and very important 
limitation which rests upon munici- 
pal powers is that they shall be ex- 
ecuted by the municipality itself, 
or by such agencies or officers as 
the statute has pointed out. So 
far as its functions are legislative, 
they rest in the discretion and 
judgment of the municipal body in- 
trusted with them, and that body 
cannot refer the exercise of the 
power to the discretion and judg- 
ment of its subordinates or of any 
other authority." 

"so see 908, ante. 

1161 Missouri v. Murphy, 170 U. 
S. 78; Id., 130 Mo. 10; Western 
Union Tel. Co. v. City of New York, 



38 Fed. 552, 3 L. R. A. 449; Hooper 
v. Baltimore City Pass. R. Co., 85 
Md. 509, 37 Atl. 359, 38 L. R. A. 
509; State v. Murphy, 134 Mo. 548, 
31 S. W. 784, 34 S. W. 51, 34 L. R. 
A. 369, 35 S. W. 1132; National Sub- 
way Co. v. City of St. Louis, 145 
Mo. 551, 46 S. W. 981, 42 L. R. A. 
113; Paterson R. Co. v. Grundy, 51 
N. J. Eq. 213; Trustees of Presby- 
terian Church v. State Board of 
Com'rs of Electrical Subways, 55 
N. J. Law, 436; United States Illu- 
minating Co. v. Hess, 19 N. Y. State 
Rep. 883, 3 N. Y. Supp. 777; Postal 
Tel. Cable Co. v. Grant, 58 Hun, 
603, 11 N. Y. Supp. 323; Electric 
Power Co. v. City of New York, 29 
Misc. 48, 60 N. Y. Supp. 590; People 
v. Squire, 107 N. Y. 593, 14 N. E. 
820; American Rapid Tel. Co. v. 
Hess, 125 N. Y. 641, 26 N. E. 919, 
13 L. R. A. 454; Empire City Sub- 
way Co. v. Broadway & S. A. R. 
Co., 159 N. Y. 555, 54 N. E. 1092; 
Kaukauna Elec. Light Co. v. City 
of Kaukauna, 114 Wis. 327, 89 N. 
W. 542. 



2136 



PUBLIC PROPERTY. 



914 



quirements enforced. 1162 The condition may be general and 
apply to all the streets or those within certain restricted limits 
which limits may be enlarged from time to time. 1163 There is 
authority to the effect that where the state has granted a license 
to use public highways for these purposes without this condition, 
that a subordinate municipal corporation cannot by ordinance 
unreasonably compel the placing of wires underground. 1184 A 
proper exercise of the police power it would seem would neces- 
sarily include the right of subordinate public corporations to 
protect the lives and property of their citizens irrespective of 
implied limitations existing in a license granted by the state. 



ii62 United States Elec. Lighting 
Co. v. Ross, 24 Wash. Law Rep. 
775. New York Laws 1884, c. 534; 
1885, c. 499; 1887, c. 716. 

lies United States Elec. Light Co. 
v. Ross, 24 Wash. Law Rep. 775. 

ii64 Northwestern Tel. Exch. Co. 
v. City of Minneapolis, 81 Minn. 
140, 53 L. R. A. 175, on reargument, 
150. The court in this case held 
that where, under the state law, 
telephone companies were given a 
right to erect poles and wires upon 
the public roads and highways, this 
included urban streets as well as 
rural roads and that the city of 
Minneapolis had no authority to ar- 
bitrarily order a removal of poles 
and wires from the surface, but 
could only compel telephone com- 
panies to put their wires in under- 
ground conduits when reason, con- 
venience or good government of 
the municipality required. In con- 
struing an ordinance granting a li- 
cense to the telephone company, 
the court said: "An ordinance of a 
municipality, surrendering a part 
of its powers to a corporation to se- 
cure and encourage works of im- 
provement, which require the out- 
lay of money and labor, to sub- 
serve the public interests of its cit- 
izens, when accepted and acted 



upon, becomes a contract between 
the city and the corporation which 
relied upon it, and the grantee can- 
not be arbitrarily deprived of the 
rights thus secured. It is pro- 
tected by the organic law which 
forbids the impairment of contracts 
or interference with vested rights 
without due process of law." In 
discussing the right of the city to 
enact ordinances the court said on 
pages 149: "We do not intend, in 
the disposition of this case, to 
abridge the wholesome right of mu- 
nicipal government to regulate 
their internal and domestic affairs 
within the limits essential to the 
welfare of their citizens. A city 
has the right to enact reasonable 
ordinances, and to enforce them; 
but it is the conservator, not the 
autocrat, of the police power. It 
may originate the exercise of its 
useful authority, and apply it by 
specific and valid regulations; but 
that exercise is not despotic, nor 
absolute, but is open to review, and 
an ordinance that upon its face is 
unreasonable and arbitrary is sub- 
ject to judicial examination. When 
it is not bounded by a fair and wise 
administration of municipal author- 
ity, but is unreasonable and arbi- 
trary, it will be declared void, and 



915 



ITS CONTROL AND USE. 



915. Rates for service rendered or commodities furnished. 

The right of the licensee to fix the rates at which its commodi- 
ties or services may be supplied and furnished may be limited 
by conditions in the license, grant or statutes. 1165 Or again, by 



the municipality restrained from 
its enforcement." 

lies Osborne v. San Diego Land & 
Town Co., 178 U. S. 22, affirming 76 
Fed. 319, construing Cal. Act 1885, 
p. 95, 5, giving the supervisors the 
power to fix water rates. Freeport 
Water Co. v. City of Freeport, 180 
U. S. 587, affirming 186 111. 179, 57 
N. E. 862; Danville Water Co. v. 
City of Danville, 180 U. S. 619, af- 
firming 186 111. 326, 57 N. E. 1129. 

Santa Ana Water Co. v. Town of 
San Buenaventura, 56 Fed. 339. 
A condition in respect to fixing 
rates applying to a water company 
has no application to individuals 
engaged in the same business and 
this exemption will apply to a cor- 
poration organized to succeed 
them. 

Manhattan Trust Co. v. City of 
Dayton, 59 Fed. 327. A provision 
for a maximum price is not a con- 
tract for any period but an exer- 
cise of the municipal power to reg- 
ulate and a limitation on the 
license granted. 

Cleveland City R. Co. v. City of 
Cleveland, 94 Fed. 385; Peoples' 
Gaslight & Coke Co. v. City of Chi- 
cago, 114 Fed. 384; Crosby v. City 
Council of Montgomery, 108 Ala. 
498, 18 So. 723. An ordinance es- 
tablishing water rates for domestic 
purposes is void for uncertainty in 
failing to designate what consti- 
tutes a domestic purpose. McFad- 
den v. County of Los Angeles, 74 
Cal. 571, 16 Pac. 397. Public au- 
thorities have no power to fix the 
water rate for a corporation organ- 



ized to furnish water to the stock- 
holders only. 

Leadville Water Co. v. City of 
Leadville, 22 Colo. 297, 45 Pac. 362; 
Trustees of Illinois Cent. Hospital 
for Insane v. City of Jacksonville, 
61 111. App. 199. Under Kurd's 
Rev. St. c. 24, sees. 254, 7, a city is 
not authorized to bind itself by con- 
tract to furnish water for a period 
of years at a fixed rate. Decatur 
Gas-Light & Coke Co. v. City of De- 
catur, 120 111. 67, 11 N. E. 406, afg. 
24 111. App. 544. 

Forman v. New Orleans & C. R. 
Co., 40 La. Ann. 446, 4 So. 246; 
Wabaska Elec. Co. v. City of Wy- 
more, 60 Neb. 199, 82 N. W. 626. In 
the absence of such a charter right 
a city of the second class has no 
authority to regulate the rates and 
charges of an electric light com- 
pany. 

Brush Elec. 111. Co. v. Consoli- 
dated Tel. & Electrical Subway Co., 
15 N. Y. Supp. 81. The board of 
electrical control have power to 
determine the reasonableness of 
rents for use of an electrical sub- 
way. State v. Cincinnati Gaslight 
& Coke Co., 18 Ohio St. 262; City 
of Allegheny v. Millville, E. & S. 
St. R. Co., 159 Pa. 411, 28 Atl. 202; 
Cleburne Water, Ice & Lighting 
Co. v. Cleburne, 13 Tex. Civ. App. 
141, 35 S. W. 733; Tacoma Gas & 
Elec. Co. v. City of Tacoma, 14 
Wash. 288, 44 Pac. 655. Act 1890, 
enables cities to adopt charters au- 
thorizing them to provide light by 
maintaining plants and to regulate 
and control the use thereof but 



2138 



PUBLIC PROPERTY. 



91& 



the universal rule which prevails that in the absence of express 
restrictions, rates charged must be reasonable. 1106 This latter 
principle is based upon the idea that persons or corporations 
carrying on the business of furnishing light, water, power or 
transportation are to be regarded as engaged in a quasi public 
business since the commodities they furnish are either necessary 
or convenient to the public convenience, health or welfare. 1167 



under this condition do not have 
the power to regulate the price to 
be charged for light by private 
companies under franchises granted 
them. Linden Land Co. v. Milwau- 
kee Elec. R. & Light Co., 107 Wis. 
493, 83 N. W. 851. 

iieo Santa Ana Water Co. v. Town 
of San Buenaventura, 56 Fed. 339; 
Cleveland Gaslight & Coke Co. v. 
City of Cleveland, 71 Fed. 610; 
Capital City Gaslight Co. v. City 
of Des Moines, 72 Fed. 829; City of 
Mobile v. Bienville Water Supply 
Co., 130 Ala. 379, 30 So. 445; Red- 
lands, L. & C. Domestic Water Co. 
v. City of Redlands, 121 Cal. 312, 
53 Pac. 791. Construing items for 
basis of reasonable charges. 

San Diego Water Co. v. City of 
San Diego, 118 Cal. 556, 50 Pac. 
633, 38 L. R. A. 460. A private 
corporation supplying water can- 
not be denied the privilege of being 
heard pending an investigation to 
the reasonableness of its charges 
by a city council. City of Rush- 
ville v. Rushville Natural Gas Co. 
(Ind.) 28 N. E. 853; Robria v. New 
Orleans & C. R. Co., 45 La. Ann. 
1368, 14 So. 214; In re Janvrin, 
174 Mass. 514, 55 N. E. 381, 47 L. 
R. A. 319. The power may be dele- 
gated to a court to determine the 
reasonableness of water rates. 
Goebel v. Grosse Pointe Water- 
works, 126 Mich. 307, 85 N. W. 744. 
Rates considered and held reason- 
able. 



Cline v. City of Springfield, 7 
Ohio N. P. 626. As incident to the 
right of municipal corporations to 
regulate the price of gas, a city has 
authority to require gas companies 
to furnish annually such data and 
necessary information exclusively 
in their possession as will enable 
it to fix the price intelligently. 
Brymer v. Butler Water Co., 179 
Pa. 331, 36 Atl. 249. A system of 
water rates that yields no more in- 
come than is required to maintain 
the plant, to pay fixed charges and 
operating expenses, to provide a 
suitable sinking fund for payment 
of debts and pay a fair profit to 
the stockholders on their invest- 
ment, is not unreasonable. City 
of Knoxville v. Knoxville Water 
Co., 107 Tenn. 647, 64 S. W. 1075, 
61 L. R. A. 888. 

HOT Rogers Park Water Co. v. 
Fergus, 180 U. S. 624, affirming 178 
111. 571, 53 N. E. 363; Gray v. West- 
ern Union Tel. Co., 87 Ga. 350, 14 
L. R. A. 95; People's Gas Light & 
Co. v. Hale, 94 111. App. 406; Cen- 
tral Union Tel. Co. v. Swoveland, 
14 Ind. App. 341, 42 N. E. 1035; 
Indiana Natural & Illuminating 
Gas Co. v. Anthony, 26 Ind. App. 
307, 58 N. E. 868; True v. Interna- 
tional Tel. Co., 60 Me. 9; Kennebec 
Water Dist. v. Waterville, 97 Me. 
185, 54 Atl. 6; Ellis v. American 
Tel. Co., 95 Mass. (13 Allen) 226; 
American Water Works Co. v. 
State, 46 Neb. 194, 64 N. W. 711,. 



915 



ITS CONTROL AND USE. 



2139 



The state or its subordinate agencies under these conditions re- 
tains the right to limit charges to those which are reasonable con- 
sidering all of the circumstances under which they are sup- 
plied, 1168 and to prevent discrimination. 1169 When a contract es- 
tablishes the rates which may be charged, this provision creates 
an obligation which cannot be destroyed or impaired by attempts 



30 L. R. A. 447; Griffin v. Golds- 
borro Water Co., 122 N. C. 206, 30 
S. B. 319, 41 L. R. A. 240; Pass- 
more v. Western Union Tel. Co., 78 
Pa. 242. 

lies Osborne v. San Diego Land 
& Town Co., 178 U. S. 22; San 
Diego Land & Town Co. v. Na- 
tional City, 74 Fed. 79; People's 
Gaslight & Coke Co. v. City of Chi- 
cago, 114 Fed. 384; Crosby v. City 
Council of Montgomery, 108 Ala. 
498, 18 So. 723; Spring Valley 
Water Works Co. v. City of San 
Francisco, 82 Cal. 286, 22 Pac. 910, 
1046, 6 L. R. A. 756; Creston Water- 
works Co. v. City of Creston, 101 
Iowa, 687, 70 N. W. 739; Hall v. 
City of Cedar Rapids, 115 Iowa, 
199, 88 N. W. 448; Rockland Water 
Co. v. Adams, 84 Me. 472, 24 Atl. 
840; In re Janvrin, 174 Mass. 514, 
55 N. E. 381, 47 L. R. A. 319. That 
section of the water supply com- 
pany, Statutes 1895, c. 488, is not 
unconstitutional as requiring the 
courts to exercise legislative func- 
tions because it provides for the 
determination of a reasonable 
water rate by certain designated 
judges. 

City of St. Louis v. Arnot, 94 Mo. 
275, 7 S. W. 15. Evidence of the 
cost of waterworks as a basis of 
water rates is irrelevant. Haver- 
hill Aqueduct Co. v. Page, 52 N. 
H. 472; Brymer v. Butler Water 
Co., 179 Pa. 331, 36 Atl. 249. A 
court under Pennsylvania Act 
April 29th, 1874, has no jurisdic- 
tion to prepare a general tariff of 



water rates where a charge of un- 
reasonableness is made. City of 
Knoxville v. Knoxville Water Co., 
107 Tenn. 647, 61 L. R. A. 888, aC- 
firmed 189 U. S. 434. Power to 
regulate rates by a municipal cor- 
poration must be expressly given. 
But see City of Noblesville v. No- 
blesville Gas & Improvement Co., 
157 Ind. 162, 60 N. E. 1032. 

ii69Lanning v. Osborne, 76 Fed. 
319; City of Mobile v. Bienville 
Water Supply Co., 130 Ala. 379, 30 
So. 445; Wagner v. City of Rock 
Island, 146 111. 139, 34 N. E. 545, 
21 L. R. A. 519. But rates based 
on the requirements of different 
consumers will not be regarded as 
discrimination. See, also, on this 
point, the following cases: She- 
ward v. Citizens' Water Co., 90 Cal. 
635, 27 Pac. 439; Silkman v. Yonk- 
ers Water Com'rs, 152 N. Y. 327, 
46 N. E. 612, 37 L. R. A. 827; Ex- 
change Bldg. Co. v. Roanoke Gas 
& Water Co., 90 Va. 83, 17 S. E. 
789; and State v. Gosnell, 116 Wis. 
606, 93 N. W. 542, 61 L. R. A. 33. 

Richmond Natural Gas Co. v. 
Clawson, 155 Ind. 659, 58 N. E. 104y, 
51 L. R. A. 744; Meridian Water- 
works Co. v. Schulherr (Miss.) 17 
So. 167; St. Louis Brewing Ass'n v. 
City of St. Louis, 140 Mo. 419, 37 
S. W. 525, 41 S. W. 911; Passmore 
v. Western Union Tel. Co., 78 Pa. 
242; Exchange & Bldg. Co. v. Roan- 
oke Gas & Water Co., 90 Va. 83, 17 
S. E. 789. Facts considered ana 
held not discriminating. 



2140 



PUBLIC PROPERTY. 



916 



to reduce the rates thus fixed during the term of the license or 
contract. 1170 

916. The right to change rates. 

It must not be forgotten, however, that the rendition of a serv- 
ice whether that of transportation or the supplying of some com- 
modity is property withjn the meaning of constitutional provis- 
ions relative to the taking of property without due process of 
law or without the payment, when it is private, as in the case 
noted for a public use, of full and ample -compensation. 1171 The 
rule, therefore, is well established that rates, though the right 
to change them exist, 1172 cannot be fixed so low as to effect 
a taking of property under any of the constitutional provisions 
mentioned ; 1173 neither can a contract provision fixing rates be 



n~o Santa Ana Water Co. v. 
Town of San Buenaventura, 56 
Fed. 339. See, also, authorities 
cited in the following section. Los 
Angeles City Water Co. v. City of 
Los Angeles, 88 Fed. 720; Agua 
Pura Co. v. City of Las Vegas, 10 
N. M. 6, 60 Pac. 208; City of Ash- 
land v. Wheeler, 88 Wis. 607, 60 N. 
W. 818. 

"71 San Diego Land & Town Co. 
v. National City, 174 U. S. 739, af- 
firming 74 Fed. 79; Central Trust 
Co. v. Citizen's St. R. Co., 80 Fed. 
218. Act reducing street railway 
fares held unconstitutional as spe- 
cial legislation. 

ii72Freeport Water Co. v. City 
of Freeport, 180 U. S. 587, affirming 
186 111. 179, 57 N. E. 862; Rogers 
Park Water Co. v. Fergus, 180 U. 
S. 624; Danville Water Co. v. City 
of Danville, 180 U. S. 619, 21 Sup. 
Ct. 505, affirming 186 111. 326, 57 
N. E. 1129. 

UTS San Diego Land & Town Co. 
v. National City, 174 U. S. 739, af- 
firming 74 Fed. 79; City of Los 
Angeles v. Los Angeles City Water 
Co., 177 U. S. 558, affirming 88 Fed. 



720; San Diego Land & Town Co. 
v. Jasper, 89 Fed. 2? 4. The actual 
present value of the property of 
the water company and not its cost 
is to be taken as a basis in ascer- 
taining a reasonable rate to be 
charged by it for water. Such a 
basis should provide for the de- 
preciation of the plant for profit 
to the owners. 

San Joaquin & K. R. Canal & Irr. 
Co. v. Stanislaus County, 90 Fed. 
516; Spring Valley Water Works 
Co. v. City of San Francisco, 82 
Cal. 286, 22 Pac. 910, 1046, 6 L. R. 
756; San Diego Water Co. v. City 
of San Diego, 118 Cal. 556, 50 Pac. 
663, 38 L. R. A. 460; People's Gas 
Lignt & Coke Co. v. Hale, 94 111. 
App. 406; City of Des MoLnes v. 
Des Moines Waterworks Co., 95 
Iowa, 348, 64 N. W. 269; Goebel v. 
Grosse Pointe Waterworks Co., 126 
Mich. 307, 85 N. W. 744; State v. 
Cincinnati Gaslight & Coke Co., 18 
Ohio St. 262. "The intention of the 
legislature in empowering city coun- 
cils to regulate the price of gas, 
was to limit incorporated gas com- 
panies to fair and reasonable prices 



916 



ITS CONTROL AND USE. 



2141 



broken by either party. 1174 The principles which sustain this 
rule have been well and frequently stated by the Supreme Court 
of the United States in a series of cases involving the establish- 
ment and change of rates of transportation as charged by com- 
mon carriers. 1175 In the San Diego case (174 U. S. 739) the Su- 



for the gas which they might fur- 
nish for public or private use. This 
discretionary power of regulation 
might have been vested elsewhere; 
but wherever vested it must be ex- 
ercised in good faith, for the pur- 
pose for which it was given. If, in 
the colorable exercise of this power, 
a majority of the members of the 
council, for a fraudulent purpose, 
combine to pass an ordinance fixing 
the price of gas at a rate at which 
they well know it cannot be manu- 
factured and sold without loss, 
such an ordinance, so fraudulently 
passed, would impose no obligations 
on the gas company intended to be 
affected thereby. And in a proceed- 
ing like the present, the good faith 
of the members of the city council 
who passed the ordinance may be 
inquired into." 

117 * City of Los Angeles v. Los 
Angeles City Water Co., 177 U. S. 
558, affirming 88 Fed. 720; Los 
Angeles City Water Co. v. City of 
Los Angeles, 103 Fed. 711; Lead- 
ville Water Co. v. City of Lead- 
ville, 22 Colo. 297, 45 Pac. 362; 
Westfield G. & M. Co. v. Menden- 
hall, 142 Ind. 538; City of Indian- 
apolis v. Consumers' Gas Trust Co., 
140 Ind. 107, 27 L. R. A. 514; City 
of Noblesville v. Noblesville Gas 
& Improvement Co., 157 Ind. 162, 60 
N. E. 1032; Agua Pura Co. v. City 
of Las v^egas, 10 N. M. 6, 60 Pac. 
208; Logan Natural Gas & Fuel 
Co. v. City of Chillicothe, 65 Ohio 
St. 186, 62 N. E. 122; Sewickly 



Borough School Dist. v. Ohio Val. 
Gas Co., 154 Pa. 539, 25 Atl. 868; 
City of Ashland v. Wheeler, 88 Wis. 
607, 60 N. W. 818. But see Free- 
port Water Co. v. City of Freeport,. 
180 U. S. 587, affirming 186 111. 179, 
57 N. E. 862; Danville Water Co. 
v. City of Danville, 180 U. S. 619, 
affirming 186 111. 326, 57 N. E. 1129, 

ii'S Stone v. Farmers' Loan & 
Trust Co., 116 U. S. 307; Chicago- 
M. & St. Paul R. Co. v. Minnesota, 
134 U. S. 418, reversing State v. 
Chicago, M. & St. Paul R. Co., 38- 
Minn. 281, 37 N. W. 782; Minne- 
apolis Eastern R. Co. v. Minnesota, 
134 U. S. 467, reversing 40 Minn. 
156, 41 N. W. 465; Reagan v. Far- 
mers' Loan & Trust Co., 154 U. S. 
362; Reagan v. Mercantile Trust 
Co., 154 U. S. 413; St. Louis & S. 
F. R. Co. v. Gill, 156 U. S. 649. 

Smyth v. Ames, 169 U. S. 466. 
The court in this case said: "The 
basis of all calculations as to the 
reasonableness of rates to be 
charged by a corporation main- 
taining a highway under legislative 
sanction must be the fair value 
of the property being used by 
it for the convenience of the 
public. And in order to ascer- 
tain that value, the original cost 
of construction, the amount ex- 
pended in permanent improve- 
ments, the amount and market 
value of its bonds and stock, the 
present as compared with the orgi- 
nal cost of construction, the prob- 
able earning capacity of the prop- 



2142 PUBLIC PROPERTY. 916 

preme Court of the United States in its opinion by Mr. Justice 
Harlan said in passing upon the question of reasonableness of 
rates: "That it was competent for the State of California to de- 
clare that the use of all water appropriated for sale, rental or 
distribution should be a public use and subject to public regula- 
tion and control and that it could confer upon the proper mu- 
nicipal corporation power to fix the rates of compensation to be 
collected for the use of water supplied to any city, county or 
town or to the inhabitants thereof, is not disputed, and is not, as 
we think, to be doubted. It is equally clear that this power could 
not be exercised arbitrarily and without reference to what was 
just and reasonable as between the public and those who appro- 
priated water and supplied it for general use; for the state can- 
not by any of its agencies, legislative, executive or judicial, with- 
hold from the owners of private property just compensation for 
its use. That would be a deprivation of property without due 
process of law. Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 
226; Smyth v. Ames, 169 U. S. 466. But it should also be re- 
membered that the judiciary ought not to interfere with the col- 
lection of rates established under legislative sanction unless they 
are so plainly and palpably unreasonable as to make their en- 
forcement equivalent to the taking of property for public use 
without such compensation as under all the circumstances is 
just both to the owner and to the public; that is, judicial inter- 
ference should never occur unless the case presents, clearly and 
beyond all doubt, such a flagrant attack upon the rights of prop- 
erty under the guise of regulations as to compel the court to say 
that the rates prescribed will necessarily have the effect to deny 
just compensation for private property taken for the public use. 
* * * The contention of the appellant in the present case is 
that in ascertaining what are just rates the court should take 
into consideration the cost of its plant; the cost per annum of 
operating the plant, including interest paid on money borrowed 
and reasonably necessary to be used in constructing the same; 
the annual depreciation of the plant from natural causes re- 
sulting from its use; and a fair profit to the company over and 
above such charges for its services in supplying the water to con- 
sumers, either by way of interest on the money it has expended 
for the public use, or upon some other fair and equitable basis. 
Undoubtedly, all these matters ought to be taken into considera- 
tion, and such weight be given them, when rates are being fixed, 



917, 918 IT S CONTROL AND USB. 2143 

as under all the circumstances will be just to the company and 
to the public. The basis of calculation suggested by the appel- 
lant is, however, defective in not requiring the real value of the 
property and the fair value in themselves of services rendered 
to be taken into consideration. What the company is entitled 
to demand, in order that it may have just compensation, is a 
fair return upon the reasonable value of the property at the 
time it is being used for the public. The property may have cost 
more than it ought to have cost, and its outstanding bonds for 
money borrowed and which went into the plant may be in excess 
of the real value of the property. So that it cannot be said that 
the amount of such bonds should in every case control the ques- 
tion of rates, although it may be an element in the inquiry as to 
what is, all the circumstances considered, just both to the com- 
pany and to the public." 

917. Contract obligation. 

Where a maximum charge is established in the grant of the 
license or privilege, the courts have repeatedly held that the right 
to collect this becomes then a contract obligation, 1170 and one 
which is protected by the federal constitution against ordinances, 
regulations or other action which seeks to effect a reduction in 
the rates thus lawfully permitted to be charged. 1177 

918. Assignment of privilege or license. 

The legal right of the grantee of a privilege of the character 
considered to assign or transfer by sale or through consolidation 

erty under particular rates pre- titled to demand is that no more 

scribed by statute, and the sum re- be exacted from it for the use of a 

quired to meet operating expenses, public highway than the services 

are all matters for consideration, rendered by it are reasonably 

and are to be given such worth." City of Detroit v. Detroit 

weight as may be just and Citizens' St. R. Co., 184 U. S. 368. 

right in each case. We do n^e Cleveland City R. Co. v City 

not say that there may not be of Cleveland, 94 Fed. 385; In re 

other matters to be regarded in Pryor, 55 Kan. 724, 41 Pac. 958, 29 

estimating the value of the prop- L. R. A. 398; Pingree v. Michigan 

erty. What the company is en- Cent. R. Co., 118 Mich. 314, 76 N. 

titled to ask is a fair return upon W. 635, 53 L. R. A. 274. 

the value of that which it employs n" City of Detroit v. Detroit Citi- 

for the public convenience. On the zens' St. R. Co., 184 U. S. 368; Ball 

other hand, what the public is en- v. Rutland R. Co., 93 Fed. 513. 



PUBLIC PROPERTY. 



918 



the rights which it may possess under its original lawful author- 
ity is largely dependent upon the language of the license or con- 
tract. 1178 Ordinarily the privileges granted are assignable to other 
persons or corporations with the same obligations for a period 
equal at least to the length of time which they may still be law- 
fully exercised. 1179 Privileges may be granted for a term beyond 



n"8 City of Los Angeles v. Los 
Angeles City Water Co., 177 U. S. 
558; Louisville Trust Co. v. City of 
Cincinnati, 73 Fed. 716; American 
Waterworks Co. v. Farmers' Loan & 
Trust Co., 73 Fed. 956; People v. 
Stanford, 77 Cal. 360, 18 Pac. 85, 
19 Pac. 693, 2 L. R. A. 92; Visalia 
Gas & Electric Light Co. v. Sims, 
104 Cal. 326, 37 Pac. 1042; San 
Luis Water Co. v. Estrada, 117 Cal. 
168; Huntting v. Hartford St. R. 
Co., 73 Conn. 179, 46 Atl. 824; Con- 
solidated Traction Co. v. Elizabeth 
City, 58 N. J. Law, 619, 32 L. R. 
A. 170; People v. O'Brien, m N. 
Y. 1, 18 N. E. 692, 2 L. R. A. 255. 
A street railway may, however, by 
statute, be prohibited from leasing 
its rights and franchises to any 
other company owning and oper- 
ating a parallel road. 

ii7o city of Detroit v. Detroit City 
R. Co., 60 Fed. 161; Africa v. City 
of Knoxville, 70 Fed. 729; Ameri- 
can Water-works Co. v. Farmers' 
Loan & Trust Co. (C. C. A.) 73 
Fed. 956; Los Angeles City Water 
Co..v. City of Los Angeles, 88 Fed. 
720; City of Austin v. Bartholomew 
(C. C. A.) 107 Fed. 349; San Luis 
Water Co. v. Estrada, 117 Cal. 168, 
48 Pac. 1075; Peoples' Gas Light & 
Coke Co. v. Hale, 94 111. App. 406; 
Western Paving & Supply Co. v. 
Citizens' St. R. Co., 128 Ind. 525, 
26 N. E. 188, 28 N. E. 88, 10 L. R. A. 
770. The purchaser of a street rail- 
way receiving from the city council 



the privileges and franchises be- 
longing to the former company is 
also obliged to assume the burdens 
accompanying it. Green v. City & 
Surburban R. Co., 78 Md. 294, 28 
Atl. 626; City of Lawrence v. In- 
habitants of Methuen, 166 Mass. 
206, 44 N. E. 247; Horsky v. Helena 
Consolidated Water Co., 13 Mont. 
229, 33 Pac. 689; State v. Laclede 
Gas-Light Co., 102 Mo. 472, 14 S. W. 
974, 15 S. W. 383; Borough of Wil- 
bur v. Trenton Pass. R. Co., 57 N. 
J. Law, 212, 31 Atl. 238; Consoli- 
dated Traction Co. v. Elizabeth 
City, 58 N. J. Law, 619, 34 Atl. 146, 
32 L. R. A. 170; Brinkerhoff v. 
Newark & H. Traction Co., 66 N. 
J. Law, 478, 49 Atl. 812; Cincinnati 
Inclined Plane R. Co. v. City of Cin- 
'cinnati, 52 Ohio St 609, 44 N. E. 
327; Borough of Sandy Lake v. 
Sandy Lake & S. Gas Co., 16 Pa. 
Super. Ct. 234; Borough of Easton 
v. Lehigh Water Co., 97 P. 554; City 
of Philadelphia v. Thirteenth & 
Fifteenth Sts. Pass. R. Co., 169 Pa. 
269, 33 Atl. 126; Columbia Water 
Power Co. v. City of Columbia, 5 
Rich. (S. C.) 225. 

Ft. Worth St. R. Co. v. Allen 
(Tex.) 39 S. W. 125. A street rail- 
road accepting its license on the 
condition that it will keep the 
streets in repair cannot relieve it- 
self from this liability by leasing 
its line to another company. Jen- 
kins v. Columbia Land & Imp. Co., 
13 Wash. 502, 43 Pac. 328; Com- 



919 



ITS CONTROL, AND USE. 



2145 



the corporate life of the licensee or grantee under this principle 
for in this case they may be assigned to interests lawfully suc- 
ceeding them. 1180 

919. Revocation or impairment of the grantt 

"Where a public corporation has the lawful power to grant a 
privilege or license to one to occupy public highways and there- 
after carry on the business thus authorized, such a grant becomes 
a contract and one which cannot be revoked or impaired without 
the consent of the interested party to whom the license is 
granted. 1181 The federal constitution protects as inviolable these 



mercial Elec. Light & Power Co. v. 
City of Tacoma, 17 Wash. 661, 50 
Pac. 592; Wright v. Milwaukee 
Elec. R. & Light Co., 95 Wis. 29, 69 
N. W. 791, 36 L. R. A. 47; but see 
Detroit v. Mutual Gas Light Co., 43 
Mich. 594, 5 N. W. 1039, where a 
condition prohibiting a combination 
with competing companies was sus- 
tained. See, also, Stafford v. Chip- 
pewa Val. Elec. R. Co., 110 Wis. 331, 
85 N. W. 1036, where a new fran- 
chise was held not subject to old 
conditions and regulations. Rich- 
mond Water-works Co. v. Vestry of 
Richmond, 45 Law J. Ch. 441; Id. 3 
Ch. Div. 82. See, also, City Water 
Co. v. State (Tex. Civ. App.) 33 S. 
W. 259. 

iiso city of Detroit v. Detroit 
Citizens' St. R. Co., 184 U. S. 368; 
Edison Elec. Light Co. v. New 
Haven Elec. Co., 35 Fed. 233; De- 
troit Citizens' St. R. Co. v. City of 
Detroit, 64 Fed. 628, 26 L. R. A. 
667; State v. Laclede Gas Light Co., 
102 Mo. 472, 14 S. W. 974, 15 S. W. 
383; State v. Payne, 129 Mo. 468, 31 
S. W. 797, 33 L. R. A. 576; People 
v. O'Brien, 111 N. Y. 1, 18 N. E. 
692, 2 L. R. A. 255. A franchise 
acquired is property which sur- 
vives the dissolution of corpora- 
Abb. Corp. Vol. Ill 11. 



tions by legislative act. Watson v. 
Fairmont & S. R. Co., 49 W. Va. 
528, 39 S. E. 193. A franchise to 
operate a street railway may be 
granted to an individual who may 
then make a valid assignment of 
the same with the consent of the 
council to a private corporation. 

iisi The Binghamton Bridge, 70 
U. S. (3 Wall.) 51; City R. Co. v. 
Citizens' St. R. Co., 166 U. S. 557; 
Citizens' St. R. Co. v. City R. Co., 
64 Fed. 647; City of Laredo v. 
International Bridge & Tramway 
Co., 66 Fed. 246; Africa v. City of 
Knoxville, 70 Fed. 729; City of 
Knoxville v. Africa (C. C. A.) 77 
Fed. 501; Southwest Missouri Light 
Co. v. City of Joplin, 101 Fed. 23, 
113 Fed. 817; Anoka Water-works, 
Electric Light & Power Co. v. 
City Anoka", 109 Fed. 580; Har- 
rell v. Ellsworth, 17 Ala. 576; Capi- 
tal City Light & Fuel Co. v. 
City of Tallahassee, 42 Fla. 462, 28 
S. 810; City of Los Angeles v. Los 
City Water Co., 61 Cal. 65; MeLeod 
v. Burroughs, 9 Ga. 213; Belle vue 
Water Co. v. City of Bellevue, 3 
Hasbrouk (Idaho) 739, 35 Pac. 693; 
People v. Chicago West Div. R. Co., 
18 111. App. 125; Peoples' Gas Light 
& Coke Co. v. Hale, 94 111. App. 406; 



2146 



PUBLIC PROPERTY. 



919 



contract rights for such they are. 1182 Questions concerning the 
revocation of a grant if properly presented become under these 
circumstances Federal questions and within the jurisdiction of 
the Federal courts as provided by law. 

Grant of same privilege to others. While it is true that a 
grant or license of the character under discussion cannot be ille- 
gally revoked or impaired, as above stated, yet, where the grant, 
privilege or license is not exclusive in its character, the grant 
of a similar privilege to others to engage in the same business or 
even the erection of a competing plant by the public corporation 
itself does not result in an impairment of the prior grant. 1183 



City of Belleville v. Citizens' Horse 
R. Co., 152 111. 171, 26 L. R. A. 681; 
Tudor v. Chicago & S. S. Rapid 
Transit R. Co., 154 111. 129, 39 N. E. 
136; City R. Co. v. Citizens' St. R. 
Co. (Ind.) 52 N. E. 157; Board of 
Com'rs of Hamilton County v. In- 
dianapolis Nat. Gas Co., 134 Ind. 
209, 33 N. E. 972; City of Newport 
v. Newport Light Co., 84 Ky. 166; 
City of Louisville v. Wible, 84 Ky. 
290; East Louisiana R. Co. v. City 
of New Orleans, 46 La. Ann. 526, 
15 So. 157; Vicksburg, S. & P. R. 
Co. v. Town of Monroe, 48 La. Ann. 
1102; Proprietors of Bridges v. Ho- 
boken Land & Imp. Co., 13 N. J. 
Eq. (2 Beasl.) 81; Theberath v. 
City of Newark, 57 N. J. Law, 309, 
30 Atl. 528; Suburban Elec. Light 
& Power Co. v. Inhabitants of East 
Orange (N. J. Eq.) 41 Atl. 865; 
Phillipsburg Elec. Lighting, Heat- 
ing & Power Co. v. Inhabitants of 
Phillipsburg, 66 N. J. Law, 505, 49 
Atl. 445; Agua Pura Co. of Las 
Vegas v. City of Las Vegas, 10 N. 
M. 6, 60 Pac. 208; City of New 
York v. New York & H. R. Co., 10 
Misc. 417, 31 N. Y. Supp. 147; 
People v. Deehan, 11 App. Div. 175, 
42 N. Y. Supp. 1071; Chenango 
Bridge Co. v. Lewis, 63 Barb- (N. 
Y.) Ill; New York Sanitary Utiliza- 
tion Co. v. Department of Public 



Health, 32 Misc. 577, 67 N. Y. Supp. 
324; Bennett Water Co. v. Borough 
of Millvale, 202 Pa. 616, 51 Atl. 
1098; Galveston & W. R. Co. v. 
City of Galveston (Tex. Civ. App.) 
37 S. W. 27. But see Wilmington 
City R. Co. v. Peoples' R. Co. (Del. 
Ch. App.) 47 Atl. 245; United Rail- 
ways & Elec. Co. v. Hayes, 92 Md. 
490, 48 Atl. 364. Under Baltimore 
City Charter of 1898 all grants and 
franchises are revocable. 

ii82 American Water-works & 
Guarantee Co. v. Home Water Co., 
115 Fed. 171; Little Falls Elec. & 
Water Co. v. City of Little Falls, 
102 Fed. 663; Cleveland City R. 
Co. v. City of Cleveland, 94 Fed. 
385; Mercantile Trust & Deposit 
Co. v. Collins Park & B. R. Co., 99 
Fed. 812; Chicago Municipal Gas 
Light & Fuel Co. v. Town of Lake, 
130 111. 42, 22 N. E. 616; State v. 
Laclede Gas Light Co., 102 Mo. 472, 
14 S. W. 974, 15 S. W. 383. See 
927, post. See, also, cases cited in 
preceding note. 

UBS Charles River Bridge v. War- 
ren Bridge, 11 Pet. (U. S.) 420; 
Skaneateles Water-works Co. v. 
Village of Skaneateles, 184 U. S. 
354, affirming 161 N. Y. 154, 55 N. 
E. 562; Bienville Water Supply Co. 
v. City of Mobile, 95 Fed. 539. 

Newburyport Water Co. v. City of 



920 ITS CONTROL AND USE. 

920. Forfeiture of grant. 



2147 



The license or grant may be made, however, dependent upon 
the performance of certain conditions by the licensee. If these 
conditions are not complied with, the license or privilege may be 
forfeited in the manner provided. 1184 The arbitrary right, how- 



Newburyport, 103 Fed. 584. "Where 
the state grants a franchise to 
a corporation, and subsequently 
grants a similar franchise to 
another corporation, the question 
of a taking may be considered from 
three points of view: Where the 
first grant is not exclusive, the 
subsequent grant is not a taking 
which entitles the owner of the 
first franchise to compensation. 
Where the first grant is exclusive, 
the grant of a rival franchise is a 
taking, and just compensation must 
be made. Where the first grant is 
exclusive, the grant of a similar 
franchise does not constitute a tak- 
ing requiring compensation, when 
the state, by its constitution of 
state law, has reserved to itself 
the power to repeal, alter, or amend 
charters granted by the legislature. 
Such reservation becomes a part of 
the charter of every corporation. 
The franchise rights granted to the 
company by its charter were not 
exclusive. This is not disputed. We 
have been presented the question 
whether the subsequent grant to 
the city of the right to build com- 
peting waterworks constituted a 
taking of the plaintiff's property or 
franchise. It is the settled law of 
this country, established by the de- 
cisions of the federal and state 
courts, that such a grant is not a 
taking of a former franchise, giving 
any right to compensation." 

Fall v. Sutter County, 21 Cal. 237; 
Hughes v. City of Momence, 163 



111. 535, 45 N. E. 300; Atlantic City 
Water-works Co. v. Consumers 
Water Co., 44 N. J. Eq. 427, 15 Atl. 
581; Inhabitants of Franklin v. 
Nutley Water Co., 53 N. J. Eq. 601; 
Oswego Falls Bridge Co. v. Fish, 1 
Barb. Ch. (N. Y.) 547. 

Smith v. Town of Westerly, 19 
R. I. 437, 35 Atl. 526. A town is 
not bound by a contract which ex- 
tends the authority conferred upon 
it by statute. Trent v. Cartersville 
Bridge Co., 11 Leigh (Va.) 529. 
See, also, the following cases con- 
sidering exclusive privileges and 
the protection to be granted them 
against competition : Hartford 
Bridge Co. v. Town of East Hart- 
ford, 16 Conn. 149; Enfield Toll 
Bridge Co. v. Hartford & N. H. R. 
Co., 17 Conn. 454; Washington 
Bridge Co. v. State, 18 Conn. 53; 
Hartford Bridge Co. v. Union Ferry 
Co., 29 Conn. 210. 

us* Louisville Trust Co. v. City 
of Cincinnati (C. C. A.) 76 Fed. 
296. A failure for twenty years to 
maintain a highway on certain 
streets included in a license will 
operate as an abandonment of the 
grant in respect to these streets. 
City of Chicago v. Chicago & W. 
I. R. Co., 105 111. 73. A street rail- 
way was granted the license to lay 
its tracks on the express condition 
that they should be constructed 
within a year. The failure to per- 
form this condition caused by in- 
junctions and interference of police 
officers acting under the direction 



2148 



PUBLIC PROPERTY. 



ever, of a municipal corporation to revoke or declare forfeited 
license rights does not ordinarily exist ; 1185 the reasonable rights 



of the mayor of the city cannot be 
made the occasion for a revocation 
of the license. New Orleans, C. & 
L. R. Co. v. City of New Orleans, 
44 La. Ann. 748, 11 So. 77. A city 
may be estopped to declare a for- 
feiture if it permits without in- 
terference a street railroad to con- 
struct its line in a forfeited street. 
West Springfield & A. St. R. Co. v. 
Bodurtha, 181 Mass. 583, 64 N. B. 
414; Whiting v. Village of New 
Baltimore, 127 Mich. 66, 86 N. W. 
403; St. Louis & M. R. Co. v. City 
of Kirkwood, 159 Mo. 239, 60 S. W. 
110, 53 L. R. A. 300. 

Kitchell v. Manchester Road Elec. 
R. Co., 79 Mo. App. 340. The failure 
on the part of a street railroad 
company to complete its road in 
conformance with or within the 
time limited by its franchise can- 
not be taken advantage of in a 
suit to enjoin its operation by a 
private individual unless he can 
snow peculiar injury to himself. 
Water Supply Co. of Albuquerque 
v. City of Albuquerque, 9 N. M. 441, 
64 Jfac. 96&. One of the conditions 
ot the grant under consideration 
was to furnish an agreed quantity 
ot water for "city purposes." The 
court held that the water company 
couid not be required to furnish 
water to the board of education for 
use in public schools under this 
condition as it was not a "city 
purpose." City of New York v. 
New York Refrigerating Const. Co., 
8 Misc. 61, 28 N. Y. Supp. 614. 
Village oi Bolivar v. Bolivar Water 
CO., 62 App. Div. 484, 70 N. Y. Supp. 
750; Burke v. Carbondale Traction 
Co., 3 LacK. Jur. (fa..) 297; Han- 



num v. Media, M., A. & C. Elec. R. 
Co., 200 Pa. 44, 49 Atl. 789; Town- 
ship of Plymouth v. Chestnut Hill 
& N. R. Co., 168 Pa. 181, 32 Atl. 19. 
The fact that th'3 company acted in 
good faith and that tl ? revocation 
caused it great hardship is a ground 
for permitting it to continue in its 
work. Wright v. Milwaukee Elec. 
R. & Light Co., 95 Wis. 29, 69 N. W. 
791, 36 L. R. A. 47. Conditions con- 
sidered and not held sufficient to 
constitute an abandonment so as to 
extinguish a franchise. Kaukauna 
Elec. Light Co. v. City of Kaukauna, 
114 Wis. 327, 89 N. W. 542. Condi- 
tion considered in this case a stipu- 
lation on the part of the company 
to bury its wires when required. 
State v. Janesville Water Power 
Co., 92 Wis. 496, 66 N. W. 512, 32 
L. R. A. 391. The doctrine of estop- 
pel may apply as against the city 
or a municipality in respect to an 
illegal act. 

Wright v. Milwaukee Elec. R. 
& Light Co., 95 Wis. 29, 69 N. W. 
791, 36 L. R. A. 47. Nonuser of a 
street railway franchise for a 
period of four years under the cir- 
cumstances in the case was here 
held not to constitute such an 
abandonment as to warrant its for- 
feiture. But see Bern v. Salt Lake 
City R. Co., 19 Utah, 46, 56 Pac. 
556, where it is held that a street 
railway company having operated 
its lines for a period of twenty- 
seven years and no proceedings 
having been taken to forfeit its 
franchise, all deficiencies will be 
considered to have been waived. 

UBS New Orleans Water-works 
Co. v. St. Tammany Water-works 



920 



ITS CONTROL AND USE. 



of the parties should be determined by a judicial tribunal hav- 
ing jurisdiction and before which the question is properly pre- 
sented. 1186 Grounds for a forfeiture may exist with reference to 
portions of a license or grant; where the unquestioned right of 
forfeiture exists as to these, the remaining parts of the grant 
will not be forfeited. 1187 Conditions ordinarily imposed espe- 
cially where the commodity supplied is water or light, are those 
which require the grantee to furnish a sufficient supply of the 
commodity or at a designated pressure 118S or one that reaches 



Co., 14 Fed. 194; Foster v. City of 
Joliet, 27 Fed. 899, affirmed 30 Law. 
Ed., 942; Citizens' St. R. Co. v. City 
of Memphis, 53 Fed. 715; Santa 
Rosa City R. Co. v. Central St. Co. 
(Cal.) 38 Pac. 986. A forfeiture of 
a street railroad franchise is not 
affected by the grant of the same 
rights by the city to another com- 
pany. City of Kankakee v. Kanka- 
kee Water Co., 38 111. App. 620. 
Where notice is required by con- 
tract, the giving of notice is neces- 
sary. Chicago Gen. R. Co. v. Chi- 
cago City R. Co., 62 111. App. 502; 
Township of Plymouth v. Chestnut 
Hill & N. R. Co., 168 Pa. 181, 32 Atl. 
19. The commonwealth alone can 
move for the forfeiture of a street 
railroad charter for a failure to 
construct its road within the time 
fixed by statute. But see Coverdale 
v. Edwards, 155 Ind. 374, 58 N. E. 
495. 

use streator v. Village of Ashta- 
bula, 98 Fed. 516; Citizens' Horse 
R. Co. v. City of Belleville, 47 111. 
App. 388; Peoples' Gas Light & 
Coke Co. v. Hale, 94 111. App. 406; 
Phillipsburg Elec. Lighting, Heat- 
ing & Power Co v. Inhabitants of 
Phillipsburg, 66 N. J. Law, 505, 49 
Atl. 445; Galveston & W. R. Co. v. 
City of Galveston, 90 Tex. 398, 39 
S. W. 96, 36 L. R. A. 33. But see 
Galveston City R. Co. v. Gulf City 
St. R. Co., 63 Tex. 529, which holds 



that the right to occupy streets 
given by a city to a street railway 
company is a mere license, not a 
contract, and upon abandonment 
the city can confer the right on 
another company without first pro- 
curing a decree of forfeiture. 

usiLevis v. City of Newton, 75 
Fed. 884. The rule applies also to 
a grant void in part because ultra 
vires. Illinois Trust & Sav. Bank 
v. Arkansas City (C. C. A.) 76 Fed. 
271, 34 L. R. A. 518; City of Green- 
ville v. Greenville Water-works Co., 
125 Ala. 625, 27 So. 764; City R. 
Co. v. Citizens' St. R. Co. (Ind.) 52 
N. E. 157; New York Cable Co. v. 
City of New York, 104 N. Y. 1. 

USB New Orleans Water-works 
Co. v. Rivers, 115 TJ. S. 674; Capital 
City Water Co. v. State, 105 Ala. 
406, 18 So. 62, 29 L. R. A. 743; City 
of Grand Haven v. Grand Haven 
Water-works Co., 99 Mich. 106, 57 
N. W. 1075; Burns v. City of Fair- 
mont, 28 Neb. 866, 45 N. W. 175; 
Borough of Almsted v. Morris Aque- 
duct, 46 N. J. Law, 495; Easton v. 
Lehigh Water Co., 97 Pa. 554; Du 
Bois Borough v. Du Bois City Wat- 
er-works Co., 176 Pa. 430, 35 Atl. 
248, 34 L. R. A. 92. If the contract 
provides for water from a certain 
source, no objection can be made 
if it proves inadequate. City of 
Sherman v. Connor, 88 Tex. 35, 29 
S. W. 1053. 



2150 



PUBLIC PROPERTY. 



920 



a certain standard of purity or quality. 1189 A failure to comply 
with such conditions may lead to a refusal to pay charges 119 
or it may be the occasion for a forfeiture or revocation of rights 
granted by the license or under the contract. 1191 The existence 
of circumstances, however, sufficient to warrant the latter action 
is a question for judicial determination unless by the .terms of 
the grant an arbitrary right is given to the public authorities. A 
substantial compliance as a rule is all that is required especially 
in respect to non-essentials or minor details, and the principle 
also obtains that a municipal corporation should not be permit- 
ted to make captious objections to either the quantity or quality 
of water for the sole purpose of depreciating the value of works 
which it has an option to purchase. 1192 A public corporation may 
also be estopped by acquiescence or waiver in certain conditions 
to claim a forfeiture. 1193 Ordinarily, the failure of a licensee to 



ii8 Capital City Water Co. v. 
State, 105 Ala. 406, 18 So. 62; Henry 
v. City of Sacramento, 116 Cal. 628, 
48 Pac. 728^ Winfield Water Cp. v. 
City of Winfield, 51 Kan. 104, 33 
Pac. 714; Light, Heat & Water Co. 
v. City of Jackson, 73 Miss. 598; 
Danaher v. City of Brooklyn, 119 
N. Y. 241, 23 N. E. 745, 7 L. R. A. 
592; Com. v. Towanda Water- 
works (Pa.) 15 Atl. 440; Brymer v. 
Butler Water Co., 172 Pa. 489; Pal- 
estine Water & Power Co. v. City 
of Palestine, 91 Tex. 540, 44 S. W. 
814, 40 L. R. A. 203. But see Grand 
Junction Water Co. v. City of Grand 
Junction, 14 Colo. App. 424, 60 Pac. 
196. 

1190 Bienville Water Supply Co. v. 
City of Mobile, 112 Ala. 260, 20 So. 
742, 33 L. R. A. 59; City of Kanka- 
kee v. Kankakee Water Co., 38 111. 
App. 620. The rule will not apply 
to water used, or for water fur- 
nished fire hydrants. See, also, as 
holding same, City Council of 
Montgomery v. Montgomery Water- 
works, 79 Ala. 233; Adrian Water- 
works Co. v. City of Adrian, 64 



Mich. 584, 31 N. W. 529. See cases 
cited in preceding notes. 

1191 Farmers' Loan & Trust Co. v. 
City of Galesburg, 133 U. S. 156; 
Capital City Water Co. v. State, 105 
Ala. 406, 18 So. 62, 29 L. R. A. 743; 
State v. New Orleans Water-works 
Co., 107 La. 1, 31 So. 395; State 
Trust Co. v. City of Duluth, 70 
Minn. 257, 73 N. W. 249; Palestine 
Water & Power Co. v. City of Pal- 
estine, 91 Tex. 540, 44 S. W. 814, 
40 L. R. A. 203. But see City of 
Walla Walla v. Walla Walla Water 
Co., 172 U. S. 1. 

1192 Cherryvale Water Co. v. 
Cherryvale, 65 Kan. 219, 69 Pac. 
176; Aurora Water Co. v. City of 
Aurora, 129 Mo. 540, 31 S. W. 946; 
Bennett Water Co. v. Borough of 
Millvale, 202 Pa. 616, 51 Atl. 1098. 

1193 Creston Water-works Co. v. 
City of Creston, 101 Iowa, 687, 70 
N. W. 739; Wiley v. Inhabitants of 
Athol. 150 Mass. 426, 23 N. E. 311, 
6 L. R. A. 342; City of Grand Rap- 
ids v. Grand Rapids Hydraulic Co., 
66 Mich. 606, 33 N. W. 749; Lamar 
Water & Elec. Co. v. City of Lamar, 



ITS CONTROL AND USB. 2151 

comply with conditions imposed in respect to quantity or quality 
cannot be taken advantage of by private consumers, 1194 but there 
are cases to the contrary. 1195 

921. Licenses or privileges of an exclusive nature. 

The licenses or privileges considered in the preceding sections 
are not those which grant to the licensee the exclusive right of 
carrying on the business or occupation designated within the 
limits of the corporation granting the privilege or making the 
contract. In the following sections will be considered grants, 
licenses or privileges by or through which private corporations 
or individuals secure the exclusive right to conduct the business 
named or supply commodities designated. The subject is readily 
divided into those grants which give an exclusive possession and 
occupation of the public highways for the purposes named and 
those which give the exclusive right of supplying certain com- 
modities, principally water and light, to the public corporation 
itself, or, in other words, an exclusive contract for the sale of a 
specified commodity. The presumption is against the existence 
of an exclusive grant. 1196 

140 Mo. 145, 39 S. W. 768. But see S. E. 290; Britton v. Green Bay & 

St. Cloud v. Water, Light & Power Ft. H. Water-works Co., 81 Wis. 48, 

Co., 88 Minn. 329, 92 N. W. 1112. 51 N. W. 84. 

1194 Fowler v. Athens City Water- 8 Pearsall v. Great Northern 
works Co., 83 Ga. 219, 9 S. E. 673; R. Co., 161 U. S. 646. "An exclusive 
Davis v. Clinton Water-works Co., right to enjoy a certain franchise 
54 Iowa, 59; Ferris v. Carson Water is never presumed, and unless the 
Co., 16 Nev. 44; Eaton v. Fairbury charter contain words of exclusion, 
Water-works Co., 37 Neb. 546, 56 it is no impairment of the grant 
N. W. 201, 21 L. R. A. 653; Gorrell to permit another to do the same 
v. Greensboro Water Supply Co., thing, although the value of the 
124 N. C. 328, 46 L. R. A. 513. Farn- franchise to the first grantee may 
ham on Waters, 1606. be wholly destroyed. This principle 

1195 Mott v. Cherryvale Water & was laid down at an early day in 
Mfg. Co.. 48 Kan. 152, 28 Pac. 989, the case of the Charles River 
15 L. R. A. 375; Duncan v. Owens- Bridge v. Warren Bridge, 11 Pet. 
boro Water Co., 12 Ky. L. R. 35, 420, and has been steadily adhered 
12 S. W. 557 ; Wainwright v. Queens to ever since." Gulf City St. R. 
County Water Co., 78 Hun, 146, 28 Co. v. Galveston City R. Co., 65 
N. Y. Supp. 987; Nichol v. Hunting- Tex. 502. See, also, 925, 926, post, 
ton Water Co., 53 W. Va. 348, 44 



2152 PUBLIC PROPERTY. 922 

922. Legal power to grant. 

The only legal objection worthy of consideration against the 
granting of an exclusive privilege is that there is thereby created 
a monopoly. 1197 The original idea of a monopoly is that of an 
exclusive privilege of trade in a particular commodity within 
designated limits and for a specified time or as it has been said, 
the word has 1198 "Reference to a branch of business in which all 
had a right to engage and in which, as a matter of fact, many 
had previously been engaged." An exclusive license or contract 
is not because of the grant, a monopoly, as originally understood 
and as properly defined because it invariably includes the carry- 
ing on of a business or an occupation which before was not one 
capable of being enjoyed as a matter of universal or common 
right. The granting of an exclusive privilege for a supply of 
water, light, power, telephone or telegraph service again is not 
to be regarded as a monopoly because while as to some of these 
occupations the manufacture of the commodity may be an ordi- 
nary business yet the selling and distribution to the public is 
quite unlike the handling of other products. 1199 The grant of a 
monopoly is usually regarded as illegal but, as already suggested, 
it has reference to the carrying on of a business or occupation 

us? Gale v. Village of Kalamazoo, Combinations, c. 1; Spelling, Trusts 
23 Mich. 344; Davenport v. Klein- & Monopolies, 98-105; City of 
schmidt, 6 Mont. 502, 13 Pac. 249; Walla Walla v. Walla Walla Water 
Coombs v. MacDonald, 43 Neb. 632, Co., 172 U. S. 1. Grant of a right to 
62 N. W. 41; City of Brenham v. a water company considered and 
Water Co., 67 Tex. 542, 4 S. W. 143; held not to create a monopoly. Gale 
Altgelt v. City of San Antonio, 81 v. Village of Kalamazoo, 23 Mich. 
Tex. 436, 17 S. W. 75, 13 L. R. A. 344. An exclusive privilege for the 
383. A taxpayer without showing erection of a market house and its 
that he can obtain water at better maintenance held to create a mo- 
terms is not a proper party to a nopoly and therefore invalid. Dav- 
proceeding to vacate a contract by enport v. Kleinschmidt, 6 Mont. 
a city with the water-works com- 502. Grant of an exclusive water 
pany which, it is claimed, is illegal contract held void as creating a 
because granting a monopoly. monopoly. 7 Bacon's Abr. 22. 

lies Beach, Monopolies, p. 360; n" New Orleans Gas Co. v. 

Greenhood, Pub. Pol. c. 5, pp. 672 Louisiana Light Co., 115 U. S. 650. 

et seq.; Bl. Com. 159; 3 Coke, Inst., See, also, cases cited generally 

181; Tiedeman, Limitations (2d under this and the following sec- 

ed.); Tiedeman, State & Fed. Con- tion. 
trol of Persons & Prop. 27; Eddy, 



922 



ITS CONTROL AND USE. 



2153 



which, because both of its character and the manner or place 
under which conducted should be enjoyed by all the citizens of a 
community as a matter of ancient and common right. 1200 The 
granting of an exclusive privilege for the sale and distribution 
of the commodities or service just suggested is not to be regarded 
as the grant of a monopoly because as to nearly all these occupa- 
tions they cannot be exercised or carried on by the public as a 
matter of common right. 1201 A franchise in the strict sense of the 



1200 Charles River Bridge v. War- 
ren Bridge, 11 Pet. (U. S.) 567. 
"A monopoly is that which has been 
granted without consideration; as 
a monopoly of trade ; or of the man- 
ufacture of any particular article, 
to the exclusion of all competition. 
It is withdrawing that which is a 
common right, from the community, 
and vesting it in one or more indi- 
viduals to the exclusion of all 
others." 

Gale v. Village of Kalamazoo, 23 
Mich. 344. The grant of an ex- 
clusive market privilege held a 
monopoly and therefore invalid. 
The court in its opinion by 
Judge Cooley said in part: 
If a municipal corporation can 
preclude itself in this manner 
from establishing markets wher- 
ever they may be thought de- 
sirable, or from abolishing them 
when found undesirable, it must 
have the right also to agree that it 
will not open streets, or grade or 
pave such as are opened, or intro- 
duce water for the supply of its 
citizens, except from some specified 
source, or buy fire engines of any 
other than some stipulated kind, 
or contract for any public work ex- 
cept with persons named; and if it 
might do these things it is easy to 
perceive that it might not be long 
before the incorporation itself, in- 
stead of being a convenience to its 



citizens, would have been used in 
various ways to compel them to 
submit to innumerable inconveni- 
ences, and would itself constitute 
a public nuisance of the most seri- 
ous and troublesome description. 
Individual citizens, looking only to 
the furtherance of their private in- 
terests, might, in various directions, 
engage it in permanent contracts, 
which, while ostensibly for the pub- 
lic benefit, should impose obliga- 
tions precluding further improve- 
ments and depriving the town pros- 
pectively of those advantages and 
conveniences which the munici- 
pality was created to supply, and 
without which it is worthless." 

Parfitt v. Ferguson, 3 App. Div. 
176, 38 N. Y. Supp. 466. A grant to 
a gas company that no other shall 
have the consent of the town to 
lay pipes or conductors during the 
term of the contract is void. 

Spelling, Trusts & Monopolies, 
100. "It is of the essence of a 
contract creating a monopoly that 
it confers upon one or more the ex- 
clusive privilege of doing that 
which others in the absence of such 
contract would have an equal right 
to do. It must be an invasion of 
a common right." 

1201 Citizens' Gas & Min. Co. v. 
Town of Elwood, 114 Ind. 332, 16 
N. E. 624. A municipal corporation 
may by its refusal to grant to 



2 15 A PUBLIC PROPERTY. 922 

vford, must be given to a person or group of persons by the sov- 
ereign before the business can be regarded even as a legal one. 1202 
Some of those mentioned above, it has been suggested, are to be 
regarded as an ordinary business but again they cannot be car- 
ried on because of the place and manner in which the business is 
usually conducted; the public highways are under the exclusive 
control of the sovereign or its delegated agencies and before the 
business can be carried on or conducted it is necessary to secure 
the permission of the state or of the sovereign for, as said by a 
case of the Supreme Court of the United States, 1203 in construing 
the grant of an exclusive right to manufacture and distribute 
gas; "Legislation of that character is not liable to the objection 
that it is a mere monopoly, preventing citizens from engaging in 
an ordinary pursuit or business, open as of common right to all, 
upon terms of equality; for, the right to dig up the streets and 
other public ways of New Orleans, and place therein pipes and 
mains for the distribution of gas for public and private use, is 
a franchise, the privilege of exercising which could only be 
granted by the state, or by the municipal government of that city 
acting under legislative authority." While, therefore, the grant 
of an exclusive right to lay gas pipes in the streets of a city may 
be void as in the nature of a monopoly on account of the exist- 
ence of the common right to manufacture gas, it will not be re- 
garded as a monopoly because of the place and the manner in 
vfhich the business must be necessarily conducted and carried 
on. 1204 Public authorities unquestionably have the power to grant 

other companies the special privi- except where the legislature au- 

lege of laying gas mains and pipes thorizes him to do so." Tiedeman, 

practically give to one this exclu- State & Fed. Control of Persons & 

sive right. Prop. 128. See, also, cases cited 

Elliott, Roads & St. (2d ed.) in this and the following section. 
748. "It is one thing to restrict 1202 New Orleans Gas Co. v. 
the exercise of common right and Louisana Light Co., 115 U. S. 650; 
quite another thing to create an Crescent City Gas Light Co. v. New 
extraordinary right or privilege and Orleans Gas Light Co., 27 La. Ann. 
make it exclusive. In granting a 138. See, also, authorities cited 
right to use a highway for a street generally in this and following sec- 
railway, the legislature makes that tion. 

lawful which, but for the grant, 1203 New Orleans Gas Co. v. 

would be unlawful, for no citizen Louisiana Light Co., 115 U. S. 650. 

has a right to use a highway in 120* Louisville Gas Co. v. Citizens' 

any other than the usual modes, Gas Co., 115 U. S. 683, reversing 81 



923 ITS CONTROL AND USE. 2155 

or deny at their discretion, with or without conditions, the right 
to individuals or private corporations to obstruct, tear down or 
occupy and use the public highways. A recent author 1205 has very 
concisely put the discussion and principle and the result of it as 
follows: "When, on the other hand, the state bestows upon one 
or more the privileges of pursuing a calling, or trade, the prose- 
cution of which is not a common natural right because it cannot 
be prosecuted without the aid of a legal privilege, a lawful mo- 
nopoly is created, but no right of the individual is violated; for, 
with the abolition of the monopoly thus created, would disappear 
all right to carry on the trade. The trade never existed before 
as a lawful calling. Such monopolies are valid, and free from 
all constitutional objections. The grant of exclusive franchises 
is a matter of relatively common occurrences, and is rarely ques- 
tioned." 

923. Same subject continued. 

In the absence of a constitutional prohibition, 1206 therefore, the 
principle almost universally obtains that under the conditions 
noted in the preceding section the state or subordinate agencies 
to whom the power has been granted can legally grant exclusive 
privileges, licenses or contracts because the rights of no private 
individual to carry on a lawful business have been by such ac- 
tion violated. 1207 It is clearly within the power of the legis- 

Ky. 263; City of Indianapolis v. In- New Orleans Gas Co. v. Louisiana 

dianapolis Gas Light & Coke Co., Light Co., 115 U. S. 650; Louisville 

66 Ind. 396; City of Newport v. Gas Co. v. Citizens' Gas Co., 115 

Newport Light Co., 84 Ky. 167; U. S. 683; Decatur Gas Light Co. 

Peoples' Gas Light Co. v. Jersey v. City of Decatur, 120 111. 67, 11 

City, 46 N. J. Law, 297; State v. N. B. 406, affirming 24 111. App. 544. 

Milwaukee Gas Light Co., 29 Wis. The validity of an ordinance giving 

460. See, also, New Orleans Gas a gas company the perpetual and 

Co. v. Louisiana Light Co., 115 U. exclusive right to furnish the city 

S. 650; Norwich Gas Light Co. v. with gas cannot be questioned in 

Norwich City Gas Co., 25 Conn. 19. an action by the gas company for 

1205 Tiedeman, State & Fed. Con- gas furnished the city under the 
trol of Persons & Prop. 127. ordinance. 

1206 Constitutional provisions in Baltimore Trust & Guarantee Co. 
Alabama, North Carolina, Ten- v. City of Baltimore, 64 Fed. 153; 
nessee and Texas. Birmingham & P. M. St. R. Co. v. 

1207 Richmond, F. & P. R. Co. v. Birmingham St. R. Co., 79 Ala. 465. 
Louisa R. Co., 13 How. (U. S.) 71; Constitutional provision prohibits 



2156 



PUBLIC PROPERTY. 



lature to determine who shall receive a franchise, in the strict 
sense of the word, under what terms, in what manner, and where 



the "making of any irrevocable 
grant of special privileges or immu- 
nities." California State Tel. Co. v. 
Alta Tel. Co., 22 Cal. 398; River- 
side Water Co. v. Sargent, 112 Cal. 
230; Des Moines St. R. Co. v. Des 
Moines B. St. R. Co., 73 Iowa, 513, 
33 N. W. 610, 35 S. W. 602; Teach- 
out v. Des Moines Broad-Gauge St. 
R. Co., 75 Iowa, 722, 38 N. W. 145; 
Hanson v. Hunter, 86 Iowa, 722; 
City of Newport v. Newport Light 
Co., 11 Ky. L. R. 840, 12 S. W. 1040; 
Smiley v. MacDonald, 42 Neb. 5, 60 
N. W. 355, 27 L. R. A. 540. An ex- 
clusive contract for the removal of 
garbage is not in conflict with con- 
stitution, art. 3, 15, forbidding the 
grant of exclusive privileges. Thrift 
v. Elizabeth City, 122 N. C. 31, 44 
L. R. A. 427; Cincinnati St. R. Co. 
v. Smith, 29 Ohio St. 291. The 
city council of Cincinnati have no 
power to pass an ordinance giving 
a street railroad the exclusive right 
to operate its road on the street. 

Luzerne Water Co. v. Toby Creek 
Water Co., 148 Pa. 568, 24 Atl. 117; 
City of Memphis v. Memphis Water 
Co., 52 Tenn. (5 Heisk.) 495. See 
art. 41 Alb. Law J. 104, by W. W. 
Thornton on validity of grant to ex- 
ercise an exclusive privilege in re- 
spect to the use of public highways. 
City of Memphis v. Memphis Water 
Co., 67 Tenn. (8 Baxt.) 587. 

City of Houston v. Houston City 
St. R. Co., 83 Tex. 548, 19 S. W. 
127. The right is clearly recognized 
by the Texas Constitution of any 
city to give its consent to the use 
of its streets by street railroads. 
Parkersburg Gas Co. v. City of 
Parkersburg, 30 W. Va. 435, 4 S. E. 



650. Neither under its charter nor 
the general statutes in relation to 
municipal corporations has the city 
of Parkersburg the power to grant 
a private corporation the exclu- 
sive privilege of using its streets 
and alleys for laying gas pipes and 
furnishing the city and its inhabi- 
tants with gas for thirty years. 

Clarksburg Elec. Light Co. v. 
City of Clarksburg, 47 W. Va. 739, 
35 S. E. 994, 50 L. R. A. 142. A 
grant may be made to an intended 
corporation to be subsequently or- 
ganized. Linden Land Co. v. Mil- 
waukee Elec. R. & Light Co., 107 
Wis. 493, 83 N. W. 851. A city may 
extend an existing franchise before 
its expiration. But see Board of 
Public Works of Denver v. Denver 
Tel. Co., 28 Colo. 401, 65 Pac. 35. 

Citizens' Gas Light Co. v. Louis- 
ville Gas Co., 81 Ky 263. The grant 
of an exclusive right to vend gas in 
a city is void under that provision 
of the Kentucky Constitution which 
declares that no set of men are en- 
itled "to exclusive public emolu- 
ments or privileges from the com- 
munity but in consideration of pub- 
lic services." New Orleans, C. & L. 
R. Co. v. City of New Orleans, 44 
La. Ann. 748, 11 So. 77. Under its 
charter the city of New Orleans 
has no power to grant an exclusive 
franchise to a street railroad com- 
pany. Washington Toll Bridge Co. 
v. Beaufort County Com'rs, 81 N. 
C. 491; Parkhurst v. Capital City 
R. Co., 23 Or. 471; Henderson v. 
Ogden City R. Co., 7 Utah, 199, 26 
Pac. 286. A grant by a munici- 
pality to a street railway company 
of the exclusive right to use its 



923 



ITS CONTROL AND USE. 



215T 



it shall be exercised. 1208 A grant or license though invalid either 
because of its exclusive character or the time of its existence 



streets is ultra vires. See, also, 
Beach, Monopolies, c. 8; Eddy, Com- 
binations, 17 et seq.; Spelling, 
Trusts & Monopolies, 102; Thorn- 
ton, Oil & Gas, 441 et seq. 

1208 Fanning v. Gregoire, 16 How. 
(U. S.) 524. Exclusive grant to 
operate a ferry construed, and 
while it is held that no court or 
board of county commissioners 
could subsequently grant another 
franchise, the legislature could do 
so. New Orleans Water-works Co. 
v. Rivers, 115 U. S. 674. "For, if 
it was competent for the state, be- 
fore the adoption of her present 
constitution, as we have held it 
was, to provide for supplying the 
City of New Orleans and its people 
with illuminating gas by means of 
pipes, mains, and conduits placed 
at the cost of a private corporation, 
in its public ways, it was equally 
competent for her to make a valid 
contract with a private corporation 
for supplying, by the same means, 
pure and wholesome water for like 
use in the same city. The right to 
dig up and use the streets and 
alleys of New Orleans for the pur- 
pose of placing pipes and mains to 
supply the city and its inhabitants 
with water is a franchise belonging 
to the state, which she could grant 
to such persons or corporations, 
and upon such terms, as she 
deemed best for the public inter- 
ests. And as the object to be at- 
tained was a public one, for which 
the state could make provision by 
legislative enactment, the grant of 
the franchise could be accom- 
panied with such exclusive privi- 
leges to the grantee, in respect of 



the subject of the grant, as in the 
judgment of the legislative depart- 
ment would best promote the public 
health and the public comfort, or 
the protection of public and private 
property." 

City of Laredo v. International 
Bridge & Tramway Co. (C. C. A.) 
66 Fed. 246; Taylor v. Montreal 
Harbour Com'rs, 17 Rap. Jud. Que. 
C. S. 275. Giving to a syndicate for 
a term of forty years the exclusive 
use and occupation of certain 
wharves for construction of eleva- 
tors and the carrying on the busi- 
ness of buying and shipping grain 
is not the grant of an illegal mo- 
nopoly. 

Evans v. Hughes County, 6 Dak. 
102, 50 N. W. 720. Political Code, 
c. 29, 54 & 55, relative to the 
grant of ferry licenses or leases to 
the highest bidder and which fur- 
ther provides that when any lease 
has been granted, no other shall be 
given within two miles thereof, is 
valid. Detroit Citizens' St. R. Co. 
v. City of Detroit, 110 Mich. 384, 
68 N. W. 304, 35 L. R. A. 859; Reid 
v. Trowbridge, 78 Miss. 542, 29 So. 
167. The objection that a contract 
or lighting streets is void because 
exclusive can only be invoked by 
the city or one seeking a similar 
privilege. 

Patterson v. Wollmann, 5 N. D. 
608, 33 L. R. A. 536; Cincinnati Gas 
Light & Coke Co. v. Village of 
Avondale, 43 Ohio St. 257, Ohio 
Rev. St. 2478, 2485, prohibit the 
giving of exclusive privileges to 
any person for the construction or 
extension of gas works. See, as 
holding the same. State v. Cincin- 



2158 



PUBLIC PROPERTY. 



may still be regarded as a binding contract or privilege for 
that length of time or to the extent that is within the legal power 
of the grantor to give. 1209 

924. Must be express authority. 

It is necessary, however, to enable a municipal corporation 
proper to grant an exclusive privilege or license that the author- 
ity should be expressly granted. 1210 The same rule applies to all 



nati Gas Light & Coke Co., 18 Ohio 
St. 262. See Spelling, Trusts & 
Monopolies, c 9. But see the fol- 
lowing cases where the right is 
modified because of constitutional 
provisions or for other reasons: 
Minturn v. LaRue, 23 How. (U. S.) 
435; City of Chicago v. Rumpff, 45 
111. 90; Long v. City of Duluth, 49 
Minn. 280, 51 N. W. 913; Janeway 
v. City of Duluth, 65 Minn. 292, 68 
N. W. 24; Davenport v. Klein- 
schmidt, 6 Mont. 502, 13 Pac. 249; 
Her v. Ross, 64 Neb. 710, 90 N. W. 
869, 57 L. R. A. 895; Atlantic City 
Water-works Co. v. Consumers' 
Water Co., 44 N. J. Eq. 427, 15 Atl. 
581. But see, in connection with 
this case, Atlantic City Water- 
works Co. v. Atlantic City, 48 N. 
J. Law, 378, and Logan v. Pyne, 43 
Iowa, 524. 

Brenham v. Brenham Water Co., 
7 Tex. 542, 4 S. W. 143. 

i209Levis v. City of Newton, 75 
Fed. 884. 

1210 Grand Rapids E. L. & P. Co. 
v. Grand Rapids E. L. & F. G. Co., 
33 Fed. 659. "To confer exclusive 
rights and privileges, either in the 
streets of a city or in the public 
"highways, necessarily involves the 
assertion and exercise of exclusive 
powers and control over the same. 
Nothing short of the whole sov- 
eign power of the state can confer 
exclusive rights and privileges in 
public streets, dedicated or ac- 



quired for public use, and which 
are held in trust for the public at 
large." Jackson County Horse R. 
Co. v. Interstate Rapid Transit R. 
Co., 24 Fed. 306; City of Detroit v. 
Detroit City R. Co., 56 Fed. 867; 
Logansport R. Co. v. City of Logans- 
port, 114 Fed. 688; In re Robinson 
& City of St. Thomas, 23 Ont. 489; 
Birmingham & P. M. St. R. Co. v. 
Birmingham St. R. Co., 79 Ala. 465; 
Norwich Gas Light Co. v. Norwich 
City Gas Co., 25 Conn. 19; Capital 
City Light & Fuel Co. v. City of 
Tallahassee, 42 Fla. 462, 28 So. 810; 
City of East St. Louis v. East St. 
Louis Gas Light & Coke Co., 98 111. 
415; Snyder v. City of Mt. Pulaski. 
176 111. 397, 52 N. E. 62, 44 L. R. A. 
407; Citizens' Gas & Min. Co. v. 
Town of Elwood, 114 Ind. 332, 16 
N. E. 624; City of Indianapolis v. 
Indianapolis Gas Light & Coke Co. 
66 Ind. 396; Rockland Water Co. v. 
Camden & R. Water Co., 80 Me. 
544, 1 L. R. A. 388; Detroit Citizens' 
St. R. Co. v. City of Detroit, 110 
Mich. 384, 68 N. W. 304, 35 L. R. 
A. 859. 

Long v. City of Duluth, 49 Minn. 
280, 51 N. W. 913. Dickinson, Judge, 
in the opinion said: "It is hardly 
necessary to advert in this connec- 
tion to the fact that municipal cor- 
porations have only such powers 
as are conferred by the legislature, 
and the same principle of strict 
construction which forbids that a 



924 



ITS CONTROL AND USE. 



2159 



subordinate public agencies. 1211 A state legislature, however, 
possesses the right to exercise all powers not prohibited by the 
constitution and an exclusive privilege may be granted by it even 
though the power does not affirmatively appear in the constitution 
which is its written source of authority and so long as it has not 
been there prohibited. 1212 

Not included within general grant to provide for comfort and 
welfare or regulate highways. It is customary in the grant of 
municipal charters in addition to specific grants of power to add 
what might be termed omnibus clauses which authorize in general 



direct grant of a franchise by the 
legislature be construed as exclu- 
sive, is applicable in the construc- 
tion of powers delgated to munici- 
pal corporations with respect to 
such matters. The authority con- 
ferred upon such governmental 
agencies of the state to grant ex- 
clusive franchises or privileges 
must be as explicit and free from 
doubt as would be required if the 
franchise were created directly by 
the legislature." 

Thompson v. Ocean City R. Co., 
60 N. J. Law, 74, 36 Atl. 1087; Syra- 
cuse Water Co. v. City of Syracuse, 
116 N. Y. 167, 22 N. E. 381, 5 L. R. 
A. 546; In re City of Brooklyn, 143 
N. Y. 596, 26 L. R. A. 270; Beekman 
v. -Third Ave. R. Co., 153 N. Y. 144, 
47 N. E. 277, affirming 13 App. 
Div. 279, 43 N. Y. Supp. 174; State 
v. Cincinnati Gas Light & Coke Co., 
18 Ohio St. 262; Smith v. Town of 
Westerly, 19 R. I. 437, 35 Atl. 526; 
Memphis City R. Co. v. City of 
Memphis, 44 Tenn. (4 Cold.) 406. 
A municipal corporation cannot by 
contract confer upon individuals 
the exclusive right of constructing 
and operating a street railway. 
Peoples' Pass. R. Co. v. City of 
Memphis (Tenn.) 16 S. W. 973; 
State v. City of Spokane, 24 Wash. 
53, 63 Pac. 1116. But see Wood v. 



City of Seattle, 23 Wash. 1, 62 Pac. 
135, 52 L. R. A. 369. Under Seattle 
city charter art. 4, 22, the city 
has no power to grant an exclusive 
franchise for the use of any street. 

1211 Jackson County Horse R. 
Co. v. Interstate Rapid Transit R. 
Co., 24 Fed. 306; Grand Rapids E. 
L. & P. Co. v. Grand Rapids E. E. 
L. & F. G. Co., 33 Fed. 659; Flor- 
ida Cent. & P. R. Co. v. Ocala St. 
& S. R. Co., 39 Fla. 306, 22 So. 692. 
The general power conferred upon 
cities and towns to regulate streets 
does not authorize a municipal cor- 
poration to vest by contract in a 
street railway corporation an ex- 
clusive right to construct railroad 
tracks in the streets of the city for 
a period of ten years. Westerly 
Water-works Co. v. Town of Wes- 
terly, 80 Fed. 611. An exclusive 
contract cannot be created by ac- 
quiesence in an existing condition. 
Wright v. Nagle, 48 Ga. 367. The 
principle applied to the grant of an 
exclusive right to build and main- 
tain a bridge. 

1212 Wilmington City Ry. Co. v. 
People's R. Co. (Del.) 47 Atl. 245. 
The power of the legislature to 
revoke an exclusive license is co- 
extensive with its power to grant 
and control the action of subordi- 
nate corporations. 



2160 PUBLIC PROPERTY. 924 

terms the public authorities to take such action as they deem, 
necessary to provide for the general comfort, welfare and safety 
of the community ; to regulate the use of public highways ; to ar- 
range for either a supply of water or light and in so doing to con- 
sent to the construction of the facilities which are necessary to 
accomplish these purposes. It has been repeatedly held that 
through the grant of any or all of these powers, a public corpora- 
tion has no legal authority to give an exclusive license, privilege 
or contract to private persons, natural or artificial, for the use of 
the public highways and erection of a plant for the manufacture 
or distribution or both of these modern necessities. This rule has 
been well established by the great weight or authority. 1213 The 
principle is also applied to the grant of privileges or licenses 
not exclusive in their character but which serve to furnish a sup- 
ply of these same commodities or other service. 1214 In previous 
sections 1215 it has been stated that the modern tendency of the 
state is to give subordinate public corporations a large degree of 
control over public property within their jurisdiction and to re- 
quire the consent of the public authorities before private per- 
sons engaged in the business of supplying water, light, power or 
telephone, telegraph or transportation service, can legally occupy 
public highways or lawfully carry on their business. Even the 

1213 American Water-works Co. v. v. Water Co., 67 Tex. 542, 4 S. W. 
Farmers' Loan & Trust Co., 73 Fed. 143. But see Andrews v. National 
956, 20 C. C. A. 133; Saginaw Gas Foundry & Pipe Works (C. C. A.) 
Light Co. v. City of Saginaw, 28 61 Fed. 782; Jacksonville Elec. 
Fed. 529; State v. Towers, 71 Conn. Light Co. v. City of Jacksonville, .36 
657, 42 Atl. 1083; Village of Ladd Fla. 229, 18 S. E. 677, 30 L. R. A. 
v. Jones, 61 111. App. 584; Green- 540; Heilbron v. City of Cuthbert, 
ville Water- works Co. v. City of 96 Ga. 312, 23 S. E. 206; Hay v. 
Greenville (Miss.) 7 So. 409; Town City of Springfield, 64 111. App. 
of Kirkwood v. Meramec Highlands 671; Arbuckle-Ryan Co. v. City of 
Co., 94 Mo. App. 637, 68 S. W. 761; Grand Ledge, 122 Mich. 491, 81 N. 
Howell v. City of Millville, 60 N. W. 358; Oakley v. City of Atlantic 
J. Law, 95, 36 Atl. 691; Richmond City, 63 N. J. Law, 127, 44 Atl. 651; 
County Gas Light Co. v. Town of Tuttle v. Brush Elec. 111. Co., 50 N. 
Middletown, 59 N. Y. 228; In re Y. Super. Ct. (18 J. & S.) 464; Ellin- 
City of Brooklyn, 143 N. Y. 596, 38 wood v. City of Reedsburg, 91 Wis. 
N. E. 983, 26 L. R. A. 270; Smith v. 131, 64 N. W. 885. 
Town of Westerly, 19 R. I. 437, 35 121* See authorities cited under 
Atl. 526; Arnold v. Price, 19 R. I. 897, note 1059. 
437, 35 Atl. 526; City of Brenham 1215 See 897, 898, ante. 



925 



ITS CONTROL, AND USE. 



2161 



existence of this principle does not prevent the application of the 
rule above given. 

925. Manner in which granted. 

The power to grant an exclusive privilege or license must not 
only be expressly given as stated in the last section but the man- 
ner in which it is granted must strictly comply with the terms of 
that authority. The grant under such circumstances is a legis- 
lative and discretionary act and controlled by the various princi- 
ples heretofore considered under the subject of legislative bodies 
and their action. 1216 An exclusive grant to be valid must not 
only, therefore, be authorized by the legislature but must also 
successfully pass all tests which determine the legality of legis- 
lation and which include a consideration in addition of the power 
to pass and determine the validity of specific action and also its 
sub j ect-matter. 1217 



i2i6 Louisville Bagging Mfg. Co. 
v. Central Pass. R. Co., 95 Ky. 50; 
Consumers' Gas & Elec. Co. v. Con- 
gress Spring Co., 61 Hun, 133, 15 
N. Y. Supp. 624; Patton v. City of 
Chattanooga, 108 Tenn. 197, 65 S. 
W. 414. Private citizens suffering 
no injury not in common with the 
public generally have no status to 
call on the court to determine the 
validity of an ordinance granting 
an exclusive license to a telephone, 
telegraph or electric company. 

City of Houston v. Houston City 
St. R. Co., 83 Tex. 548, 19 S. W. 
127; City of Brenham v. Water Co., 
67 Tex. 542, 4 S. W. 143. "The 
validity of every contract a munici- 
pal corporation may assume to 
make must at least depend upon 
the validity of the law or munici- 
pal ordinance under which it is 
made. If the legislature had ex- 
pressly authorized the making of 
the contract under consideration, it 
would doubtless be binding, unless 
there be some constitutional objec- 
Abb. Corp. Vol. Ill 13. 



tion to such a law a matter which 
will be considered hereafter and 
the ordinance could not be held to 
operate considered with its accept- 
ance as a contract, as a surrender 
of any power the legislature in- 
tended the city government to ex- 
ercise at all times. The question 
would then have been determined 
by a power superior to that of the 
municipality a power from which 
it derives all the power it has, and 
even its existence as a corpora- 
tion." Allen v. Clausen, 114 Wis. 
244, 90 N. W. 181. See 497 et seq. 
1217 Grand Rapids E. L. & P. Co. 
v. Grand Rapids E. E. L. & F. G. Co. 
33 Fed. 659; Citizens' Water Co. v. 
Hydraulic Co., 55 Conn. 1, 10 Atl. 
170; Cedar Rapids Water Co. v. 
Cedar Rapids, 118 Iowa, 234, 91 N. 
W. 1081; Helena Consol. Water Co. 
v. Steele, 20 Mont. 1, 49 Pac. 382, 
37 L. R. A. 412; Warsaw Water- 
works Co. v. Village of Warsaw, 16 
App. Div. 502, 44 N. Y. Supp. 876; 
Auchincloss v. Metropolitan El. R. 



2162 



PUBLIC PROPERTY. 



925 



Must expressly appear. It has already been stated that the 
presumption of law is against the existence of an exclusive grant 
or privilege and one must, therefore, be expressly granted before 
exclusive privileges be claimed under it. 1218 Judge Brewer while 
on the Circuit Court, in a Kansas case, 1219 said: "And if a direct 
grant from a legislature carries no implication of exclusiveness, 
why should it be presumed that the legislature intended to vest 
in a city the power to give exclusive privileges, when it has in 
terms granted no such power? Will the power to create mo- 
nopolies be presumed unless it is expressly withheld? That 
would reverse the settled rule of construction, which is that noth- 



Co., 69 App. Div. 63, 74 N. Y. Supp. 
534; Baily v. City of Philadelphia, 
184 Pa. 594, 39 Atl. 494, 39 L. R. 
A. 837; Wood v. City of Seattle, 23 
Wash. 1, 62 Pac. 135, 62 L. R. A. 
369. The publication of a proposed 
ordinance granting a street railway 
franchise is sufficient though it 
does not contain the names of the 
actual grantees or the amount of 
their bid. See 497 et seq. See, 
also, Culbertson v. City of Fulton, 
127 111. 30; Adrian Water-works Co. 
v. City of Adrian, 64 Mich. 584 ; City 
of Grand Rapids v. Grand Rapids 
Hydraulic Co., 66 Mich. 606; Atlan- 
tic City Water-works Co. v. Read, 
50 N. J. Law, 665. 

1218 Freeport Water Co. v. City of 
Freeport, 180 U. S. 587, affirming 
186 111. 179, 57 N. E. 862; Jackson 
County Horse R. Co. v. Interstate 
Rapid Transit R. Co., 24 Fed. 306; 
Oakland R. Co. v. Oakland, B. & F. 
V. R. Co., 45 Cal. 365; Capital City 
X,ight & Fuel Co. v. City of Talla- 
hassee, 42 Fla. 462, 28 So. 810; 
Carlysle Water, Light & Power Co. 
v. City of Carlysle, 31 111. App. 325. 
An exclusive contract though ultra 
vires is not void but voidable so far 
as it is executory. 

City of Rushville v. Rushville 



Natural Gas Co., 132 Ind. 575, 28 N. 
E. 853, 15 L. R. A. 321; City of 
Vincennes v. Citizens' Gas Light 
Co., 132 Ind. 114, 31 N. E. 573, 16 
L. R. A. 485; North Baltimore City 
R. Co. v. City of Baltimore, 75 
Md. 247, 23 Atl. 470; Detroit Citi- 
zens' St. R. Co. v. City of Detroit, 
110 Mich. 384, 68 N. W. 304, 35 L. 
R. A. 859. 

Tallon v. City of Hoboken, 60 N. 
J. Law, 212, 37 Atl. 895. The same 
principle applied distinguishing as 
between a street, steam or commer- 
cial railroad. Hackensack Water 
Co. v. City of Hoboken, 51 N. J. 
Law, 220, 17 Atl. 307; Syracuse 
Water Co. v. City of Syracuse, 116 
N. Y. 167, 22 N. E. 381, 5 L. R. A. 
546. A city council having the 
power to make ordinances, rules, 
regulations and by-laws for light- 
ing the streets and public buildings 
of a city and to supply the city 
with water is not authorized to 
grant exclusive privileges. In re 
City of Brooklyn, 143 N. Y. 596, 38 
N. E. 983, 26 L. R. A. 270; Center 
Hall Water Co. v. Borough of Cen- 
ter Hall, 186 Pa. 74, 40 Atl. 153. 

1219 Jackson County Horse R. Co. 
v. Interstate Rapid Transit R. Co., 
24 Fed. 306. 



925 ITS CONTROL AND USE. 2163 

ing in the way of exclusiveness or monopoly passes, unless ex- 
pressly named. It will not do to say that the grant of general 
supervision and control of the streets carries with it, by implica- 
tion, the power to give exclusive privileges; for that grant im- 
plies a vesting in the city of continuous control. It is no author- 
ity for surrendering its constant supervision and management 
to any other corporation or individual. It implies that the city 
to-day, to-morrow, and so long as the grant remains, shall exer- 
cise its constant judgment as to the needs of the public in the 
streets, and not that it may to-day surrender to an individual 
or to a private corporation the right of determining a score of 
years hence what the public may then need. The city may to-day 
determine that one street railroad will answer all t&e wants of 
the public, and so give the privilege of occupying the streets to 
but a single company. Ten years hence its judgment may be that 
two railroads are needed. Where is the language in the charter 
which restricts it from carrying such judgment into effect by 
giving a like privilege to a second company? It is doubtless true, 
as counsel say, that capital is timid, and will not undertake such 
enterprises without abundant guaranties and undoubted security. 
But this suggests matters of policy, and presents considerations 
for the legislature. It does not aid in determining what powers 
have been granted, or in the construction of charters or ordi- 
nances. When the legislature deems that the public interests 
require that cities should be invested with power to grant ex- 
clusive privileges, it will say so in unmistakable terms, as it al- 
ready has in some instances. Till then courts must deny the pos- 
session of such power." And a leading case 1220 in the Supreme 
Court of the United States on the subject of the power of a city 
to grant exclusive privileges and contract for rates states the 
rule as follows: "The rule which governs interpretation in such 
cases has been often declared. We expressed it, following many 
prior decisions, in Detroit Citizens' St. R. Co. v. Detroit R. Co., 
171 U. S. 48, to be that the power of a municipal corporation to 
grant exclusive privileges must be conferred by explicit terms. 
If inferred from other powers, it is not enough that the power is 
convenient to other powers; it must be indispensable to them." 

1220 Freeport Water Co. v. City ing 186 111. 179, 57 N. E. 862. 
of Freeport, 180 U. S. 587, affirm- 



PUBLIC PROPERTY 



The absence of language giving rights of an exclusive character 
operates against such a claim 1221 although there are some cases 
which hold that through the grant of a license or privilege there 
arises an implied contract on the part of the city granting it not 
again to exercise its powers in this respect until the former ex- 
pires. 1222 

926. Grant strictly construed. 

The courts do not regard with favor grants for the exclusive- 
occupation and use of public highways or contracts for the ex- 
clusive sale to the public of a particular commodity. The rule 
of strict construction, therefore, applies to all grants, licenses or 
contracts of this character and unless a right claimed clearly ap- 
pears, its existence will be denied. 1223 This rule will apply not 



1221 Long Island Water Supply 
Co. v. City of Brooklyn, 166 U. S. 
685; Skaneateles Water- works Co. 
v. Village of Skaneateles, 184 U. S. 
354, affirming 161 N. Y. 154, 55 N. 
E. 562. "There is no implied con- 
tract in an ordinary grant of a 
franchise, such as this, that the 
grantor will never do any act by 
which the value of the franchise 
granted may in the future be re- 
duced. Such a contract would be 
altogether too far reaching and im- 
portant in its possible conse- 
quences in the way of limitation of 
the powers of a municipality, even 
in matters not immediately con- 
nected with water, to be left to 
implication. We think none such 
arises from the facts detailed." 

Westerly Water-works Co. v. 
Town of Westerly, 80 Fed. 611; 
Cunningham v. City of Cleveland, 
98 Fed. 657; North Baltimore Pass. 
R. Co. v. North Ave. R. Co., 75 Md. 
233; Atlantic City Water Co. v. Con- 
sumers' Water Co., 51 N. J. Law, 
420, 17 Atl. 824; In re City of Brook- 
lyn, 143 N. Y. 596, 38 N. E. 983, 26 



L. R. A. 270; Boyertown Water Co. 
v. Borough of Boyertown, 200 Pa. 
394, 50 Atl. 189; City of Brenham 
v. Water Co., 67 Tex. 542, 4 S. W. 
143; City of Houston v. Houston 
City St. R. Co., 83 Tex. 548, 19 S. 
W. 127; Ogden City R. Co. v. Ogden 
City, 7 Utah, 207, 26 Pac. 288. 

1222 Fidelity Trust & Safety Vault 
Co. v. Mobile St. R. Co., 53 Fed. 
687; Citizens' Water Co. v. Bridge- 
port Hydraulic Co., 55 Conn. 1 ; Ty- 
rone Gas & Water Co. v. Borough of 
Tyrone, 195 Pa. 566, 46 Atl. 134; 
Rutland Elec. Light Co. v. Marble 
City Elec. Co., 65 Vt. 377, 26 Atl. 
635, 20 L. R. A. 821. An electric 
light company not having an exclu- 
sive contract to erect poles and 
string wires still has such a vested 
right to use its appliances that they 
cannot be infringed by another 
company stringing wires under a 
subsequent contract with the city. 

1223 stein v. Bienville Water Sup- 
ply Co., 141 U. S. 67, affirming 34 
Fed. 145; Bartram v. Central Turn- 
pike Co., 25 Cal. 283; Haines v, 
Crosby, 94 Me. 212, 47 Atl. 137 ~ 



926 



ITS CONTROL, AND USE. 



2165 



only to the existence of the exclusive privilege or contract itself, 
but also to any of the minor details or conditions of the instru- 
ment. 1224 An exclusive grant in case of doubt, to state the rule in 
another way, is construed against the grantee in favor of the 
grantor. 1225 The principles of this section are not applied, how- 
ever, to such an extent as to illegally deprive a grantee or licensee 



North Baltimore Pass. R. Co. v. 
North Ave. R. Co., 75 Md. 233; Wes- 
tern Union Tel. Co. v. Guernsey & 
S. Elec. Light Co., 46 Mo. App, 120. 
The grant of the right to erect 
poles and wires for supplying elec- 
tric light does not impair the rights 
of a telegraph company under a 
prior grant. City of Plattsburg v. 
Peoples' Tel. Co., 88 Mo. App. 306. 
See, also, 902, ante. 

1224 Omaha Horse R. Co. v. Cable 
Tramway Co., 30 Fed. 324; Stein v. 
Bienville Water Supply Co., 34 Fed. 
145; Birmingham Traction Co. v. 
Southern Bell Telep. & Tel. Co., 119 
Ala. 144, 24 So. 731. Considering 
right to acquire through prior oc- 
cupancy of a street by a telephone 
company as against an electric 
railway company. Reed v. Hanger, 
20 Ark. 625; Los Angeles Water 
Co. v. City of Los Angeles, 55 Cal. 
176; Tuebner v. California St. R. 
o., 66 Cal. 171; City of Newport v. 
Newport Light Co., 11 Ky. L. R. 
840, 12 S. W. 1040; Passaic Water 
Co. v. City of Paterson, 65 N. J. 
Law, 472, 47 Atl. 462. Ordinance 
construed and right of a private 
company to contract directly with 
the inhabitants of the town denied. 
Bly v. White Deer Mountain Water 
Co., 197 Pa. 80, 46 Atl. 929. See 
Joyce, Electric Law, 165 et seq. 

"23 Knoxville Water Co. v. City 
of Knoxville. The U. S. Supreme 
court October Term, 1905 (26 Sup. 
Ct. 224): "It is, we think, impor- 



tant that the courts should adhere 
firmly to the salutory doctrine 
underlying the whole law of mu- 
nicipal corporations and the doc- 
trines of the adjudged cases, that 
grants of special privileges affect- 
ing the general interests are to be 
liberally construed in favor of the 
public, and that no public body, 
charged with public duties, be held, 
upon mere implication or presump- 
tion, to have divested itself of its 
powers. As, then, the city of Knox- 
ville cannot be held to have pre- 
cluded itself by contract from es- 
tablishing its own independent sys- 
tem of waterworks, it becomes un- 
necessary to consider any other 
question in the case. The judg- 
ment of that court dismissing the 
bill must be affirmed." 

Grand Rapids E. L. & P. Co. v. 
Grand Rapids E. E. L. & F. G. Co., 
33 Fed. 659; Citizens' St. R. Co. v. 
Jones, 34 Fed. 579; Louisville 
Home Tel. Co. v. Cumberland, 
Telep. & Tel. Co. (C. C. A.) Ill Fed. 
663, reversing 110 Fed. 593; Capital 
City Light & Fuel Co. v. City of 
Tallahassee, 42 Fla. 462, 28 So. 810; 
Wabash R. Co. v. City of Defiance, 
52 Ohio St. 262, 40 N. E. 89; Em- 
erson v. Com. 108 Pa. 111. 

Spelling, Trusts & Monopolies, 
100. "If there is any ambiguity 
or reasonable doubt, arising from 
the terms used by the legislative 
or granting body, as to whether an 
exclusive franchise has been con- 



2166 



PUBLIC PROPERTY. 



927 



of property or rights which it may have acquired under a previ- 
ous and more favorable construction of the license or grant. The 
doctrine of equitable estoppel operates as against the public au- 
thorities. 1226 

927. Nature of grant or license. 

The grant or license if legally made becomes, upon its accept- 
ance, a valid contract as between the parties to be enforced and 
carried out in strict accordance with the rules of law pertaining 
to contracts. 1227 An obligation is created between the parties 
which is embraced within that provision of the Federal Consti- 
tution that prohibits the passing of a law impairing the obliga- 
tion of that contract. 1228 Municipal corporations cannot be per- 
mitted to trifle with the legal rights of those to whom such 



ferred, or authorized to be con- 
ferred, the doubt is to be resolved 
against the corporation or individ- 
ual claiming such grant. Public 
policy does not permit an unneces- 
sary interference of authority to 
make a contract inconsistent with 
the continuance of the sovereign 
power and duty to make such laws 
as the public welfare may require." 

1226 City R. Co. v. Citizens' St. 
R. Co., 166 TJ. S. 557; Los Angeles 
City Water Co. v. City of Los Ange- 
les, 88 Fed. 720, affirmed 177 U. S. 
558; City of Los Angeles v. Los 
Angeles City Water Co., 124 Cal. 
368, 57 Pac. 210, 571; Wilmington 
City R. Co. v. Peoples' R. Co. (Del.) 
47 Atl. 245; Wyandotte Electric- 
Light Co. v. City of Wyandotte, 
124 Mich. 43, 82 N. W. 821. But 
see Louisville Trust Co. v. City of 
Cincinnati, 73 Fed. 716. 

12 -" Mercantile Trust & Deposit 
Co. v. Collins Park & B. R. Co. 101 
Fed. 347; Western Union Tel. Co. 
v. Guernsey & S. Elec. Light Co., 
46 Mo. App. 120. A grant of the 
right to erect poles and wires for 



supplying electric light does not 
impair the rights of a telegraph 
company under prior grant. See 
cases cited in following section. 

1228 Williams v. Wingo, 177 U. S, 
601; Alpers v. City & County of San 
Francisco, 32 Fed. 503. The prin- 
ciple applied to an exclusive con- 
tract for the removal of dead ani- 
mals not slain for food. See, also, 
as holding the same, National Fer- 
tilizer Co. v. Lambert, 48 Fed. 458; 
Cleveland City R. Co. v. City of 
Cleveland, 94 Fed. 385; Mercantile- 
Trust & Deposit Co. v. Collins Park 
& B. R. Co., 99 Fed. 812; Patton v. 
City of Chattanooga, 108 Tenn. 197, 
65 S. W. 414. But see Clarksburg 
Elec. Light Co. v. City of Clarks- 
burg, 47 W. Va. 739, 35 S. E. 994, 
50 L. R. A. 142, where it is held that 
an exclusive grant of a franchise 
by a town in excess of its authority 
is not a contract protected by the 
clause of the Federal constitution 
which forbids the passage of laws 
impairing the obligation of con- 
tracts. Citing many cases. 



928 



ITS CONTROL, AND USE. 



2167 



licenses or privileges have been created. 1229 But an ultra vires 
contract cannot be ratified or the doctrine of estoppel applied be- 
cause of acquiescence. 1230 

A Federal question. Since the determination of the existence 
of a contract obligation may arise in connection with litigation 
involving an exclusive license or privilege, a Federal question 
arises which, if properly presented, makes the action one either 
triable or removable to the Federal courts in accordance with the 
Federal statutes. 1231 



928. Impairment of contract obligation by grantor of ex- 
clusive license or privilege. 

It is well settled by the authorities and principles given in the 
preceding sections that the grant of an exclusive legal privilege 
is a contract, the obligation of which cannot, therefore, be broken 
by either the public corporation or the one to whom the privilege 
or license has been given. 1232 They extend, ordinarily, over a 



1229 City of Kankakee v. Kanka- 
kee Water Co., 38 111. App. 620. The 
grant of the use of streets to lay 
water pipes though void in respect 
to its exclusive character will be 
valid as to the grantees right to 
construct waterworks and lay his 
pipes and mains in streets. 

1230 Westerly Water-works Co. v. 
Town of Westerly, 80 Fed. 611; 
State v. Cincinnati Gas Light & 
Coke Co., 18 Ohio St. 262; Cincin- 
nati Gas Light & Coke Co. v. Avon- 
dale, 43 Ohio St. 257, 1 N. B. 527; 
Smith v. Town of Westerly, 19 R. 
I. 437, 35 Atl. 526. But see Wyan- 
dotte Elec. Light Co. v. City of 
Wyandotte, 124 Mich. 43, 82 N. W. 
821, where a city was held estopped 
to attack the validity of the com- 
pany's organization. 

1231 city of Walla Walla v. Walla 
Walla Water Co., 172 U. S. 1; 
Southwest Missouri Light Oi v. 
City of Joplin, 113 Fed. 817. 

1232 New Orleans Gas Co. v. 



Louisiana Light Co., 115 U. S. 650; 
Louisville Gas Co. v. Citizens' Gas 
Co., 115 U. S. 683; New Orleans 
Water-works Co. v. Rivers, 115 U. 
S. 674; St. Tammany Water-works 
Co. v. New Orleans Water-works 
Co., 120 U. S. 64; City of Louisville 
v. Wible, 84 Ky. 290, 1 S. W. 605. 
Exclusive contract for removal of 
dead animals held a contract not 
to be impaired. The court said: 
"She may also, in the exercise of 
her powers, grant 'exclusive sep- 
arate' public privileges in considera- 
tion of public services.' She may 
also grant special or private privi- 
leges to certain individuals, pro- 
vided the rights of others are not 
affected by it. She has the right 
to confer upon cities and towns, as- 
integral parts of the state, the ex- 
ercise of such of these powers as 
may be deemed necessary, prudent 
or expedient for their local welfare 
and comfort. She may also grant 
many exclusive privileges to per- 



2168 



PUBLIC PROPERTY. 



928 



considerable period of time and the essential of the right in favor 
of the licensee or grantee is the exclusive privilege of selling some 
commodity or supplying some service at an agreed rate to the 
members of a community, the public corporation itself or both. 
Where the existence of a grant of this character is established, 
an attempt by the public authorities or the state to grant others 
rights of a similar character in whole or in part is conceded to 
be an impairment of the obligation and, therefore, void. 1233 The 



sons and corporations; also re- 
linquish many of her powers. She 
may also recall them at pleasure, 
except when the person to whom 
the grant is made proposes to ren- 
der a public service in considera- 
tion thereof; or in case of the 
grant of a special private privilege, 
the person to whom the grant * 
made proposes, in consideration 
thereof, to engage in some enter- 
prise that he would not or could not 
have otherwise done, then such 
grants of privileges, public and pri- 
vate, become contracts for a suf- 
ficient consideration, and cannot be 
impaired by any subsequent act of 
the state." 

Proprietors of Bridges v. Ho- 
boken Land & Imp. Co., 13 N. J. 
Eq. (2 Beasl.) 81; Boyer v. Village 
of Little Falls, 38 N. Y. Supp. 1114; 
In re Rochester Water Com'rs, 66 
N. Y. 413; Satterthwaite v. Beau- 
fort County Com'rs, 76 N. C.-153; 
Asheville St. R. Co. v. City of Ashe- 
ville, 109 N. C. G88, 14 S. E. 316; 
In re Towanda Bridge Co., 91 Pa. 
216; Carlisle Gas & Water Co. v. 
Carlisle Water Co., 188 Pa. 51, 41 
Atl. 321; City of Brenham v. Water 
Co., 67 Tex. 542, 4 S. W. 143; Mason 
v. Harper's Ferry Bridge Co., 17 
W. Va. 396. Beach, Monopolies, 
121. "But while corporations will 
not be favored and nothing will be 
presumed in their interests, it is 



the province of equity to protect 
corporations no less than individ- 
uals. Where the right is with the 
corporation it will be sustained 
against any usurpation of its fran- 
chise, and against any effort to put 
an end to its corporate existence. 
Public prejudice is not a rule to a 
court of chancery." But see Alt- 
gelt v. City of San Antonio, 81 Tex. 
436, 13 L. R. A. 383. The constitu- 
tion of Texas, however, forbids the 
granting of exclusive monopolies. 
See, also, cases cited generally in 
this section. See, also, 916, 917, 
919, ante. 

1233 Parrott v. City of Lawrence, 
2 Dill. 332, Fed Cas. No. 10,772. An 
exclusive right of maintaining a 
bridge is not infringed by the es- 
tablishment of a ferry. Aubert- 
Gallion Corp. v. Roy, 21 Can. Sup. 
Ct. 456; Newburgh & Co. Turnpike 
Road v. Miller, 5 John. Ch. (N. Y.) 
101; Omnibus R. Co. v. Baldwin, 
57 Cal. 160; McLeod v. Savannah, 
A. & G. R. Co., 25 Ga. 445. An ex- 
clusive right to construct and main- 
tain a toll bridge is not impaired 
by a grant to erect a railroad 
bridge. Des Moines St. R. Co. v. 
Des Moines B. G. St. R. Co., 73 
Iowa, 513, 33 N. W. 610, 35 N. W. 
602; City of Newport v. New- 
port Light Co., 84 Ky. 166; New Or- 
leans Gas Light Co. v. Hart, 40 La. 
Ann. 474, 4 So. 215; Taylor v. City 



$928 



ITS CONTROL AND USB. 



2169 



exclusive character of the license may be granted on condition 
that the public corporation shall have the right to purchase the 
grantee's plant at a certain time. The breaking of this condition 
usually annuls the contract so far as the grantee of the exclusive 
privilege is concerned. 1234 The question has been raised as to 
whether the engaging in a similar business or enterprise by the 
public corporation is a violation of the terms of an exclusive 
privilege already granted, or, stated differently, where individ- 
uals have been given the exclusive right of supplying and fur- 
nishing any of the commodities or services under discussion, 
whether the grantor can compete with them. Where by the terms 
of the grant the right is expressly reserved to the grantor or 
where the grant is not exclusive in its character, 1235 there can be 



of Lambertville, 43 N. J. Eq. 107, 
10 Atl. 809; Atlantic City Water- 
works Co. v. Atlantic City, 39 N. J. 
Eq. (12 Stew.) 367; Cayuge Bridge 
Co. v. Magee, 6 Wend. (N. Y.) 85; 
Smith v. Harkins, 38 N. C. (3 Ired. 
Eq.) 613; Robinson v. Lamb, 126 
N. C. 492, 36 S. E. 29. Ferry privi- 
lege. Appeal of Freeport Water- 
works Co., 129 Pa. 605, 18 Atl. 560; 
Bennett Water Co. v. Borough ot 
Millvale, 200 Pa. 613, 50 Atl. 155; 
Texarkana & Ft. S. R. Co. v. Texas 
& N. O. R. Co., 28 Tex. Civ. App. 
551, 67 S. W. 525. 

State v. Columbus Gas Light & 
Coke Co., 34 Ohio St. 581, 32 Am. 
Rep. 393. "The charter, in the 
present instance, grants to the de- 
fendant the exclusive right of sup- 
plying the city and its inhabitants 
with gas, for the term of twenty 
years. It operates, therefore, not 
only to confer a public franchise 
on the defendant, but also to re- 
strict the public from supplying 
its necessities from any other 
source. This creates a monopoly in 
the defendant for the time the right 
is made exclusive." But see Fan- 
ning v. Gregoire, 16 How. (U. S.) 
'524; Williams v. Wingo, 177 U. S. 



601. It was held in this case that 
a ferry license granted under an 
act which made it unlawful for 
another ferry license to be granted 
within one-half miles of any other 
ferry did not constitute a contract, 
the obligation of which was im- 
paired by a subsequent act which 
especially authorized the establish- 
ment of a ferry within less than 
one-half mile of the former ferry. 
Wilmington City R. Co. v. Wil- 
mington & B. S. R. Co. (Del.) 46 
Atl. 12; Des Moines Gas Co. v. 
City of Des Moines, 44 Iowa, 505; 
Proprietors of Bridges v. Hoboken 
Land & Imp. Co., 13 N. J. Eq. (2 
Beasl.) 81. Authority for the con- 
struction of a railroad viaduct does 
not impair the license granted to 
the proprietors of an ordinary 
bridge. See, also, as holding the 
same, Thompson v. New York & 
H. R. Co., 3 Sandf. Ch. (N. Y.) 625, 
and Mohawk Bridge Co. v. Utica & 
S. R. Co., 6 Paige (N. Y.) 554. See, 
also, 896, notes 1016 and 1047, and 
930, and cases cited. 

1234 Montgomery Gas Light Co. 
v. City Council of Montgomery, 87 
Ala. 245, 6 So. 113, 4 L. R. A. 616. 

1235 Lehigh Water Co. v. Borough 



2170 



PUBLIC PROPERTY. 



92S 



no question and in the absence of such a provision there are some 
authorities which hold that a public corporation still can engage 
in the same business. 1236 In a recent case of the Supreme Court 
of the United States, 1237 where a city established its own system 
of waterworks in competition with that of a private company, the 
court, observing that the city had not specifically bound itself 
not to construct its own plant said: "Had it been intended ta 
exclude the city from exercising the privilege of establishing its 
own plant, such purpose could have been expressed by apt words, 
as was the case of Walla Walla City v. Walla Walla Water Co., 
172 U. S. 1. It is doubtless true that the erection of such a plant by 
the city will render the property of the water company less valu- 
able, and perhaps, unprofitable ; but if it was intended to prevent 



of Easton, 121 U. S. 388, affirming 
102 Pa. 515; Hamilton Gas Light & 
Coke Co. v. City of Hamilton, 146 
U. S. 258. The court said: "It 
may he that the erection and main- 
tenance of gas works by the city 
at the public expense, and in com- 
petition with the plaintiff, will ulti- 
mately impair, if not destroy, the 
value of the plaintiff's works for 
the purposes for which they were 
established. But such considera- 
tions cannot control the determina- 
tion of the legal rights of the 
parties." 

Long Island Water Supply Co. v. 
City of Brooklyn, 166 U. S. 685, 
affirming 143 N. Y. 596, 38 N. E. 
983, 26 L. R. A. 270; Thomson- 
Houston Elec. L. Co. v. City of 
Newton, 42 Fed. 723; Bienville 
Water Supply Co. v. City of Mobile, 
95 Fed. 539; Colby University v. 
Village of Canandaigua, 96 Fed. 
449;; Little Falls Elec. & Water 
Co. v. City of Little Falls, 102 Fed. 
663; City of Helena v. Helena Wat- 
er-works Co., 122 Fed. 1; City of 
Mobile v. Bienville Water Supply 
Co., 130 Ala. 379, 30 So. 445; Long 
v. City of Duluth, 49 Minn. 280, 51 



N. W. 913; Des Moines St. R. Co. 
v. Des Moines Broad-Guage St. R. 
Co., 73 Iowa, 513; Syracuse Water 
Co. v. City of Syracuse, 116 N. Y. 
167, 22 N. E. 381, 5 L. R. A. 546; 
Freeport Water-works Co. v. Pra- 
ger, 129 Pa. 605, 18 Atl. 560; How- 
ard's Appeal, 162 Pa. 374, 29 Atl. 
641; Fingal v. Millvale Borough, 
162 Pa. 393, 29 Atl. 644; Boyertowir 
Water Co. v. Borough of Boyer- 
town, 200 Pa. 394, 50 Atl. 189; 
North Springs Water Co. v. City of 
Tacoma, 21 Wash. 517, 58 Pac. 773, 
47 L. R. A. 214. 

1236 Memphis City v. Dean, 75 IT. 
S. (8 Wall.) 64; Lehigh Water Co. 
v. Borough of Easton, 121 U. S. 388, 
affirming 102 Pa. 515; Thomas v. 
City of Grand Junction, 13 Colo. 
App. 80, 56 Pac. 665; Hughes v. 
City of Momence, 163 111. 535, 45 
N. E. 300; City of Austin v. Nalle, 
85 Tex. 520, 22 S. W. 668, 960; 
North Springs Water Co. v. City of 
Tacoma, 21 Wash. 517, 58 Pac. 773, 
47 L. R. A. 214. 

1237 Helena Water-works Co. v. 
City of Helena, 195 U. S. 383; 
Knoxville Water Co. v. City of 
Knoxville, 26 Sup. Ct. 224. 



928 



ITS CONTROL AND USE. 



2171 



such competition, a right to do so should not have been left to 
argument or implication, but made certain by the terms of the con- 
tract." The weight of authority and the better considered cases, 
however, hold that the construction and operation of a competing 
plant even for the sole purpose of supplying the public corpora- 
tion itself or rendering a certain service free to the public, is re- 
garded an impairment of the contract obligation. 1238 A leading 



1238 city of Walla Walla v. Walla 
Walla Water Co., 172 U. S. 1; 
Southwest Missouri Light Co. v. 
City of Joplin, 101 Fed. 23. Where 
a city granted the right to a pri- 
vate corporation to supply light for 
public purposes and to private con- 
sumers for a period of twenty 
years, held there was an implied 
contract made by it through the ac- 
ceptance of the ordinance granting 
the right that the city would not 
itself enter into competition with 
the grantee in supplying light to 
private consumers during the term 
of the grant and the private cor- 
poration is entitled to an injunction 
against such competition as the 
only adequate remedy. The court 
said in part: "The city of Joplin, 
'in consideration of the benefits to 
be derived,' from the construction 
and erection of the plant by its 
grantees, gave them the right and 
privilege to its streets, etc. It com- 
pelled them to go to work with- 
in a given number of days, 
and to complete its works 
within a given time; to so 
erect its poles and string its wires 
as to furnish the streets of the city 
with electric lights if the city 
should demand a contract therefor; 
it required of the company to keep 
and maintain a light at a given 
place for lighting a railroad cross- 
ing; it invited the company to put 
its money into this plant, and to 



become the owner of property in 
the city. Will the law permit that, 
as soon as it becomes strong 
enough to stand alone, because, 
perhaps, the very presence of elec- 
tric lights on the streets and in its 
houses, furnished by this complain- 
ant, has invited population and 1 
growth and increase of its wealth, 
the city itself should embark in the 
electric light business, lay its 
pipes alongside of those of the com- 
plainant, and enter the field of com- 
petition in the mercantile business 
of selling lights, and to tax the 
property of the complainant to help 
to support this competition, and ul- 
timately drive it from the field and 
destroy its investment? When it 
exercised its option, under the 
statute of 1891, to enter into a con- 
tract with some other person or 
corporation for a period of 20 years, 
it thereby as effectually declared 
to its grantee that it did not pro- 
pose to exercise contemporaneously 
the power given in the first part of 
the statute to erect its own works, 
and enter upon competition with 
its grantees, as if it had written it 
in italics in the ordinance itself. 
What is necessarily implied need 
not be expressed. My conclusion in 
this case is based largely upon the 
peculiar provisions of this statute, 
the object of the legislature in its 
grant to cities of the third class, 
as well as the obvious equities and 



PUBLIC PROPERTY. 



928 



justice of the case. As the com- 
plainant does not ask that the de- 
fendant shall not supply for its 
public use electric lights, it cer- 
tainly ought not to complain that it 
shall be restrained from entering 
the field of speculation in a busi- 
ness venture to compete for private 
patronage." 

Aubert-Gallion Corp. v. Roy, 21 
Can. Sup. Ct. 456. The construction 
of a free bridge by a city held to im- 
pair respondent's exclusive fran- 
chise for the construction of a toll 
bridge. Townsend v. Blewett, 6 
Miss. (5 How.) 503; Atlantic City 
Water-works Co. v. Atlantic City, 
39 N. J. Eq. (12 Stew.) 367; Bennett 
Water Co. v. Borough of Millvale, 
202 Pa. 616, 51 Atl. 1098, affirming 
on rehearing, 200 Pa. 613, 50 Atl. 
155. 

White v. City of Meadville, 177 
Pa. 643, 35 Atl. 694, 34 L. R. A. 567. 
"A municipality, in its beginnings, 
is perhaps not financially strong, 
or its debt may approach the con- 
stitutional limit so closely that it 
cannot borrow; nevertheless, the 
low state of its financial condition 
does not render less urgent the ne- 
cessity of a water supply; it can ob- 
tain it in but one way, by contract 
with those who have the money and 
are willing to invest their private 
capital in the construction of water- 
works; the legislature knew capital 
would not be invested in such an 
enterprise if in the future it were 
liable to confiscation by competi- 
tion with a public enterprise oper- 
ated from a municipal treasury, 
capable of replenishment from the 
pocket of the taxpayer. That fact 
suggested clause 7 of the corpora- 
tion act (which conferred the pow- 
er to buy) ; the municipality will 
not be forever poor; the time will 



come when it will be of financial 
ability to own and operate its own 
works; the very fact of having a 
supply of water on an investment 
of private capital, has tended to 
stimulate its growth, and to largely 
appreciate the value of taxable 
property. * * * Both the con- 
tracting parties must be conclu- 
sively presumed to have had in 
view the law which empowered 
them to contract, and which be- 
came part of the contract. At the 
end of 20 years the defendants have 
a right to take the works at a price 
fixed by the law, and that is one of 
computation. True, as to the city, 
the taking of the works is only per- 
missive." 

Metzger v. Borough of Beaver 
Falls, 178 Pa. 1, 35 Atl. 1134. "The 
legislature never did intend to com- 
mit the duty of supplying water to 
a municipality to two different 
agencies, both in operation at the 
same time. The borough had au- 
thority 'to provide a supply of 
water for the use of the inhabi- 
tants.' This supply was provided 
by the Union Water Company, sub- 
ject to such regulations in regard 
to streets, roads and grades as the 
borough imposed. The borough 
did not attempt to construct works 
until years after the water com- 
pany had laid its mains, and the 
public had been served. The rights 
of the water company vested by 
consent of the municipality and its 
contract to supply water for pub- 
lic purposes. * * * After twenty 
years the borough has power to 
purchase the works at a price not 
exhorbitant." 

Welsh v. Beaver Falls Borough, 
186 Pa. 578, 40 Atl. 784. "When a 
contract is made with a private 
water company, authorized usually, 



928 ITS CONTROL AND USE. 2173 

case 1239 decided by the Supreme Court of the United States said 
in maintaining the principle just stated: "There was no attempt 
made to create a monopoly by granting an exclusive right to this 
company, and the agreement that the city would not erect water- 
works of its own was accompanied, in section 8 of the contract, 
with a reservation of a right to take, condemn and pay for the 
waterworks of the company at any time during the existence of 
the contract. Taking sections 7 and 8 together, they amount 
simply to this : That if the city should desire to establish water- 
works of its own it would do so by condemning the property of 
the company and making such changes in its plant or such addi- 
tions thereto as it might deem desirable for the better supply of 
its inhabitants; but that it would not enter into a direct com- 
petition with the company during the life of the contract. As 
such competition would be almost necessarily ruinous to the com- 
pany, it was little more than an agreement that the city would 
carry out the contract in good faith. An agreement of this kind 
was a natural incident to the main purpose of the contract, to the 
power given to the city by its charter to provide a sufficient sup- 
ply of water, and to grant the right to use the streets of the city 
for the purpose of laying water pipes to any person or associa- 
tion of persons for a term not exceeding twenty-five years. In 

only to build its works and main- elected to contract with a company 
tain its plant at one place, it would for a water supply has exhausted 
be grossly inequitable to hold that its power and cannot in a failure 
the municipality, after inviting the to furnish an adequate supply, 
construction of such works, and erect a plant of its own. 
contracting with the company for Victoria County v. Victoria 
the water supply, could at any time Bridge Co., 68 Tex. 62, 4 S. W. 140. 
thereafter destroy them by con- A license to construct a toll bridge 
structing its own works. To au- under Tex. Act of April 23, 1874, 
thorize such municipal action the (p. 139, 79) which forbids the es- 
statutory right must be explicit. It tablishment of another toll bridge 
will not be implied from doubtful or toll ferry on the same stream 
language." within six miles is not a contract 
Wilson v. Rochester Borough, 180 that can be impaired by the con- 
Pa. 509, 38 Atl. 136; Tyrone Gas & struction of a free bridge by the 
Water Co. v. Tyrone Borough, 195 county within the prohibited dis- 
Pa. 566, 46 Atl. 134; Troy Water tance. 

Co. v. Borough of Troy, 200 Pa. 453 1239 City of Walla Walla v. Walla 

50 Atl. 259. A borough under Bor- Walla Water Co., 172 U. S. 1. 
ough Act of April 3rd, 1851, having 



PUBLIC PROPERTY 929 

establishing a system of waterworks the company would neces- 
sarily incur a large expense in the construction of the power 
house and the laying of its pipes through the streets, and, as the 
life of the contract was limited to twenty-five years, it would 
naturally desire to protect itself from competition as far as pos- 
sible, and would have a right to expect that at least the city 
would not itself enter into such competition. It is not to be sup- 
posed that the company would have entered upon this large un- 
dertaking in view of the possibility that, in one of the sudden 
changes of public opinion to which all municipalities are more 
or less subject, the city might resolve to enter the field itself 
a field in which it undoubtedly would have become the master 
and practically extinguish the rights it had already granted to 
the company. We think a disclaimer of this kind was within the 
fair intendment of the contract, and that a stipulation to that 
effect was such a one as the city might lawfully make as an inci- 
dent of the principal undertaking." The supplying of water, 
light or a similar service involves the construction, ordinarily, of 
an extensive plant and the investment of large sums of money. 
If the profit was dependent upon its sale to private consumers 
alone, in the great majority of cases, the business could not be 
carried on except at a loss and the right to sell to the corporation 
is regarded equally with the right to sell private consumers as an 
essential part of the contract. 

929. Forfeiture or revocation of grant or license. 

"Where an exclusive privilege or license has been granted the 
duty of the public corporation and its obligation is to refrain 
from granting similar privileges. The licensee or grantee on the 
other hand is obligated to comply strictly with the terms of the 
grant not only in the construction and maintenance of its plant 
but also, and especially, this is true in the case of a supply of 
water and light, in furnishing a commodity at a designated pres- 
sure 124 or that reaches a certain standard of purity or qual- 
ity. 1241 

1240 city of Greenville v. Green- City of Charlotte, 108 N. C. 121, 12 

ville Water Co., 125 Ala. 625, 27 S. E. 846. See 469 & 470, ante. 
So. 764; Grand Junction Water Co. 1241 City of Winfleld v. Winfield 

v. City of Grand Junction, 14 Colo. Water Co., 51 Kan. 70, 32 Pac. 663; 

App. 424, 60 Pac. 196; Wilson v. Bennett Water Co. v. Borough of 



929 



ITS CONTROL AND USE. 



2175 



If the licensee persistently fails to furnish an adequate supply 
of pure, wholesome water, for example, this may be the occasion 
for a refusal to pay charges, 1242 forfeiture or revocation of the 
rights granted by the license or under the contract. 1243 The ex- 
istence of conditions or circumstances, however, which are suffi- 
cient to warrant this action, is a question for judicial determina- 
tion unless by the terms of the grant or license the arbitrary 
right is given to the public authorities. Where the forfeiture of 
a license or privilege is claimed because of broken conditions, 
the rule almost universally obtains that a substantial compliance, 
especially in respect to minor details or trivial matters, is all that 
is necessary. 1244 

Where the parties have in good faith given and accepted a li- 
cense or privilege, exclusive or otherwise in its character, and 



Millvale, 202 Pa. 616, 51 Atl. 1098, 
affirming on rehearing 200 Pa. 613, 
50 Atl. 155; Borough of Du Bois v. 
Du Bois City Water Co., 176 Pa. 
430, 35 Atl. 248, 34 L. R. A. 92; 
Green v. Ashland Water Co., 101 
Wis. 258, 77 N. W. 722, 43 L. R. A. 
117. Passing upon the responsi- 
bility of a water company is no 
implied warrantor of the purity of 
the water distributed by it. See, 
as to the same, Britton v. Green 
Bay & Ft. H. Water-works Co., 81 
Wis. 48, 51 N. W. 84; City of Wil- 
kesbarre v. Spring Brook Water 
Supply Co., 4 Lack. Leg. N. (Pa.) 
367. There is no obligation to fur- 
nish water that is chemically pure 
but only that which is reasonably 
pure and wholesome. See, also, 
469 and 470, ante. 

1242 city of Kankakee v. Kanka- 
kee Water Co., 38 111. App. 620; 
Burlington Water-works Co. v. City 
of Burlington, 43 Kan. 725, 23 Pac. 
1068. A city may be estopped from 
claiming a broken condition in this 
respect by an acceptance and use 
of water. State Trust Co. of New 
York v. City of Duluth, 70 Minn. 



257, 73 N. W. 249. The fact that a 
water company has failed to fur- 
nish private consumers according 
to the terms of its grant is no 
ground for a refusal on the part of 
the city to pay the rental of fire 
hydrants which have been amply 
supplied. Brymer v. Butler Water 
Co., 172 Pa. 489, 33 Atl. 707. But 
see Wilson v. City of Charlotte, 108 
N. C. 121, 12 S. E. 846. 

1243 state v. Capitol City Water 
Co., 102 Ala. 231, 14 So. 652; Capi- 
tal City Water Co. v. State, 105 
Ala. 406, 18 So. 62, 29 L. R. A. 743; 
State v. City of Pnilipsburg, 23 
Mont. 16, 57 Pac. 405; Palestine 
Water & Power Co. v. City of Pal- 
estine, 91 Tex. 540, 44 S. W. 814; 

40 L. R. A. 203, Id. (Tex. Civ. App.) 

41 S. W. 659. But see Cherryvale, 
Water Co. v. City of Cherryvale, 
65 Kan. 219, 69 Pac. 176. 

1244 Cunningham v. City of Cleve- 
land (C. C. A.) 98 Fed. 657; State 
v. City of Crete, 32 Neb. 568, 49 
N. W. 272; City of Elmira v. Maple 
Ave. R. Co., 51 Hun, 638, 4 N. Y. 
Supp. 943. 



2176 PUBLIC PROPERTY. 930, 93J 

have expended large sums of money in constructing a plant and 
in maintaining it, an ordinary sense of right and fair dealing re- 
quires the application of this rule. The above rule in respect to 
the performance of conditions applies equally to contracts not ex- 
clusive in their character. 

930. Assignment of exclusive privilege or license. 

The legal right of the grantee of an exclusive privilege or 
license to assign or transfer by sale, or through consolidation, 
his rights is largely dependent upon the language of the license 
or grant. It is true as with privileges not of an exclusive char- 
acter that they are assignable ordinarily to other persons or cor- 
porations for a period equal to their unexpired term unless this 
is prohibited by the grant. 1245 The absence of a prohibition is 
sufficient affirmative authority. They may be granted for a time 
in excess of the corporate life of the grantee and under the op- 
eration of the principle stated above they may be assigned law- 
fully to interests succeeding them. The nonobservance of condi- 
tions imposed for the benefit of the municipality may be waived 
by it. 124C A condition against assignment will not as between the 
parties prevent a legal transfer of interests for the condition is 
one imposed for the benefit of the grantor alone. 

931. Grants to street railway companies. 

A grant to a street railway company of the right to occupy and 
use streets of a city may not only be an exclusive one because 
of the language used in the grant, but because of the character 
of the business carried on. A grant not exclusive in its terms is 
usually regarded as such during its term. The occupation of 

1245 City R. Co. v. Citizens' St. R. the lessee to the lessor. See, also, 

Co., 166 U. S. 557; Canal & C. R. as holding the same, Canal & C. R. 

Co. v. Orleans R. Co., 44 La. Ann. Co. v. St. Charles St. R. Co., 44 La. 

54, 10 So. 389. Where there is no Ann. 1069, 11 So. 702; Adee v. Nas- 

prohibition, a street railroad own- sau Elec. R. Co., 65 App. Div. 529, 

ing and operating a street railway 72 N. Y. Supp. 992. 
under a franchise from the city may Toledo Elec. St. R. Co. v. Toledo 

lease to another company the right & M. V. Ry. Co., 7 Ohio, N. P. 211. 
to use its tracks and the city has 12*9 Chicago & S. S. Rapid Transit 

no interest in the amount of com- Co. v. Northern Trust Co., 90 111. 

pensation which shall be paid by App. 460. 



931 



ITS CONTROL AND USE. 



streets by a street raihvay company with its tracks and other 
facilities is necessarily exclusive. 1247 The question of additional 
compensation to the abutting owner and conditions upon which 
licenses to street railways are usually granted have been con- 
sidered in preceding sections. 1248 In common with all grants of 
a similar character one given to a street railway company is 
construed strictly both in respect to the existence of assumed 
rights 1249 and also the conditions which may exist in connection 



1247 Jackson County Horse R. Co. 
v. Interstate Rapid Transit R. Co., 
24 Fed. 306. "But power to permit 
one citizen to use the streets in a 
given way is a very different thing 
from power to give such citizen the 
right to keep every other citizen 
from a like use of the streets. The 
one is a mere street regulation, a li- 
cense; the other rises into the dig- 
nity of a contract, a franchise. 
The one may rest upon the ordinary 
powers of a street management and 
control, the other requires the sup- 
port of a special grant. Doubtless 
the city may practically secure ex- 
clusive occupation to one railway 
company; ,i. e., by giving permis- 
sion to one, and withholding per- 
mission from all others, the occu- 
pation of that one becomes, for the 
time being, exclusive. But that is 
an altogether different matter. In 
the one case the exclusiveness de- 
pends on the continuous will of the 
city; in the other upon that of the 
individual company. In the one 
the full and constant control of the 
streets is retained; in the other it 
is partially transferred to the com- 
pany. Again, exclusiveness of oc- 
cupation is not necessary to the 
full performance of a street rail- 
road company of all its functions. 
The running of a street railroad on 
one street is in no manner inter- 
fered with by the running of a simi- 
Abb. Corp. Vol. Ill 13. 



lar road on a parallel street. Doubt- 
less the profits of the one will be 
increased if the other is stopped. 
Monopoly implied increase of 
profits. But the question of profits 
is very different from that of the 
unimpeded facilities for transact- 
ing business. The latter may be 
granted without any exclusiveness. 
And power to grant all facilities 
for transacting business does not 
imply power to forbid all others 
from transacting like business." 

Indianapolis Cable St. R. Co. v. 
Citizens' St. R. Co., 127 Ind. 369, 24 
N. B. 1054, 26 N. B. 893, 8 L. R. A. 
539; Detroit Citizens' St. R. Co. v. 
City of Detroit, 110 Mich. 384, 68 
N. W. 304, 35 L. R. A. 859; Edison 
Elec. Light & Power Co. v. Mer- 
chants' & Manufacturers' Elec. 
Light, Heat & Power Co., 200 Pa. 
209, 49 Atl. 766. The same rule ap- 
plied where franchises are given to 
two electric light companies and 
interference is unavoidable; the 
latter must in time give way. 
Homestead St. R. Co. v. Pittsburg 
& H. Elec. St. R. Co., 166 Pa. 162, 
30 Atl. 950, 27 L. R. A. 383. Beach, 
Monopolies, 122; Elliott, Roads 
& St. (2d Ed.) 745 and 746. 

1248 See 835 et seq., ante. 

1249 Detroit Citizens' St. R. Co. v. 
Detroit R. Co., 171 U. S. 48; City of 
Detroit v. Detroit City R. Co., 56 
Fed. 867; Birmingham & P. M. St. 



2178 



PUBLIC PROPERTY 



931 



with the granting of the license or privilege. 1250 An exclusive 
license to operate a street railway company by means of animal 
power would not, under the application of this principle, be im- 
paired by the grant of one to operate a system by electricity or 
other power. 1251 An interference with exclusive rights whether 



R. Co. v. Birmingham St. R. Co., 79 
Ala. 465; City of New Orleans v. 
Steinhardt, 52 La. Ann. 1043, 29 So. 
586; New Bedford & F. St. R. Co. 
v. Achushnet St. R. Co., 143 Mass. 
200, 9 N. E. 536; St. Louis Trans- 
fer R. Co. v. St. Louis Merchants' 
Bridge Terminal R. Co., 111. Mo. 666, 
20 S. W. 319; West Jersey Trac- 
tion Co. v. Camden Horse R. Co., 
53 N. J. Eq. 163, 35 Atl. 49; Penn- 
sylvania S. V. R. Co. v. Pennsyl- 
vania & R. R. Co., 157 Pa. 42, 27 A. 
683. The grant of the right to oc- 
cupy so much of the street "as may 
be necessary" confers no exclusive 
privileges unless the whole width 
of the street is reasonably neces- 
sary for its business. 

Potts v. Quaker City El. R. Co., 
161 Pa. 396, 29 Atl. 108. Consider- 
ing Pennsylvania Elevated Rail- 
road Acts holding that an elevated 
railroad company in a city is a 
street passenger railway and can 
be incorporated under the general 
railroad acts. Commonwealth v. 
Northeastern L. R. Co., 161 Pa. 409, 
29 Atl. 112. A company incorpor- 
ated as a street passenger rail- 
road cannot build an elevated street 
railroad. Peoples' Pass. R. Co. v. 
City of Memphis (Tenn.) 16 S. W. 
973; Gulf City St. R. Co. v. Galves- 
ton City R. Co., 65 Tex. 502; Mur- 
ray Hill Land Co. v. Milwaukee 
Light Heat & Traction Co., 110 
Wis. ,..>5, 86 N. W. 199. 

i2oo Denver Tramway Co. v. Lon- 
doner, 20 Colo. 150; West End & 
A. St. R. Co. v. Atlanta St. R. Co., 



49 Ga. 151; Smith v. Indianapolis 
St. R. Co., 158 Ind. 425, 63 N. E. 
849; Spitzer v. Runyan, 113 Iowa, 
619, 85 N. W. 782. Erection and 
maintenance of a viaduct. State v. 
Latrobe, 81 Md. 222; Prince v. 
Crocker, 166 Mass. 347, 44 N. E. 
446, 32 L. R. A. 610. Construing 
Mass. St. 1894, c. 548, Boston sub- 
way act; City of Duluth v. Duluth 
St. R. Co., 60 Minn. 178; Jersey 
City & B. R. Co. v. Jersey City & 
H. Horse R. Co., 20 N. J. Eq. (5 C. 
E. Green) 61, Id., 21 N. J. Eq. (6 
C. E. Green) 550; Cape May, D. B. 
& S. P. R. Co. v. City of Cape May, 
58 N. J. Law, 565, 34 Atl. 397. The 
rule applied to the construction of 
extensions. Camden Horse R. Co. 
v. Scott, 52 N. J. Eq. 452; Kennelly 
v. Jersey City, 57 N. J. Law, 293, 
26 L. R. A. 281; Kent v. Common 
Council of City of Binghampton, 72 
App. Div. 623, 76 N. Y. Supp. 584; 
Potter v. Scranton Traction Co., 
176 Pa. 271, 35 Atl. 188. An ac- 
quiesence by a borough in a change 
of motive power for a term of five 
years will establish the right in a 
railroad company to the change. 
Gray v. Dallas Terminal R. & Union 
Depot Co., 13 Tex. Civ. App. 158, 36 
S. W. 352. 

1251 Omaha Horse R. Co. v. Cable 
Tramway Co., 30 Fed. 324; Denver 
R. Co. v. Denver City R. Co., 2 
Colo. 673; Wilmington City R. Co. 
v. Wilmington & B. S. R. Co. (Del.) 
46 Atl. 12; Southern R. Co. v. At- 
lanta R. & Power Co., Ill Ga. 679, 
36 S. E. 873, 51 L. R. A. 125. The 



931 



ITS CONTROL AND USE. 



2179 



granted to street railways or others, where they clearly appear, 
by either the municipality or by others, can be enjoined. 1252 Ex- 
clusive privileges or rights are regarded as property which can- 
not be illegally or arbitrarily taken. 1253 



language of the grant from the city 
controls the power to be used, not 
that of the charter of the street 
railroad. Indianapolis Cable St. R. 
Co. v. Citizens' St. R. Co., 127 Ind. 
369, 24 N. E. 1054, 26 N. E. 893, 8 
L. R. A. 539; Teachout v. Des 
Moines Broad-Guage St. R. Co., 75 
Iowa, 722, 38 N. W. 145; Louisville 
& N. R. Co. v. Bowling Green Ry. 
Co., 23 Ky. L. R. 273, 63 S. W. 4. 
A change of power may be author- 
ized. Louisville Bagging & Mfg. 
Co. v. Central Pass. R. Co., 95 Ky. 
50; Canal & C. R. Co. v. Crescent 
City Ry. Co., 44 La. Ann. 485, 10 
So. 888; Hooper v. Baltimore City 
Pass. R. Co., 85 Md. 509, 37 Atl. 
359, 38 L. R. A. 509; Paterson R. Co. 
v. Grundy, 51 N. J. Eq. 213; Lock- 
hart v. Craig St. R. Co., 139 Pa. 
419. But see Buckner v. Hart, 52 
Fed. 835. 

1252 Vicksburg Water-works Co. v. 
City of Vicksburg, 185 U. S. 65; 
Santa Rosa St. R. Co. v. Central 
St. R. Co. (Cal.) 38 Pac. 986; City 
of Los Angeles v. Los Angeles City 
Water Co., 124 Cal. 377, 57 Pac. 213, 
571. The same rule applies to an 
unlawful attempt to take posses- 
sion of a private waterworks plant 
by the city. Atlanta R. & Power 
Co. v. Atlanta Rapid Transit Co., 
113 Ga. 481, 39 S. E. 12; Des Moines 
St. R. Co. v. Des Moines B. G. St. 
R. Co., 73 Iowa, 513, 33 N. W. 610, 
35 N. W. 602; New Orleans, C. & 
L. R. Co. v. City of New Orleans, 44 
La. Ann. 748, 11 So. 77; St. Louis 
R. Co. v. Northwestern St. L. R. 
Co., 69 Mo. 65; Jersey City Gas Co. 



v. Dwight, 29 N. J. Eq. (2 Stew.) 
242; Citizens' Coach Co. v. Camden 
Horse R. Co., 33 N. J. Eq. (6 Stew.) 
267. A horse railway may enjoin 
an omnibus company from the gen- 
eral as distinguished from the in- 
cidental use of its track. Pocantico 
Water-works Co. v. Bird, 51 Hun, 
644, 4 N. Y. Supp. 317. The rule 
applied to nonexclusive franchise 
for supply of water. Ft. Worth St. 
R. Co. v. Queen City R. Co., 71 
Tex. 165, 9 S. W. 94. But see 
Coatesville & D. St. R. Co. v. Uwch- 
lan St. R. Co., 18 Pa. Super. Ct. 
524; Birmingham Traction Co. v. 
Southern Bell Telep. & Tel. Co., 119 
Ala. 144, 24 So. 731; Market St. R. 
Co. v. Central R. Co., 51 Cal. 583; 
Coffeyville Min. & Gas Co. v. Citi- 
zens' Natural Gas & Min. Co., 55 
Kan. 173, 40 Pac. 326. Injunction 
will not lie where no exclusive 
rights are granted. 

New York & H. R. Co. v. Forty- 
Second St. & G. S. Ferry R. Co., 50 
Barb. (N. Y.) 285. Where exclu- 
sive rights are granted an injunc- 
tion will not issue to restrain 
another railroad from laying tracks 
in the same street. Metropolitan 
St. R. Co. v. Toledo El. St. R. Co., 
9 Ohio Circ. R. 664; Texas & P. R. 
Co. v. Rosedale St. R. Co., 64 Tex. 
80. 

1253 West River Bridge Co. v. Dix, 
6 How. (U. S.) 507; Long Island 
Water Supply Co. v. City of Brook- 
lyn, 166 U. S. 685; Wilmington 
City R. Co. v. Wilmington & B. S. 
R. Co. (Del.) 46 Atl. 12; Chicago 
General R. Co. v. Chicago City R. 



2180 



PUBLIC PROPERTY. 



932 



932. Option to purchase. 

Many licenses or contracts made between private individuals 
and municipal corporations whereby the right is granted to 
occupy and use the public highways for the purpose of supplying 
light, water, power or other service, contain an option for the 
purchase or condemnation of the plant on the part of the mu- 
nicipal authorities at the expiration of a specified time 1254 and 



Co., 62 111. App. 502; Metropolitan 
City R. Co. v. Chicago West Divis- 
ion Co., 87 111. 317; Louisville City 
R. Co. v. City of Louisville, 71 Ky. 
(8 Bush) 415; Cape May, D. B. & 
S. P. R. Co. v. City of Cape May, 58 
N. J. Law, 565, 34 Atl. 397; West 
Jersey Traction Co. v. Camden 
Horse R. Co., 53 N. J. Eq. 163, 35 
Atl. 49; People v. O'Brien, 111 N. 
Y. 1, 18 N. E. 692, 2 L. R. A. 255; 
In re Board of Water Com'rs of Vil- 
lage of White Plains, 71 App. Div. 
544, 76 N. Y. Supp. 11. The rule ap- 
plied to a nonexclusive license or 
privilege. Pennsylvania R. Co. v. 
Philadelphia Belt Line R. Co., 10 
Pa. Co. Ct. R. 625. 

1254 Long Island Water Supply Co. 
v. City of Brooklyn, 166 U. S. 685; 
National Water-works Co. v. Kan- 
sas City (C. C. A.) 62 Fed. 853, 27 
L. R. A. 827; Fergus Falls Water 
Co. v. City of Fergus Falls, 65 Fed. 
586; Newburyport Water Co. v. 
City of Newburyport, 103 Fed. 584; 
City of Greenville v. Greenville 
Water Co., 125 Ala. 625, 27 So. 764; 
Stein v. McGrath, 128 Ala. 175, 30 
So. 792; Thomas v. City of Grand 
junction, 13 Colo. App. 80, 56 Pac. 
665. A city is not bound to pur- 
chase a water plant in preference 
to erecting one of its own through 
tne reservation and grant of a fran- 
chise the option to purchase by it. 

Burlington Water Co. v. Wood- 
ward, 49 iowa, 58; Crescent City 



Gas Light Co. v. New Orleans Gas 
Light Co., 27 La. Ann. 138; Rock- 
port Water Co. v. Inhabitants of 
Rockport, 161 Mass. 279, 37 N. E. 
168. The city authorized to pur- 
chase plant on payment of actual 
cost. Hudson Elec. Light Co. v. 
Inhabitants of Hudson, 163 Mass. 
346, 40 N. E. 109; Long v. City of 
Duluth, 49 Minn. 280, 51 N. W. 913; 
State v. City of Newark, 54 N. J. 
Law, 62, 23 Atl. 129. Option for 
purchase assumed and held capable 
of being exercised at any time. 
Ziegler v. Chapin, 59 Hun, 214, 13 
N. Y. Supp. 783. An option giving 
the right to the public authorities 
to acquire property or franchises 
by right of eminent domain within 
a specified time, expires after the 
lapse of that time. 

In re Board of Water Com'rs of 
Village of White Plains, 71 App. 
Div. 544, 76 N. Y. Supp. 11; Syra- 
cuse Water Co. v. City of Syracuse, 
116 N. Y. 167, 22 N. E. 381, 5 L. R. 
A. 546. An option to purchase it 
was held but did not impose on the 
city any exclusive duty in this re- 
spect; or could lawfully supply it- 
self with water from other sources. 
City of Chillicothe v. Logan Natural 
Gas & Fuel Co., 8 Ohio N. P. 88. 
This right is given by Ohio Rev. 
St. 2485. Philipsburg Water Co. 
v. Philipsburg Borough, 203 Pa. 562, 
53 Atl. 347; North Springs Water 
Co. v. City of Tacoma, 21 Wash. 



I 933 ITS CONTROL AND USE. 2181 

in some cases at regular recurring intervals thereafter. 1255 Where 
the grant is not exclusive in its character no compensation can be 
made for the license. 1256 This right is usually given to be exer- 
cised in the first instance at the end of a period which has been 
exclusive so far as privileges are concerned in favor of the 
grantee. After a failure to exercise the option it has been held 
that the license loses thereafter its exclusive character. Where 
the purchase price is not agreed upon, this question becomes then 
an important one. In a preceding section 125T has been given 
many authorities on this point and some quotations made from 
the leading decisions. In addition it might be added that in esti- 
mating the value of a company's plant, a contract with the city, 
if one exist, should be taken into consideration. 1258 An option to 
purchase, so it has been held, may be assigned by the city. 1258 

933. Exclusive contracts for supply of commodity. 

A public corporation may secure a supply of water or light 
through a contract with private persons exclusive or otherwise in 
its character. These organizations are usually given the power 

517, 58 Pac. 773, 47 L. R. A. 214; ply Co., 73 Hun, 499, 26 N. Y. Supp. 

Wheeling Gas Co. v. City of Wheel- 198. 

ing, 8 W. Va. 320. 1257 Montgomery Gas Light Co. v. 

Cooley, Const. Lim. (7th Ed.) p. Montgomery & E. R. Co., 86 Ala. 

398. "The grant of an exclusive 372, 5 So. 735; Braintree Water 

privilege will not prevent the legis- Supply Co. v. Inhabitants of Brain- 

lature from exercising the power of tree, 146 Mass. 482, 16 N. E. 420; 

eminent domain in respect there- Turner v. Revere Water Co., 171 

to." See 457, ante, with authori- Mass. 329, 40 L. R. A. 657; Griffin 

ties cited discussing the question v. Goldsboro Water Co., 122 N. C. 

of the purchase of a private plant 206, 41 L. R. A. 240. See, also, San 

on a fair and equitable basis. Diego Water Co. v. City of San 

1235 Cherryvale Water Co. v. City Diego, 118 Cal. 556, 50 Pac. 633, 38 

of Cherryvale, 65 Kan. 219, 69 Pac. L. R. A. 460. See 457 et seq. 

176; Covington Gas Light Co. v. isss Covington Gas Light Co. v. 

City of Covington, 22 Ky. L. R. 796, City of Covington, 22 Ky. L. R. 796, 

58 S. W. 805. The failure to exer- 58 S. W. 805; Town of Bristol v. 

cise the option at one time will not Bristol & W. Water-works Co., 23 

deprive a city of its right to exer- R. I. 274, 49 Atl. 974. 

cise it at the next period. City of 1259 Covington Gas Light Co. v. 

St. Louis v. St. Louis Gas Light City of Covington, 22 Ky. L. R. 796, 

Co., 70 Mo. 69. 58 S. W. 805. 

1256 i n re Long Island Water Sup- 



2182 



PUBLIC PROPERTY. 



933 



to determine their course of action in this respect; they are not 
limited to the construction of a municipal plant to supply the com- 
modities desired. 1260 The principles governing these contracts 
have been discussed at length in other sections of this work. 1261 
It is sufficient to say here that the authority for their execution 
must clearly appear 1262 and that public authorities are further 
limited by restrictions relative to the incurring of indebted- 
ness 1263 or the manner of raising or expending public moneys. 126 * 



1260 City of Detroit v. Circuit 
Judge of Wayne County, 79 Mich. 
384, 44 N. W. 622; Wade v. Oak- 
mont Borough, 165 Pa. 479, 30 Atl. 
959; Mauldin v. City Council of 
Greenville, 33 S. C. 1, 11 S. E. 434, 
8 Li. R. A. 291. See, also, authori- 
ties cited in 455, 896 & 904 et 
seq., ante. 

"ex See 455 et seq., ante. 

1262 winterport Water Co. v. In- 
habitants of Winterport, 94 Me. 
215, 47 Atl. 142, 1045; Lewick v. 
Glazier, 116 Mich. 493, 74 N. W. 
717. But a water contract is valid 
to the extent of powers granted in 
the village charter. St. Louis Gas 
Light Co. v. St. Louis G., F. & P. 
Co., 16 Mo. App. 52; People v. 
Sisson, 75 App. Div. 138, 77 N. Y. 
Supp. 376. 

1263 City of East St. Louis v. East 
St. Louis Gas Light & Coke Co., 98 
111. 415. A contract for lighting the 
streets which is fully carried out 
would be invalid because contrary 
to a charter provision in respect 
to the incurring of indebtedness by 
the city, is valid so far as executing 
on the part of the gas company. 

Searle v. Abraham, 73 Iowa, 507, 
35 N. W. 612; East Jordan Lum- 
ber Co. v. Village of East Jordan, 
100 Mich. 201, 58 N. W. 1012. A 
village may make a valid contract 
for a supply of water without a 
vote of the electors as required by 



statute in respect to the borrow- 
ing or expending of moneys for the 
construction of waterworks. Kiichli 
v. Minnesota Brush Elec. Co., 58 
Minn. 418, 59 N. W. 1088; Hum- 
phreys v. City of Bayonne, 55 N. J. 
Law, 241, 26 Atl. 81. But see New 
Orleans Gas Light Co. v. City of 
New Orleans, 42 La. Ann. 188, 7 So. 
559; Merrill R. & Lighting Co. v. 
City of Merrill, 80 Wis. 358, 49 N. 
W. 965. 

i2G4 Higgins v. City of San Diego, 
118 Cal. 524; Leadville 111. Gas Co. 
v. City of Leadville, 9 Colo. App. 
400; Grand Junction Water Co. v. 
City of Grand Junction, 14 Colo. 
App. 424, 60 Pac. 196; McGuire v. 
Rapid City, 6 Dak. 346, 5 L. R. A. 
752; Maine Water Co. v. City of 
Waterville, 93 Me. 586, 45 Atl. 830, 
49 L. R. A. 294; Winterport Water 
Co. v. Inhabitants of Winterport, 
94 Me. 215, 47 Atl. 142, 1045; Lamar 
Water & Elec. Light Co. v. City of 
Lamar (Mo.) 26 S. W. 1025; City of 
North Platte v. North Platte Water.- 
works Co., 56 Neb. 403, 76 N. W. 
906, Id., 50 Neb. 853, 70 N. W. 393; 
Suburban Elec. Co. v. Elizabeth 
City, 59 N. J. Law, 134; Shuttuck 
v. Smith, 6 N. D. 56; City of Cin- 
cinnati v. Holmes, 56 Ohio St. 104; 
McXeal v. City of Waco, 89 Tex. 
83; Stedman v. City of Berlin, 97 
Wis. 505, 73 N. W. 57. But see 
Creston Water-works Co. v. City of 



033 



ITS CONTROL AND USB. 



2183 



The rule of strict construction also applies to them in respect to 
the performance of conditions. 1205 The point has been raised 
against the validity of a contract for the supply of water or 
light in that there is effected an increase of indebtedness beyond 
a constitutional or statutory limit by reason of the obligation oi 
the contract to pay certain specified sums. This question has al- 
ready received sufficient consideration in previous sections. As a 
rule it is held that the making of a contract of this character ana 
extending through a term of years with provisions for future pay- 
ments, the obligation to make them is not considered a debt 
within the meaning of the phrase as ordinarily used. The only 
liability which arises is a present one for the payment of that 
part of a contract obligation already acquired and it being in all 
cases a contingent one based upon an actual rendition of the serv- 
ices performed. 1206 

Execution of contract. The subject of municipal contracts has 
been previously considered, 1267 but the principles might be em- 
phasized here in respect to the limited power or capacity of pub- 
lic corporations to contract 1268 and the urgent necessity for a 



Creston, 101 Iowa, 687, 70 N. W. 
739 ; State v. City of Crete, 32 Neb. 
568. 49 N. W. 272. 

"as city of Austin v. Bartholo- 
mew (C. C. A.) 107 Fed. 349; City 
of Winfield v. Winfleld Gas Co., 37 
Kan. 24, 14 Pac. 499; Belfast Water 
Co. v. City of Belfast, 92 Me. 52, 42 
Atl. 235, 47 L. R. A. 82; Village of 
Bolivar v. Bolivar Water Co., 62 
App. Div. 484, 70 N. Y. Supp. 750; 
Ellensburgh Water Supply Co. v. 
City of Ellensburgh, 13 Wash. 554, 
43 Pac. 531; Monroe Water-works 
Co. v. City of Monroe, 110 Wis. 11, 
85 N. W. 685. But see City of 
Greenville v. Greenville Water- 
works Co., 125 Ala. 625, 27 So. 764; 
City of New Orleans v. Firemen's 
Charitable Ass'n, 43 La. Ann. 447, 
9 So. 486. 

'sec Relhl v. City of South Bend, 
76 Fed. 921, 36 L. R. A. 228; City 
Water Supply Co. v. City of Ottum- 



wa, 120 Fed. 309; State v. McCau- 
Ipy, 15 Gal. 429; Hay v. City of 
Springfield, 64 111. App. 671; City of 
East St. Louis v. East St. Louis 
Gas Light & Coke Co., 98 111. 415; 
Culbertson v. City of Fulton, 127 
111. 30; Crowder v. Town of Sulli- 
van, 128 Ind. 486, 13 L. R. A. 647; 
Town of Gosport v. Pritchard, 156 
Ind. 400; French v. City of Bur- 
lington, 42 Iowa, 614 ; Lamar Water 
& Elec. Light Co. v. City of La- 
mar, 140 Mo. 145; Brown v. City of 
Corry, 175 Pa. 528; Winston v. City 
of Spokane, 12 Wash. 524; Spilman 
v. City of Parkersburg, 35 W. Va. 
605. But see Prince v. City of 
Quincy, 105 111. 138; Id., 128 111. 443. 
See, also, City of Valparaiso v. 
Gardner, 97 Ind. 1. See 149, p. 
322 and 460, p. 1167. 

1267 See 246 et seq., ante. 

1268 East St. Louis Gas Light & 
Coke Co. v. City of East St. Louis, 



2184 



PUBLIC PROPERTY. 



934 



strict compliance with all prescribed formalities in respect to the 
manner, 1289 form, 1270 or time of their execution. 

934. Additional servitude; subject further considered. 

In the previous discussion commencing, approximately, with 
section 795, various rights of abutting owners have been sug- 
gested from time to time and as one of the most important, that 
to demand and collect compensation for use or occupation of a 
public highway by some private or quasi public agency engaged 
in the business of supplying water, light, telephone, telegraph or 
transportation service. A reference is made in the notes dealing 
with the question. A steam or commercial road is universally re- 
garded as an additional burden or servitude whether the high- 
way is an urban or interurban one. 1271 A street railway proper is 
almost as universally regarded as not an additional burden upon 
a street proper though there are some dissenting cases, 1272 and 



47 111. App. 411; Nicholasville Wat- 
er Co. v. Board of Councilmen, 18 
Ky. L. R. 592, 36 S. W. 549; Smith 
v. Dedham, 144 Mass. 177, 10 N. E. 
782; State v. McCardy, 62 Minn v 
509, 64 N. W. 1133; Grand Island 
Gas Co. v. West, 28 Neb. 852, 45 
N. W. 242. Under a contract illegal 
because of the interest of a public 
official in it, a city can be com- 
pelled to pay the fair value of light 
actually furnished. Borough of 
Milford v. Milford Water Co., 124 
Pa. 610, 17 Atl. 185, 3 L. R. A. 122; 
Seltzer v. Metropolitan Elec. Co., 
199 Pa. 100, 48 Atl. 861. 

12.69 Lake Charles Ice, Light & 
Water-works Co. v. City of Lake 
Charles, 106 La. 65, 30 So. 289. 
Officers de facto are competent to 
make a binding contract. Blank v. 
Kearney, 28 Misc. 383, 59 N. Y. 
Supp. 645. 

1270 City of Conyers v. Kirk, 78 
Ga. 480, 3 S. E. 442. A contract for 
street lighting informal in its char- 
acter may become obligatory by 



ratification through the use of the 
light furnished for a considerable 
time without any objection to its 
informality. American Lighting Co. 
v. McCuen, 92 Md. 703, 48 Atl. 352. 
See, also, Dallas Elec. Co. v. City 
of Dallas, 23 Tex. Civ. App. 323, 58 
S. W. 153. A lighting contract not 
formally executed but carried out 
for a series of years can be en- 
forced; the city is liable for the 
services furnished during that time. 

i2TiSee 841, ante. 

1272 Chicago & C. Terminal R. 
Co. v. Whiting H. & E. C. St. R. Co., 
139 Ind. 297, 38 N. E. 604; Mord- 
hurst v. Ft. Wayne & S. W. Trac- 
tion Co., 163 Ind. 268, 71 N. E. 642, 
where in the syllabus it is said: 
"An interurban street passenger 
railway with the necessary turn- 
outs, switches, feed wires and poles 
in and along a public street though 
anthorized to transport light ex- 
press matter, passengers, baggage 
and United States mails does not 
impose any additional servitude on 



g 934- ITS CONTROL AND USE. 2185 

a change to electricity or the use of that power imposes no addi- 



the street entitling abutting prop- 
erty owners to compensation." 

Appeal of Milbridge & C. Elec. 
R. Co., 96 Me. 110 51 Atl. 818; At- 
torney General v. Metropolitan R. 
Co., 125 Mass. 515; Grand Rapids, 
& G. R. Co. v. Heisel, 38 Mich. 62. 
"A street railway for local purposes, 
so far from constituting a new bur- 
den, is supposed to be permitted 
because it constitutes a relief to 
the street; it is in furtherance of 
the purpose for which the street is 
established, and relieves the pres- 
sure of local business and local 
travel instead of constituting an 
embarrassment. It is for this rea- 
son that the owners of lands over 
which a city street is laid are de- 
nied compensation if a street rail- 
way is subsequently authorized 
within it; if they were compensated 
for the taking of their land origi- 
nally they are supposed to be com- 
pensated for all possible los?es 
they may suffer from its being put 
to proper uses as an avenue of lo- 
cal trade and passage, and if with- 
out compensation they dedicated it 
to the public, they are supposed to 
have contemplated and assented to 
all such uses." 

Hester v. Durham Traction Co., 
138 N. C. 288, 50 S. E. 711; Rafferty 
v. Central Traction Co., 147 Pa. 
579, 23 Atl. 884; La Crosse City R. 
Co. v. Higbee, 107 Wis. 389, 83 N. 
W. 701, 51 L. R. A. 923. "In de- 
termining whether a street railroad 
is an additional burden upon the 
land already set aside for the pub- 
lic use as a highway, we are to 
look to the manner of its construc- 
tion and use, and not to the motive 
power. The latter may be steam, 



horse, electric or compressed air 
power, and the road and its opera- 
tion be consistent with the common 
public use for which the street was 
originally designed, and not vio- 
late private rights; and either may 
be so used, and the road may be so 
constructed and operated as to have 
the opposite effect. Electric rail- 
roads constructed in the usual way 
and operated by the use of the 
overhead trolley wire supported by 
cross-wires fastened to poles set 
at the curb lines of the street, or 
otherwise located so as not to ma- 
terially interfere with the ordinary 
common use of the street, belong 
to the former class, as we shall see 
later; and that has become so 
firmly established by the courts 
that it cannot be considered open 
to serious question." But see 
Jaynes v. Omaha St. R. Co., 53 Neb. 
631, 74 N. W. 67, 39 L. R. A. 751, 
where the court held that the poles 
and wires of an electric railway 
constituted an additional burden. 
It was said in the opinion: "The 
use made of these streets by the 
railway company is not one com- 
mon .with that of the public gen- 
erally; its poles and wires remain 
and must remain and exclusively 
occupy particular portions of the 
street and continuously exclude the 
public from such portions. Whether 
a use made of a street is an addi- 
tional burden upon the easement 
we do not think depends upon the 
motive power which moves the ve- 
hicle employed. It depends upon 
the question whether the vehicle 
and appliances used in and neces- 
sary to effectuate that purpose per- 
manently and exclusively occupy 



2186 



PUBLIC PROPERTY. 



934 



tional burden. 1273 The construction and operation of an elevated 
.road is ordinarily regarded as entitling the abutting owner to 
additional compensation. 127 * The construction and operation of 
telephone, telegraph and electric light or power systems upon a 
suburban highway, by almost universal authority is regarded as 



all or a portion of the street to the 
continued exclusion of the rest of 
the public. If they do not, then it 
is not an additional burden. If 
they do, it is." See, also, very full 
note in 106 Am. St. Rep. p. 232. 
See 844 et seq., ante. 

1273 Birmingham Traction Co. v. 
Birmingham & R. Blec. Co., 119 
Ala. 137, 24 So. 502, 43 L. R. A. 
233; General Elec. R. Co. v. Chicago 
& W. I. R. Co., 184 111. 588, 56 N. E. 
963; Snyder v. Ft. Madison St. R. 
Co., 105 Iowa, 284, 75 N. W. 179, 41 
L. R. A. 345; Louisville Bagging 
Mfg. Co. v. Central Pass. R. Co., 95 
Ky. 50; Taylor v. Portsmouth, K. & 
Y. St. R. Co., 91 Me. 193, 39 All. 
560; Poole v. Falls Road Elec. R. 
Co., 88 Md. 533, 41 Atl. 1069; Eustis 
v. Milton St. R. Co., 183 Mass. 586, 
67 N. E. 663; Dean v. Ann Arbor 
St. R. Co., 93 Mich. 330, 53 N. W. 
396; Placke v. Union Depot R. Co., 
140 Mo. 634, 41 S. W. 915; Roebling 
v. Trenton Pass. R. Co., 58 N. J. 
Law, 666, 34 Atl. 1090, 33 L. R. A. 
129; Budd v. Camden Horse R. Co., 
70 N. J. Law, 782, 59 Atl. 229; Hud- 
son River Tel. Co. v. Watervliet 
Turnpike & R. Co., 135 N. Y. 393, 
32 N. E. 148, 17 L. R. A. 674; Cum- 
berland Teleg. & Tel. Co. v. United 
Elec. R. Co., 93 Tenn. 492, 29 S. W. 
104, 27 L. R. A. 236; Reid v. Nor- 
folk City R. Co., 94 Va. 117, 26 S. E. 
428, 36 L. R. A. 274; La Crosse 
City R. Co. v. Higbee, 107 Wis. 389, 
83 N. W. 701, 51 L. R. A. 923;Youn- 
kin v. Milwaukee Light, Heat & 
Traction Co., 120 Wis. 477, 98 N. W. 



215; Western Pav. & Supply Co. v. 
Citizens' St. R. Co. (Ind.) 25 Am. 
St. Rep. 479, with note. But see 
Jaynes v. Omaha St. R. Co., 53 Neb. 
631, 74 N. W. 67, 39 L. R. A. 751; 
Street R. Co. v. Doyle, 88 Tenn. 747, 
13 S. W. 936, 9 L. R. A. 100. 

1274 New York El. R. Co. v. Fifth 
Nat. Bank, 135 U. S. 432; Freiday 
v. Sioux City Rapid Transit Co., 92 
Iowa, 191, 60 N. W. 656, 26 L. R. A. 
246; De Geofroy v. Merchants' 
Bridge Terminal R. Co., 179 Mo. 
698, 79 S. W. 386. But see Jones 
v. Erie & W. V. R. Co., 151 Pa. 30, 
25 Atl. 134, 17 L. R. A. 758. The 
construction of an electric road of 
itself imposes no additional servi- 
tude but if it interferes with the 
private easements of the abutting 
owner, he is entitled to compensa- 
tion. See, also, the Illinois cases 
where it is held that an elevated 
railroad is not an additional bur- 
den, yet, abutting owners are en- 
titled to compensation under the 
Illinois constitutional provision rel- 
ative to the taking of private prop- 
erty for a public use without just 
compensation. See the following 
cases: Doane v. Lake St. El. R. 
Co., 165 111. 510, 46 N. E. 520, 36 L. 
R. A. 97; Aldrich v. Metropolitan 
W. S. R. Co., 195 111. 456, 63 N. E. 
155, 57 L. R. A. 237, and Aldis v. 
Union El. R. Co., 203 111. 567, 68 N. 
E. 95. 

See, also, Baker v. Boston El. R. 
Co., 183 Mass. 178, 66 N. E. 711, and 
see 848, ante. 



ITS CONTROL AND USB. 



2187 



an additional servitude for which the owner can recover com- 
pensation. 1275 In respect to the use by these latter facilities of 
urban highways, the cases are divided, though the weight of au- 
thority as based upon the better reasons, regards them as an 
additional burden with its resulting consequences in favor of 
the abutter. 1276 A clear distinction, however, appears in the use 



1275 Postal Telegraph-Cable Co. v. 
Eastern, 170 111. 513, 49 N. E. 365, 
39 L. R. A. 722; Gray v. York State 
Tel. Co., 92 App. Div. 89, 86 N. Y. 
Supp. 771; Donovan v. Allert, 11 N. 
D. 289, 91 N. W. 441, 58 L. R. A. 
775; Kirby v. Citizens' Tel. Co., 17 
S. D. 362, 97 N. W. 3; Maxwell v. 
Central Dist. & Printing Tel. Co., 
51 W. Va. 121, 41 S. E. 125; Krue- 
ger v. Wisconsin Tel. Co., 106 Wis. 
96, 81 N. W. 1014, 50 L. R. A. 298. 
But see McCann v. Johnson County 
Tel. Co., 9 Kan. 210, 76 Pac. 870; 
Cumberland Telep. & Tel. Co. v. 
Avrite, 27 Ky. L. R. 394, 85 S. W. 
204; Gulf Coast Ice & Mfg. Co. v. 
Bowers, 80 Miss. 570, 32 So. 113; 
Palmer v. Larchmont Elec. Co., 158 
N. Y. 231, 52 N. E. 1092, 43 L. R. A. 
672. "The care, management and 
control of the public ways devolve 
upon the local municipal govern- 
ment in which they are located, and 
it is the duty of the local govern- 
ment to maintain them in such 
condition that the public, by the 
exercise of due" care, may pass over 
them in safety. In the darkness of 
the night, in crowded thorough- 
fares, light is an important aid, 
largely tending to promote the con- 
venience, as well as the safety, of 
the traveling public. It is not only 
one of the uses to which the public 
ways may be devoted, but in the 
cases of crowded thoroughfares a 
duty devolves upon the munici- 
pality of supplying it. In such 



cases it is one of the burdens upon 
the fee which must be borne as an 
incident to the public right of trav- 
eling over the way, and is deemed 
one of the uses for which the land 
was taken as a public highway." 
See, also, Lowther v. Bridgeman 
(W. Va.) 50 S. E. 410. See 833, 
ante, with cases cited. 

1270 Stowers v. Postal Telegraph- 
Cable Co., 68 Miss. 559, 9 So. 356, 
12 L. R. A. 864; Bronson v. Albion 
Tel. Co. (Neb.) 93 N. W. 201; Hal- 
sey v. Rapid Transit St R. Co., 47 
N. J. Eq. 380, 20 Atl. 859; Callen v. 
Columbus Edison Elec. Light Co., 
66 Ohio St. 166, 64 N. E. 141, 58 L. 
R. A. 782; Central .Union Tel. Co. 
v. Falley (Ind.) 10 Am. St. Rep. 
128, with note; Chesapeake & P. 
Tel. Co. v. MacKenzie, 74 Md. 36, 
21 Atl. 690, 28 Am. St. Rep. 229. 
with full notes. But see Loeber v. 
Butte General Elec. Co., 16 Mont. 1; 
Tuttle v. Brush Elec. 111. Co., 50 
N. Y. Super. Ct. (IS J. & S.) 464; 
MeLean v. Brush Elec. Lighting 
Co., 9 Wkly. Law Bui. 65, 1 Am. 
Electrical Cases, 483. "It seems 
to me clear then, from principle 
and authority that although the 
uses to which a street may be put, 
under a grant for street purposes, 
may include not only th<3 sewers, 
water-pipes and gas-pipes, as these 
are all put under the ground, and 
do not interfere with the abutting 
lot owner, it is equally clear that 
this right cannot be extended so as 



2188 



PUBLIC PROPERTY. 



934 



of streets proper for furnishing a supply of water or light to a 
public corporation for street lighting and other public purposes 
or to effect a sale of these commodities to private consumers. In 
the former case the weight of authority, as will be found upon an 
examination of the cases cited, is to the effect that no compensation 
can be recovered while the latter use is for a private purpose 
and should impose an additional servitude. 1277 The use of urban 
roads for gas and water pipes lawfully laid either by public au- 
thorities or private persons imposes no additional burden 12T8 and 



to impose any burden, no matter 
how slight, on the original proprie- 
tor, or his successor in the owner- 
ship of the abutting lot, unless a 
new grant be made, in short with- 
out obtaining the consent of the 
abutting lot owner, or otherwise ac- 
quiring his interest in the high- 
way." See 826 et seq., ante. 

1277 Johnson v. Thomson-Houston 
Elec. Co., 54 Hun, 469, 7 N. Y. Supp. 
716; Tiffany v. United States 111. 
Co., 51 N. Y. Super. Ct. (19 J. & S.) 
286. "Its business is to furnish 
light to the city corporation for the 
public lighting of the streets, and 
to private individuals to light pri- 
vate houses. The former may in- 
volve a public and ordinary use of 
the street; the latter would involve 
a use of the street for private pur- 
poses." Joyce, Elec. Law, 332. 
"It can hardly be contended that 
the use of streets for this purpose 
(private lighting) is for the fur- 
therance of any of the purposes 
for which the street is dedicated or 
taken. It is not a use in aid of 
travel, commerce, or the communi- 
cation of intelligence. It is, how- 
ever, an occupation of a portion of 
the street to the exclusion of the 
traveling public, in so far as the 
portion of the street's surface occu- 
pied by it is affected, and is an 
encroachment upon the rights of 



the abutting owner, of which he 
should not be deprived, either with- 
out his consent or in pursuance 
of statutory provisions prescribing 
certain prerequisites to the taking 
of private property." 

12-8 city of Quincy v. Bull, 106 
111. 337; Lostutter v. City of Aurora, 
126 Ind. 436, 26 N. E. 184, 12 L. R. 
A. 259; City of Boston v. Richard- 
son, 95 Mass. (13 Allen) 160; 
Bishop v. North Adams Fire Dist., 
167 Mass. 364, 45 N. E. 925; Witch- 
er v. Holland Water-works Co., 66 
Hun, 619, 20 N. Y. Supp. 560; Crooke 
v. Flatbush Water-works Co., 29 
Hun (N. Y.) 245; Jayne v: Cort- 
land Water-works Co., 42 Misc. 263, 
86 N. Y. Supp. 571; Smith v. City 
of Goldsboro, 121 N. C. 350, 28 S. 
E. 479; Columbia Conduit Co. v. 
Com., 90 Pa. 307; West v. Bancroft, 
32 Vt. 367. But see In re Condem- 
nation of Land at Nahant, 128 Fed. 
185, where it was held in condem- 
nation proceedings by the United 
States that a town having a bene- 
ficial interest in an easement of 
aqueduct was entitled to compensa- 
tion upon its being taken for 
another public use and that in lay- 
ing a water pipe under a public 
highway, a town acted in the same 
capacity as a nonmunicipal water 
company and was not entitled to 
compensation for the easement in 



935 ITS DISPOSITION. 

the reverse of this rule is true in respect to rural highways. 1279 
Where no additional compensation is allowed in any of these 
cases, it is because the courts have considered the rendition of the 
service as a quasi public duty and the adjoining owner is sup- 
posed to have received his compensation in the performance of 
the duty upon reasonable terms and without discrimination. 128 * 

III. ITS DISPOSITION. 

935. Power of disposition. 

936. Limitations on power of disposition. 

937. Mode of disposition; sale or lease. 

938. Disposition by gift. 

939. Vacation of highways. 

940. Manner of vacation. 

941. Petition. 

942. Vacation; when effective. 

943. Damage to abutting owner.' 

944. Evidence. 

945. Abandonment of highways. 

946. Prescriptive title. 

947. Reversion. 

948. Collateral attack. 

949. Revocation of dedication as affecting right to vacate or 

abandon 

935. Power of disposition. 

The purposes for which public property may be acquired and 
the title obtained have been fully considered in subdivision 1 
of this chapter. The control, use and alienation of property de- 
pends entirely upon, and the right of disposition is limited by, 

the highway upon its being appro- N. E. 1066, 8 L. R. A. 602; Board 

priated for a superior public use. of Com'rs of Hamilton County, etc. 

City of Morrison v. Hinkson, 87 v. Indianapolis Nat. Gas Co., 134 

111. 587. The erection of a water Ind. 209, 33 N. E. 972; Ward v. 

tank in a street held an additional Triple State Natural Gas & Oil Co., 

servitude. 25 Ky. L. R. 116, 74 S. W. 709; 

See, also, 440, note 996, 752, Bloomfield F. R. N. G. Co. v. Calk- 

762, 807, 809 and 826 et seq., ante. ins, 62 N. Y. 386; Sterling's Ap- 

1279 Consumers' Gas T-rust Co. v. peal, 111 Pa. 35. See, also, authorl- 
Huntsinger, 14 Ind. App. 156, 42 N. ties cited in preceding note. 
E. 640; Kincaid v. Indianapolis issowhitcher v. Holland Water- 
Natural Gas Co., 124 Ind. 577, 24 works Co., 142 N. Y. 626. 



2190 PUBLIC PROPERTY. 935 

the character of the title and the purpose and the manner in 
which acquired. The state as a sovereign may acquire public 
property in that capacity for purposes of defense and the main- 
tenance of its political organization and in which neither the pub- 
lic as a whole nor any individual has any peculiar or personal 
rights. It is needless to say that its control and power of dis- 
position in respect to such property is complete, limited only by 
the character of the title which it may have acquired from pri- 
vate grantors. This condition applies to the state or the sover- 
eign alone and rarely, if ever, to its subordinate political or pub- 
lic agencies. 1281 The state together with all its subordinate 
governmental agencies may, again, acquire public property for 
public purposes; highways, public buildings, grounds, and the 
like which it acquires and holds solely as a trustee for the public 
for special uses and which it can thus acquire only because it is 
to be devoted to these uses. In respect to this property the 
power of disposition is limited not only by the purpose for which 
it has been acquired but also by rights both individual and collec- 
tive which the public possess in respect to the use and occupation 
of the property for the purpose for which acquired. The rule 
obtains here, therefore, that a public corporation cannot divest 
itself of its title or any interest therein in any manner that may 
occasion or result in an impairment in the least degree or the 
destruction of the public rights. 1282 This principle has been con- 

1281 Lewis, Em. Dom. (2d Ed.) well, 122 111. 339, 10 N. E. 378; 
2. Sherlock v. Village of Winnetka, 59 

1282 Mahoning County Com'rs v. 111. 389; School Tp. of Allen v. 
Young (C. C. A.) 59 Fed. 96, Id. 51 School Town of Macy, 109 Ind. 559, 
Fed. 585; Illinois & St. L. R. & C. 10 N. E. 578; Giltner v. Trustees of 
Co. v. City of St. Louis, 2 Dill. 70, Carrollton, 46 Ky. (7 B. Mon.) 680; 
Fed. Gas. No. 7,007; Beebe v. City Inhabitants of West Roxbury v. 
of Little Rock, 68 Ark. 39, 56 S. W. Stoddard, 89 Mass. (7 Allen) 158; 
791; City & County of San Fran- Green v. Putnam, 62 Mass. (8 
Cisco v. Itsell, 80 Cal. 57, 22 Pac. Gush.) 21; Urch v. City of Ports- 
74; City of Oakland v. Oakland mouth, 69 N. H. 162; Stenberg v. 
Water Front Co., 118 Cal. 160; Lo- State, 50 Neb. 127, Id., 48 Neb. 299, 
gan v. Clough, 2 Colo. 323; City of 67 N. W. 190; Milhau v. Sharp, 15 
Gainesville v. Caldwell, 81 Ga. 76; Barb. (N. Y.) 193; City of South- 
Bakewell v. Board of Education of port v. Stanly, 125 N. C. 464, 34 S. 
111. (111.) 33 N. E. 186, following E. 641; Thompson v. Nemeyer, 59 
Board of Education of 111. v. Bake- Ohio St. 486; McCotter v. Town 



* 936 ITS DISPOSITION. 2191 

stantly suggested in connection with a treatment of the subject 
of public highways and parks in previous sections. 1283 The state 
or its subordinate agencies to which has been expressly granted 
the power may, also, so it has been held in a few extreme cases, 
acquire property which it holds, possesses and uses in a private 
or proprietary sense. Its control or power of disposition over 
this property is limited by the same rules which apply to ordinary 
private ownership. 128 * It seems to the author unsound and illogi- 
cal that a governmental agent should be permitted to act in a 
dual capacity. It clearly should not engage in enterprises that 
long experience and conservative thought have regarded as 
private in all their essential characteristics and further undesir- 
able for governmental action because of its consequent disas 
terous effect upon individual initiative and thrift. 

936. Limitations on power of disposition. 

A public corporation which has acquired property as a trustee 
for the public cannot, as already stated, act in such a manner as 
to deprive the public or its individual members of their personal 
or collective rights in the use of that property. The public cor- 
poration acts solely as a trustee; the community is regarded as 
a cestui qui trust and action inconsistent with or contrary to this 
relation will be .regarded as illegal. 1285 The most frequent appli- 

Council of New Shoreham, 21 R. Ind. 407, 43 N. E. 7; Brockman v. 

I. 43; Huron Water-works Co. v. City of Creston, 79 Iowa, 587, 44 N. 

City of Huron, 7 S. D. 9, 62 N. W. W. 822; Roberts v. City of Louis- 

975, 30 L. R. A. 848; City of San ville, 92 Ky. 95, 17 S. W. 216, 13 L. 

Antonio v. Lewis, 15 Tex. 388; R. A. 844. Injunction will lie to 

Lampson v. Town of New Haven, 2 restrain illegal action In this re- 

Vt. 14. spect. 

1283 see 423 et seq., 733, ante. Methodist Episcopal Church v. 

las* Town of Searcy v. Yarnell, City of Hoboken, 33 N. J. Law, 13. 

47 Ark. 269, 1 S. W. 319; Cum- Local authorities have power to 

mings v. City of St. Louis, 90 Mo. regulate the public use of dedicated 

259. lands but this right is vested in 

1285 Marine Ins. Co. v. St. Louis, them only as representatives of 

I. M. & S. R. Co., 41 Fed. 643; the public. They cannot sell lands 

McCord v. Pike, 121 111. 288, 12 N. so dedicated nor lease or extin- 

E. 259; Union Coal Co. v. City of guish the uses for which they were 

La Salle, 136 111. 119, 26 N. E. 506, dedicated neither can they employ 

12 L. R. A. 326; State v. Hart, 144 them in any way different from the 



2192 



PUBLIC PROPERTY. 



5936 



cation of this rule is in connection with the acquirement, use and 
disposition of public highways and public grounds. 1286 A public 
corporation may, as already stated, in previous sections, 1287 ac- 
quire property for certain public or quasi public uses by gift 
from private individuals to be used for an especial purpose. The 
gift may be accompanied by conditions in respect to the use of 
the property thus donated and these conditions act, necessarily, 
as a legal restraint upon the power of the public corporation to 
dispose or alienate it or any interest therein. 1288 The manner in . 
which it acquired whether by purchase, prescription, dedication 
or through an exercise of the power of eminent domain will again 
act as a restraint or limitation upon a complete and full power 
of alienation or disposition on the part of the public corpora- 
tion. 1289 

Statutory authority. Public property may be acquired through 
the exercise of either an authority expressly granted or one which 
it may possess through the doctrine of implication. The grant 
of the express power to acquire property 'in many instances is 



purposes for which they were dedi- 
cated. New Jersey & N. E. Tel. 
Co. v. Jersey City Fire Com'rs, 34 
N. J. Eq. (7 Stew.) 117; Wenk v. 
City of New York, 69 App. Div. 
621, 75 N. Y. Supp. 1135 affirming 
36 Misc. 496, 73 N. Y. Supp. 1003; 
City of Pittsburg v. Epping Car- 
penter Co., 29 Pittsb. Leg. J. (N. S.) 
255; Lewis v. City of San Antonio, 
7 Tex. 298; Llano County v. 
Knowles (Tex. Civ. App.) 29 S. W. 
549; City of Cleburne v. Gulf, C. & 
S. F. R. Co., 66 Tex. 457, 1 S. W. 
342. See, also, 815, 816, ante. 

i2&6 People v. City of Albany, 4 
Hun (N. Y.) 675. See, also, 
815, 816, ante. 

1287 see 722 and 733, ante. 

1288 see 733. Douglas v. City 
Council of Montgomery, 118 Ala. 
599, 24 So. 745, 43 L. R. A. 376; Pres- 
cott v. Edwards, 117 Cal. 298, 49 
Pac. 178. An offer to dedicate 
for several years may be revoked. 



McCullough v. Board of Education 
of San Francisco, 51 Cal. 419; War- 
ren v. Lyons City, 22 Iowa, 351,. 
West Carroll Parish v. Gaddis, 34 
La. Ann. 928; Inhabitants of Buck- 
sport v. Spofford, 12 Me. 487; 
Plumb v. City of Grand Rapids, 
81 Mich. 381, 45 N. W. 1024; Pat- 
rick v. Y. M. C. A. of Kalamazoo, 
120 Mich. 185, 79 N. W. 208; Goode- 
v. City of St. Louis, 113 Mo. 257, 
20 S. W. 1048; Rowzee v. Pierce, 
75 Miss. 846, 23 So. 307, 40 L. R. 
A. 402. Property dedicated for 
public use as an ornamental part 
reverts to the original donors upon 
the abandonment by the public au- 
thorities for that purpose. Board 
of Education of Van Wert v. Inhabi- 
tants of Van Wert, 18 Ohio St. 221; 
Harris County v. Taylor, 58 Tex. 
690. But see Warren County Sup'rs 
v. Patterson, 56 111. Ill; Travis- 
County v. Christian (Tex. Civ, 
App.) 21 S. W. 119. 



937 



ITS DISPOSITION. 



2193 



accompanied by direct grant of the right of disposition 129 and 
property which has been acquired through the exercise of an im- 
plied power may also by the authority of the state be disposed of. 
The power of disposition in respect to the larger part of public 
property must be derived from the sovereign, 1291 and the prin- 
ciple applies that in cases of doubt as to the existence of the right, 
this doubt will be determined against the power rather than in 
its favor. 1292 



937. Mode of disposition; sale or lease. 

As stated in the preceding section, the authority to dispose by 
sale of public property may be directly granted by the state in 
those cases where the action is legally possible. The power must 
be derived from the state 1293 and by its terms it may be either 



i2S9 Brooklyn Park Com'rs v. 
Armstrong, 3 Lans. (N. Y.) 429; 
Portland & W. B. R. Co. v. City of 
Portland, 14 Or. 188, 12 Pac. 265. 
See 722 et seq., 739 et seq., and 
743 et seq., ante. 

1290 Wells v. Pressy, 105 Mo. 164, 
16 S. W. 670; Taylor v. Hoya, 9 
Tex. Civ. App. 312, 29 S. W. 540. 

1291 Cohas v. Raisin, 3 Cal. 444; 
Fiudla v. City & County of San 
Francisco, 13 Cal. 534; Hart v. Bur- 
nett, 15 Cal. 530; Denver & S. R. 
Co. v. Denver City R. Co., 2 Colo. 
673; Kurd v. Hamill, 10 Colo. 174, 
14 Pac. 126. A public corporation 
may be liable to a purchaser for 
failure of title. See, also, as hold- 
ing the same, Nelson v. Hamilton 
County, 102 Iowa, 229, 71 N. W. 
206, and Sanders v. Sexton, 36 
Misc. 574, 73 N. Y. Supp. 1095; 
Lyman v. Gedney, 114 111. 388; . 
Harney v. Indianapolis, C. & D. R. 
Co., 32 Ind. 244; Harrison v. Palo 
Alto County, 104 Iowa, 383, 73 N. 
W. 872; Millsaps v. Town of Mon- 
roe, 37 La. Ann. 641; Congrega- 
tional Soc. in Lanesborough v. Cur- 
Abb. Corp. Vol. Ill 14. 



tis, 39 Mass. (22 Pick.) 320; City 
of Minneapolis v. Janney, 86 Minn. 
Ill, 90 N. W. 312; Brooklyn Park 
Com'rs v. Armstrong, 3 Lans. (N. 
Y.) 429; City of Cincinnati v. Dex- 
ter, 55 Ohio St. 93, 44 N. E. 520; 
Thompson v. Nemeyer, 59 Ohio St. 
486, 52 N. E. 1024. A municipal 
corporation has power to sell its 
gas plant under the power to pur- 
chase real estate and other prop- 
erty for the use of the corporation 
and to sell the same as given in 
Rev. St. 1692, subd. 34. City of 
Ogden City v. Bear Lake & River 
Water-works & Irr. Co., 16 Utah, 
440, 52 Pac. 697, 41 L. R. A. 305; 
Callvert v. Windsor, 26 Wash. 3,68, 
67 Pac. 91. See, also, first para- 
graph in following section with au- 
thorities cited. 

1292 Knight v. Haight, 51 Cal. 169; 
Jefferson County v. Grafton, 74 
Miss. 435, 21 So. 247, 36 L. R. A. 
798; Atherton v. Johnson, 2 N. H. 31. 

1293 Fidelity Trust & Guaranty 
Co. v. Fowler Water Co., 113 Fed. 
560. A municipal corporation has 
no power to encumber its property 



2194 



PUBLIC PROPERTY 



937 



what can be termed an imperative authority or a discretionary 
one. These phrases are almost self-explanatory. In the case of 
the former, certain action is made obligatory by the state. In the 
case of the latter, the public authorities are vested with a dis- 
cretionary power, to be exercised or not, as their good judgment 
and discretion may determine ; the necessity, desirability or feasi- 
bility of a disposition of public property being the determining 
elements in arriving at an exercise of the power thus granted. 1204 
Where the power of sale is discretionary, the question of consid- 
eration is also for the authorities to determine. 1295 

Manner of sale. Where authority is granted for the sale of 
public property, the manner of the sale may be prescribed by 
statute in detail and certain formalities and preliminary action 



by mortgage in the absence of ex- 
press legislative authority, and, 
further, is without power to pur- 
chase and hold property subject 
to a mortgage. Bartlett v. Craw- 
ford, 36 Ark. 637; City of Oakland 
Water Front Co., 118 Cal. 160, 
50 Pac. 277; McCaslin v. State, 44 
Ind. 151. The authority to sell 
certain lands is authorized under a 
law entitled "an act to establish a 
house of refuge for juvenile offend- 
ers." 

Shannon v. O'Boyle, 51 Ind. 565. 
County commissioners have power 
to sell shares of stock owned by 
the company in a railroad company. 
City of Terre Haute v. Terre Haute 
Water- works Co., 94 Ind. 305; Page 
County v. American Immigrant Co., 
41 Iowa, 115. Considering the pow- 
er of a county in Iowa to sell 
swamp lands. Clark v. City of 
Providence, 16 R. I. 337, 15 Atl. 
763, 1 L. R. A. 725; Mowry v. City 
of Providence, 16 R. I. 422, 16 Atl. 
511; Huron Water-works Co. v. 
City of Huron, 7 S. D. 9, 62 N. W. 
975, 30 L. R. A. 848. A municipality 
cannot dispose of its waterworks 
without special legislative author- 



ity. See last paragraph of pre- 
ceding section. 

1294 Morgan v. Johnson (C. C. A.) 
106 Fed. 452; People v. Middleton, 
14 Cal. 540; Ellis v. Commissioners 
of Funded Debt, 38 Cal. 629; Coop- 
ers v. City of San Jose, 55 Cal. 
599; Martin v. Townsend, 32 Fla. 
318, 13 So. 887; Lyman v. Gedney, 
114 111. 388, 29 N. E. 282; Inhabi- 
tants of Nobleboro v. Clark, 68 Me. 
87; Bowlin v. Furman, 28 Mo. 427; 
Cummings v. City of St. Louis, 90 
Mo. 259, 2 S. W/130; Wright v.. 
Town of Victoria, 4 Tex. 375. 

1295 Roberts v. Northern Pac. R. 
Co., 158 U. S. 1, affirming 42 Fed. 
734; distinguishing Whiting v. She- 
boygan & F. du. L. R. Co., 25 Wis. 
167; McConnell v. Hutchinson, 71 
Iowa, 512, 32 N. W. 481; Spitzer v. 
Runyan, 113 Iowa, 619, 85 N. W. 
782; City of Minneapolis v. Janney, 
86 Minn. Ill, 90 N. W. 312; 
Schanck v. City of New York, 10 
Hun (N. Y.) 124; City of Cincinnati 
v. Dexter, 55 Ohio St. 93, 44 N. E. 
520; State v. Taylor, 107 Tenn. 455, 
64 S. W. 766. But see Adamson v. 
Nassau Elec. R. Co., 12 Misc. 600, 
33 N. Y. Supp. 732. 



937 



ITS DISPOSITION. 



2195 



required. 1296 A sale may only be legally made after public ad- 
vertisement and consequent sale to the highest bidder 1297 or af- 
firmative action by voters. 1298 Where a disposition of public 
property is the consequent result of certain authority or of spe- 
cific municipal action, the rule of strict construction will apply 
and the application of this rule, as it is well known, operates as 
a limitation upon the exercise of an alleged right. 1299 That action 



1296 Morgan v. Johnson (C. C. 
A.) 106 Fed. 452. Where no mode 
is prescribed by statute the adop- 
tion of a motion by a city council 
authorizing and directing the con- 
veyance of property is as effica- 
cious as the passage of an ordi- 
nance. Gordon v. City of San 
Diego, 101 Cal. 522, 36 Pac. 18, af- 
firming (Cal.) 32 Pac. 885; City of 
Macon v. Dasher, 90 Ga. 195, 16 S. 
E. 75. Where a deed is regular on 
its face and executed under the 
appropriate seal by the proper au- 
thorities, a presumption exists in 
favor of its validity and in favor 
of the grantee. McCord v. Pike, 
121 111. 288, 12 N. E. 259; City of 
Chicago v. English, 80 111. App. 163. 
The mayor of a city is the proper 
officer to execute a lease. Platter 
v. Elkhart County Com'rs, 103 Ind. 
360. An order by county commis- 
sioners to sell county property is 
a ministerial act. Chouquette v. 
Barada, 33 Mo. 249. A deed exe- 
cuted under authority of law by 
a municipal corporation is pre- 
sumed to have been executed in 
pursuance thereof. City of New 
York v. Hart, 16 Hun (N. Y.) 380; 
Straub v. City of Pittsburg, 138 Pa. 
356, 22 Atl. 93; Ferguson v. Hal- 
sell, 47 Tex. 421; State v. Forrest, 
7 Wash. 54, 33 Pac. 1079. 

1297 Buckner v. Hart, 52 Fed. 835; 
Thompson v. Alameda County 
Sup'rs, 111 Cal. 553; McPheeters v. 



Wright, 110 Ind. 519, 10 N. E. 634. 
The presumption exists in Indiana 
that under its laws after a lapse of 
thirty years a sale of school lands 
is regularly made. Nicholasville 
Water Co. v. Board of Councilmen, 
18 Ky. L. R. 592, 36 S. W. 549; 
Coquard v. School Dist., 46 Mo. App. 
6; City of New York v. Sonneborn, 
113 N. Y. 423; Kerr v. City of 
Philadelphia, 8 Phjla. (Pa.) 292; 
Wilson v. Gabler, 11 S. D. 206. But 
see Newbold v. Glen, 67 Md. 489, 10 
Atl. 242. Where property was sold 
without advertising as required by 
law and it was held that, it being 
sold for its full value, in the ab- 
sence of fraud, the sale was valid 
and vested a good title to the pur- 
chaser. 

1298 Douglas County v. Keller, 43 
Neb. 635, 62 N. W. 60. But a pur- 
chaser is not chargeable with con- 
structive notice of the fact that the 
proposition to sell such property 
was in fact defeated by a vote of 
the electors. Gumpert v. Hay, 202 
Pa. 340, 51 Atl. 968. Affirmative 
action of two successive grand jur- 
ies required. 

1299 Town of Searcy v. Yarnell, 47 
Ark. 269, 1 S. W. 319. The doc- 
trine of estoppel applies to a pub- 
lic corporation in all things per- 
taining to its proprietary rights 
the same as natural persons. Smith 
v. Morse, 2 Cal. 524; Hunnicutt v. 
City of Atlanta, 104 Ga. 1, 30 S. 



2196 



PUBLIC PROPERTY 



937 



of public authorities which involves a disposition of public prop- 
erty acquired for public uses and with public moneys should be 
restricted in every possible manner. The practical application 
of the principles above render attempts not made in accordance 
with the statute or without authority illegal and, therefore, 
void. 1300 The same rules practically apply to the lease of public 
property varied as the difference in legal effect between an abso- 
lute sale of property and a grant of a limited interest may war- 
rant or require. 1301 



E. 500; Crow v. Warren County 
Com'rs, 118 Ind. 51, 20 N. E. 642; 
Wisconsin v. Torinus, 24 Minn. 332; 
Jefferson County v. Grafton, 74 
Miss. 435, 36 L. R. A. 798; Urch v. 
City of Portsmouth, 69 N. H. 162, 
44 Atl. 112; Stenberg v. State, 50 
Neb. 127; Shimer v. Inhabitants of 
Town of Phillipsburg, 58 N. J. 
Law, 506, 33 Atl. 852; Town of East 
Hampton v. Bowman, 136 N. Y. 
521, 32 N. E. 987, affirming 60 Hun, 
163, 14 N. Y. Supp. 668. An action 
against a vendor for the purchase 
price is not a ratification of unau- 
thorized acts of public officials. 
Beckrich v. City of North Tona- 
wanda, 57 App. Div. 563, 67 N. Y. 
Supp. 992; Dean v. State, 34 Tex. 
Cr. R. 474, 31 S. W. 378. But see 
Lamed v. Jenkins, 113 Fed. 634. A 
deed authorized by law is presuma- 
bly valid and cannot be clearly as- 
sailed. 

isoo Young v. Mahoning County 
Com'rs, 53 Fed. 895; Haydenfeldt 
v. Hitchcock, 15 Cal. 514; Gardner 
v. Dakota County Com'rs, 21 Minn. 
33; Urch v. City of Portsmouth, 69 
N. H. 162, 44 Atl. 112; Den d. Os- 
borne v. Tunis, 25 N. J. Law (1 
Dutch.) 633; Gwyn v. Coffey, 117 N. 
C. 469, 23 S. E. 331; McReynolds v. 
Broussard, 18 Tex. Civ. App. 409, 45 
S. W. 760; Central Wharf & Ware- 
house Co. v. City of Corpus Christi, 



23 Tex. Civ. App. 390, 57 S. W. 982; 
Rice v. Ashland County, 114 Wis. 
130, 89 N. W. 908. 

isoi City of New Orleans v. 
Steamship Co., 87 U. S. (20 Wall.) 
387;; Illinois & St. L, R. & C. Co. 
v. City of St. Louis, 2 Dill. 70, Fed. 
Gas. No. 7,007; State v. Baxter, 50 
Ark. 447, 8 S. W. 188; Hirsch v. 
City of Brunswick, 114 Ga. 776, 40 
S. E. 786; State v. Taylor, 28 La. 
Ann. 460; Millsaps v. Town of Mon- 
roe, 37 La. Ann. 641; Dill v. Inhabit- 
ants of Wareham, 48 Mass. (7 
Metcf.) 438; Inhabitants of Town 
of Rockport v. Rockport Granite 
Co., 177 Mass. 246, 58 N. E. 1017, 51 
L. R. A. 779; Worden v. City of 
New Bedford, 131 Mass. 23. A 
city has the right to let one of its 
public buildings to be used occa- 
sionally for other purposes either 
with or without compensation. 
See, also, as holding the same, 
Jones v. Inhabitants of Sanford, 
66 Me. 585; and Stone v. City of 
Oconomowoc, 71 Wis. 155, 36 N. 
W. 829. 

Wells v. Pressy, 105 Mo. 164, 16 
S. W. 670; McDonald v. Schneider, 
27 Mo. 405; Southern Development 
Co. of Nevada v. City of Douglass, 
26 Nev. 50, 63 Pac. 38; Tilyou v. 
Town of Gravesend, 104 N. Y. 356, 
10 N. E. 542; Evans v. Hughes 
County, 3 S. D. 580, 54 N. W. 603; 



938 



ITS DISPOSITION. 



2197 



938. Disposition by gift. 

If the existence of a universal rule of action can be claimed as 
applying to all public corporations without limitation, that rule 
would undoubtedly be the universal restriction, constitutional, 
statutory or both or implied which prohibits a public corporation 
from making a grant or gift of public property or of public priv- 
ileges to private individuals solely for private uses. 1302 The rea- 
sons for this rule are too clear to warrant further discussion. 



Smith v. Heuston, 6 Ohio 101; Daily 
v. City of Philadelphia, 184 Pa. 594, 
39 Atl. 494, 39 L. R. A. 837. A lease 
by a city of its gas works for a long 
term of years when made within 
statutory authority is valid being 
made in its business or proprietary 
capacity. Town of Lemington v. 
Stevens, 48 Vt. 38. A lease of pub- 
lic lands by the town selectmen 
may be enjoined by them after the 
expiration of their term of office. 
As to the power of the public cor- 
poration to mortgage its property 
see the following cases: Adams v. 
City of Rome, 59 Ga. 765; Middle- 
ton Sav. Bank v. City of Dubuque, 
15 Iowa, 394, and Adams v. Mem- 
phis & L. R. R. Co., 42 Tenn. (2 
Coldw.) 645. 

1302 Roberts v. Northern Pac. R. 
Co., 158 U. S. 1, affirming 42 Fed. 
734, and distinguishing Whiting v. 
Sheboygan & F. du L. R. Co., 25 
Wis. 167; City of Eufaula v. McNab, 
7 Ala, 588; City of Patty v. Col- 
gan, 97 Cal. 251, 31 Pac. 1133, 18 L. 
R. A. 744. An appropriation for 
benefit of sufferers from floods held 
void. 

Bourn v. Hart, 93 Cal. 321, 28 Pac. 
951, 15 L. R. A. 431. An appropria- 
tion by the legislature to an individ- 
ual on account of personal injuries 
sustained by him while in service 
of the state and for which the state 



is not legally responsible is a gift 
within the California constitution, 
31, art. IV. Conlin v. Board of 
Sup'rs of City of San Francisco, 99 
Cal. 17, 33 Pac. 753, 21 L. R. A. 474; 
State v. Hart, 144 Ind. 107, 43 N. B. 
7, 33 L. R. A. 118; Brockman v. City 
of Creston, 79 Iowa, 587, 44 N. W. 
822; Trustees of Hawesville v. 
Hawes' Heirs, 69 Ky. (6 Bush) 232; 
Xiques v. Bujac, 7 La. Ann. 498; 
Allen v. Inhabitants of Marion, 93 
Mass. (11 Allen) 108. 

Wendell v. City of Newark, 63 
N. J. Law, 216, 42 Atl. 767. A city 
clerk is under no obligation to fur- 
nish gratuitously to private per- 
sons certified copies of municipal 
records. Adamson v. Nassau Elec- 
tric R. Co., 12 Misc. 600, 33 N. Y. 
Supp. 732; Bush v. Board of Sup'rs 
of Orange County, 10 App. Div. 542, 
42 N. Y. Supp. 417; City of 'New 
York v. Union Ferry Co., 55 How. 
Pr. (N. Y.) 138; Gumpert v. Hay, 
202 Pa. 340, 51 Atl. 968. Exchange 
of property between city and coun- 
ty held valid. Madden v. Hardy 
92 Tex. 613, 50 S. W. 926; Weekes 
v. City of Galveston, 21 Tex. Civ. 
App. 102, 51 S. W. 544; City of 
Cleburne v. Gulf, C. & S. F. R. Co., 
66 Tex. 457; Ellis v. Northern Pa- 
cific Ry. Co., 77 Wis. 114, 45 N. W. 
811. See, also, 410 et seq., ante. 
But see Stevenson v. Colgan, 91 Cal. 



2198 



PUBLIC PROPERTY. 



939 



939. Vacation of highways. 

In the legislature as representing the state is vested primarily 
an absolute control of all public property including highways, 
limited only by well recognized principles and constitutional pro- 
visions. It has power to open, improve, repair or vacate public 
highways, 1303 but this power is usually delegated to local or sub- 
ordinate political agencies because of greater convenience and 
a wider familiarity of the local authorities with local necessities 
and conditions. 1304 The power is one which is not usually implied 
but must be expressly given, 1305 but where the power is granted 



649, 27 Pac. 1089, 14 L. R. A. 459; 
Daggett v. Colgan, 92 Cal. 53, 28 
Pac. 51, 14 L. R. A. 474. Appropria- 
tion for state exhibit at World's 
Fair held constitutional. Thomas 
v. Inhabitants of Marshfield, 27 
Mass. (10 Pick.) 364; Belcher Sugar 
Refining Co. v. St. Louis Grain Ele- 
vator Co., 101 Mo. 192, 13 S. W. 822, 
8 L. R. A. 801; State v. Schwieck- 
ardt, 109 Mo. 496, 19 S. W. 47; Perry 
v. Keene, 58 N. H. 40. Aid to railroad 
held valid. State v. Babcock, 19 
Neb. 230. Donations may be made 
under legislative authority giving 
municipalities power to aid inter- 
nal improvements. Vaughn v. 
Board of Com'rs of Forsyth Coun- 
ty, 118 N. C. 636, 24 S. E. 425. 
County donations authorized to a 
state home for feeble-minded per- 
sons. Cutting v. Taylor, 3 S. D. 
11, 51 N. W. 949, 15 L. R. A. 691. 
Donations to private fire companies 
sustained. Lund v. Chippewa Co., 
93 Wis. 640, 67 N. W. 927, 34 L. R. 
A. 131. 

isosHaynes v. Thomas, 7 Ind. 38; 
City of Eudora v. Darling, 54 Kan. 
654, 39 Pac. 184; Haywood v. City 
of Charlestown, 34 N. H. 23; Bauer 
v. Andrews, 7 Phila. (Pa.) 359; 
McGee's Appeal, 114 Pa. 470. 

1304 state v. Putnam County 



Com'rs, 23 Fla. 632, 3 So. 164. The 
inclusion of a portion of a county 
road within the city limits does not 
affect a vacation of it. Williams 
v. Carey, 73 Iowa, 194, 34 N. W. 
813; Curry v. Place, 99 Mich. 524; 
Blocker v. State, 72 Miss. 720, 18 
So. 388; Gargan v. Louisville, N, 
A. & C. R. Co., 11 Ky. L. R. 489, 
12 S. W. 259; Lindsay v. City of 
Omaha, 30 Neb. 512, 46 N. W. 627; 
State v. Elizabeth City, 54 N. J. 
Law, 495, 24 Atl. 495; Newell v. 
Bassett, 33 N. J. Law, 26; Hammer 
v. Elizabeth City, 67 N. J. Law, 
129, 50 Atl. 451. The city of Eliza- 
beth is not authorized to make a con- 
ditional vacation of a public street. 
Buchholz v. New York, L. E. & W. 
R. Co., 148 N. Y. 640; McGee's Ap- 
peal, 114 Pa. 470, 8 Atl. 237; In re 
Vacation of Union Street, Potts- 
ville Borough, 140 Pa. 525, 21 Atl. 
406; Wetherill v. Pennsylvania R. 
Co., 195 Pa. 156, 45 Atl. 658. See, 
also, cases cited generally under 
this subject. 

1305 city of Texarkana v. Leach, 
66 Ark. 40, 48 S. W. 807; Florida 
Cent. & P. R. Co. v. Ocala St. & 
S. R. Co., 39 Fla. 306, 22 So. 692; 
City of Louisville v. Bannon, 18 
Ky. L. R. 10, 35 S. W. 120; City of 
Paris v. Lilleston, 22 Ky. L. R. 



939 



ITS DISPOSITION. 



2199 



to vacate the whole of the street, it has been held to include the 
implied right to narrow or vacate a portion of it. 1308 The vaca- 
tion of public highways is usually co-extensive with the power 
to establish them and dependent, so far as its existence and its 
delegation, therefore, upon the same principles of law. 1307 

Occasion for vacation. The vacation of highways as in the 
case of the creation of them is usually discretionary with local 
public authorities 130S and their action in this respect may be war- 
ranted and dictated by an insufficiency of revenues or the fact that 
a particular highway may be unnecessary or undesirable or all 
of these reasons combined. As stated later, a municipal corpo- 
ration proper is charged with a certain duty in respect to the 
maintenance of its streets and upon a failure to perform its duty 
there may res alt a liability to those sustaining injuries by reason 
of its nonperformance. The fact that a municipal corporation, 
therefore, may have insufficient revenues with which to properly 



1506, 60 S. W. 919; Hoboken Land 
& Imp. Co. v. City of Hoboken, 36 
N. J. Law, 540; Jersey City v. Cen- 
tral R. Co., 40 N. J. Eq. (13 Stew.) 
417; Brandt v. City of Milwaukee, 
69 Wis. 386, 34 N. W. 246; Brock 
v. Hishen, 40 Wis. 674. 

ISM; city of Mt. Carmel v. Shaw, 
155 111. 37, 39 N. E. 584, 27 L. R. A. 
580; Newell v. Bassett, 33 N. J. 
Law, 26; In re Swanson Street, 163 
Pa. 323, 30 Atl. 207. 

130- People v. Nankin Highway 
Com'rs, 15 Mich. 347. See cases on 
vacation of streets by municipal 
corporations in 33 Am. & Eng. Corp. 
Gas. 

isos Florida Cent. & P. R. R. R. 
Co. v. Ocala St. & S. R. R. Co., 39 
Fla. 306, 22 So. 692; Meyer v. Vil- 
lage of Teutopolis, 131 111. 552, 23 
N. E. 651. Where the discretion- 
ary power exists to vacate, it is no 
objection that it was exercised for 
the benefit of a private corporation. 
Leeds v. City of Richmond, 102 Ind. 
372; Weaver v. Templin, 113 Ind. 



298; Platt v. Chicago, B. & Q. R. 
Co. (Iowa) 31 N. W. 883; Spitzer 
v. Runyan, 113 Iowa, 619, 85 N. W. 
782; Pillsbury v. City of Augusta, 79 
Me. 71, 8 Atl. 150; Com. v. Inhabit- 
ants of Roxbury, 8 Mass. 457; Riggs 
v. Board of Education of Detroit, 27 
Mich. 262; Horton v. Williams, 99 
Mich. 423; Atkinson v. Wykoff, 58 
Mo. App. 86; Glasgow v. City of 
St. Louis, 107 Mo. 198; Knapp, 
Stout & Co. v. City of St. Louis, 
153 Mo. 560, 55 S. W. 104; Id., Ib6 
Mo. 343, 56 S. W. 1102; Village of 
Bellevue v. Bellevue Imp. Co., 65 
Neb. 52, 90 N. W. 1002; United 
New Jersey R. & Canal Co. v. Na- 
tional Docks, etc. R. Co., 57 N. J. 
Law, 523, 31 Atl. 981; In re Road 
in McCandless Tp., 110 Pa. 605, 1 
Atl. 594; Attorney-General v. Shep- 
ard, 23 R. I. 9, 49 Atl. 39; State v. 
Taylor, 107 Tenn. 455, 64 S. W. 
766. But see Town of Cromwell v. 
Connecticut Brown Stone Quarry 
Co., 50 Conn. 470. See, also, 
807 et seq., ante. 



2200 



PUBLIC PROPERTY 



940 



repair and maintain public streets within its limits will be a valid 
reason for the vacation of some one or more of them. 1309 A pub- 
lic highway also whether urban or suburban many be rendered 
unnecessary or undesirable by reason of the opening or existence 
of other public roads. 1310 A vacation of a public highway is, 
therefore, based primarily upon a general benefit of the com- 
munity 1311 though the fact that it is sometimes done for the ad- 
vantage of abutting owners will not render a vacation void other- 
wise legal. 1312 



940. Manner of vacation. 

The vacation of a highway can only be effected through the 
carrying out of certain prescribed proceedings in an orderly man- 
ner. These may be originated either by the public authorities 



1309 Tuftonborough v. Fox, 58 N. 
H. 416; In re Palo Alto Road, 160 
Pa. 104; Anderson v. Turbeville, 46 
Tenn. (6 Cold.) 150. But see Ash- 
craft v. Lee, 81 N. C. 135. 

1310 Scutt v. Town of Southbury, 
55 Conn. 405, 11 Atl. 854; Ponder 
v. Shannon, 54 Ga. 187; Green v. 
Ayers, 31 Ind. 248; Limming v. 
Barnett, 134 Ind. 332, 33 N. E. 
1098; Rector v. Christy, 114 Iowa, 
471, 87 N. W. 489; Bradbury v. 
Walton, 14 Ky. L. R. 823, 21 S. W. 
869; Robertson v. McDowell, 15 
Ky. L. R. 503, 24 S. W. 7; Com. 
v. Inhabitants of Roxbury, 8 Mass. 
457; Phelps v. Pacific R. Co., 51 
Mo. 477; Bethlehem's Petition, 20 
N. H. 210; Town of Hopkinton's 
Petition, 27 N. H. 133; Petition of 
Maryborough, 45 N. H. 556; People 
v. Nichols, 51 N. Y. 470; Miller v. 
Oakwood Tp., 9 N. D. 623, 84 N. 
W. 556; De Forest v. Wheeler, 5 
Ohio St. 286 r In re Loretto Road, 
29 Pa. 350; In re Vacation of Henry 
Street, 123 Pa. 346, 16 Atl. 785; In 
re Vacation of Public Road in Palo 



Alto, 160 Pa. 104, 28 Atl. 649; In re 
Swanson Street, 163 Pa. 323, 30 Atl. 
207. 

1311 Douglass v. City Council of 
Montgomery, 118 Ala. 599, 24 So. 
745, 43 L. R. A. 376; Whitsett v. 
Union Depot & R. Co., 10 Colo. 
243, 15 Pac. 339; Smith v. Mc- 
Dowell, 148 III. 51, 35 N. E. 141, 22 
L. R. A. 393; Warren v. Lyons City, 
22 Iowa, 351; Glasgow v. City of 
St. Louis, 87 Mo. 678; Winchester 
v. Capron, 63 N. H. 605; Portland 
& W. V. R. Co. v. City of Portland, 
14 Or. 188; In re Palo Alto Road, 
160 Pa. 104. 

1312 city of Mt. Carmel v. Shaw, 
155 111. 37, 39 N. E. 584, 27 L. R. A. 
580, reversing 52 111. App. 429; 
Hayes v. Tyler, 85 Iowa, 126, 52 N; 
W. 116; City of Marshalltown v. 
Forney, 61 Iowa, 578; Knapp, Stout 
& Company v. City of St. Louis, 
153 Mo. 560, 55 S. W. 104; Village 
of Bellevue v. Bellevue Imp. Co., 
65 Neb. 52, 90 N. Y.~. 1002; State v. 
Elizabeth City, 54 N. J. Law, 462, 
24 Atl. 495. 



040 



ITS DISPOSITION. 



2201 



acting under statutory or charter authority 1313 or upon a peti- 
tion of those interested or the owners of abutting property own- 
ers, 1314 and the rule of strict construction applies to the author- 
ity both in respect to the existence of the power and the man- 
ner of its exercise. 1315 A highway cannot be legally vacated 



1313 Rankin v. Com'rs of Road 
Dist. No. 15, 97 111. App. 206; Mar- 
tin v. City of Louisville, 16 Ky. L. 
R. 786, 29 S. W. 864; ; Lathan v. In- 
habitants of Wilton, 23 Me. 125; 
Coakley v. Boston & Maine R. Co., 
159 Mass. 32, 33 N. E. 930; Ruton 
v. Adams (N. J. Law) 21 Atl. 937; 
Read v. City of Camden, 54 N. J. 
Law, 347, 24 Atl. 549. Consent of 
abutting owners not necessary. 

1314 Johnson v. People, 42 111. 
App. 402; Patton v. Creswell, 120 
Ind. 147, 21 N. E. 663; City of In- 
dianapolis v. Ritzinger, 24 Ind. 
App. 65, 56 N. E. 141; Devoe v. 
Smeltzer, 86 Iowa, 385, 53 N. W. 
287; Lorenzen v. Preston, 53. Iowa, 
580; Dunham v. Fox, 100 Iowa, 131, 
69 N. W. 436. A petitioner may 
withdraw his name at any time be- 
fore action is taken. Uptagraff v. 
Smith, 106 Iowa, 385, 76 N. W. 733; 
Sullivan v. Robbins, 109 Iowa, 235, 
80 N. W. 340. It is no ground for 
holding void the action of a county 
board in vacating a highway that 
one of the petitioners was in- 
duced through fraud to sign the 
petition. 

Millett v. Franklin County 
Com'rs, 80 Me. 427, 15 Atl. 24; In 
re Albers Petition, 113 Mich. 640, 
71 N. W. 1110; Baudistel v. Michi- 
gan Cent. R. Co., 113 Mich. 687, 71 
N. W. 1114; Spurgeon v. Hennessey, 
32 Mo. App. 83; State v. Board or 
Assessors of Taxes, 53 N. J. Law, 
319, 21 Atl. 938; New York, N. H. 
& H. R. Co. v. Village of New Ro- 



chelle, 29 Misc. 195, 60 N. Y. Supp. 
904; Excelsior Brick Co. v. Village 
of Haverstraw, 152 N. Y. 146, Io6 
N. E. 819, reversing 66 Hun, 631, 21 
N. Y. Supp. 99; Vedder v. Marion 
County, 28 Or. 77, 41 Pac. 3, 36 Pac. 
535, affirming 22 Or. 264; James v. 
City of Darlington, 71 Wis. 173, 36 
N. W. 834. 

1315 people v. Marin County, 103 
Cal. 223, 37 Pac. 203, 26 L. R. A. 
659; People v. Hibernia Sav. & 
L. Ass'n, 84 Cal. 634, 24 Pac. 295; 
Chicago Anderson Pressed Brick 
Co. v. City of Chicago, 138 111. 628, 
28 N. E. 756; Miller v. Schenck, 78 
Iowa, 372, 43 N. W. 225; City of 
Ottawa v. Rohrbough, 42 Kan. 253, 
21 Pac. 1061; Kansas Town Co. v. 
McLean, 7 Kan. App. 101, 53 Pac. 
76; England v. Duncan, 10 Kan. 
App. 577, 62 Pac. 710; State v. In- 
habitants of Oxford, 65 Me. 20; 
Com. v. Tucker, 19 Mass. (2 Pick.) 
44; City of Grand Rapids v. Grand 
Rapids & I. R. Co., 66 Mich. 42, 33 
N. W. 15; Campau v. Board of Pub- 
lic Works of City of Detroit, 86 
Mich. 372, 49 N. W. 39; Horton v. 
Williams, 99 Mich. 423, 58 N. W. 
369; McKay v. Doty, 63 Mich. 581, 
30 N. W. 591; Bigelow v. Brooks, 
119 Mich. 208, 77 N. W. 810; Miller 
v. Town of Corinna, 42 Minn. 391, 
44 N. W. 127; Street v. Town of 
Alden, 62 Minn. 160, 64 N. W. 157; 
McNair v. State, 26 Neb. 257, 41 N. 
W. 1099; State v. Demott, 14 N. J. 
Law (2 J. S. Green) 254; Condict 
v. Ramsey, 65 N. J. Law, 503, 47 



2202 



PUBLIC PROPERTY. 



941 



by a mere nonuser or a neglect on the part of the proper au- 
thorities to improve or repair, 1316 or by the laying out of an 
other road to take its place, 1317 though by statutory provisions 
or as based upon other reasons in some states this can be done. 1318 
Proceedings to vacate highways are regulated by local statutes 
which vary materially in the different states and it is impossible 
to state more than a few general principles applicable to the sub- 
ject. 

941. Petition. 

That orderly manner in which a highway must be vacated in- 
volves a petition, ordinance or other municipal action as may be 
required, notice to interested parties, a hearing at which remon- 



Atl. 423; Holtz v. Diehl, 26 Misc. 
224, 56 N. Y. Supp. 841; People v. 
Griswold, 67 N. Y. 59; In re City of 
New York, 166 N. Y. 495, 60 N. E. 
180; Heddleston v. Hendricks, 52 
Ohio St. 460, 40 N. E. 408; Hud- 
dleston v. City of Eugene, 34 Or. 
343, 43 L. R. A. 444; In re Osage 
St., 90 Pa. 114; Wead v. St. Johns- 
bury & L. C. R. Co., 64 Vt. 52, 24 
Atl. 361. The presumption exists, 
however, that all steps taken In 
changing a highway and vacating 
the old one were regular. Baines 
v. City of Janesville, 100 Wis. 369, 
75 N. W. 404; City of Ashland v. 
Chicago & N. W. R. Co., 105 Wis. 
398, 80 N. W. 1101. 

i3i,6 Ohio & M. River R. Co. v. 
Cox, 26 111. App. 491; Com'rs of 
Highways v. People, 69 111. App. 
326; Davis v. Nicholson, 81 Ind. 
183; City of Topeka v. Russam, 30 
Kan. 550; State v. Reesa, 59 Wis. 
106. 

"IT Brown v. Robertson, 123 111. 
631, 15 N. E. 30; Chadwick v. Mc- 
Causland, 47 Me. 342; Pratt v. 
Lewis, 39 Mich. 7; Crump v. Mims, 
64 N. C. 767; In re Bridgeport & 



N. C. Turnpike Co., 171 Pa. 312, 33 
Atl. 145; Burrows v. Kinsley, 27 
Wash. 694, 68 Pac. 332; Witter v. 
Damitz, 81 Wis. 385, 51 N. W. 575. 
The old road, however, can be 
used by the public until the new 
highway is in fit condition to be 
traveled. City of Chippewa Falls 
v. Hopkins, 109 Wis. 611, 85 N. W. 
553. See, also, Maire v. Kruse, 85 
Wis. 302, 26 L. R. A. 449. 

1318 Brook v. Horton, 68 Cal. 554; 
City & County of San Francisco v. 
Burr, 108 Cal. 460; Brockenhausen 
v. Bochland, 137 111. 547, 27 N. E. 
458, affirming 36 111. App. 224; 
Grube v. Nichols, 36 111. 92; City of 
Peoria v. Johnston, 56 111. 45; State 
v. Huggins, 47 Ind. 586; Stahr v. 
Carter, 116 Iowa, 380, 90 N. W. 64; 
Com. v. Inhabitants of Cambridge, 
7 Mass. 158; Bowley v. Walker, 90 
Mass. (8 Allen) 21; Commonwealth 
v. Boston & A. R. Co., 150 Mass. 
174, 22 N. E. 913; Yates v. Town of 
West Grafton, 33 W. Va. 507, 11 
S. E. 8; Poling v. Ohio River R. 
Co., 38 W. Va. 645, 18 S. E. 782, 24 
L. R. A. 215. See, also, Patton v. 
Creswell, 120 Ind. 147. 



ITS DISPOSITION. 



2203 



strances may be urged and considered .and the right of appeal by 
those considering themselves aggrieved or injured. Municipal 
action or the owners' petition originating the proceedings for 
vacation should be governed in respect to its form and its sub- 
ject-matter by the same rules which apply to the establishment 
of a highway. The descriptions should be accurate or reasonably 
so, and definite. 1319 The form, if one is prescribed by law or its 
essentials, should be strictly followed, 1320 and should show a prima 
facie right on the part of those seeking a vacation, 1321 and also 
the existence of a legal highway. 1322 

Notice and hearing. It is a fundamental rule of law that no 
action is legal which results in the destruction or impairment of 
private legal property or a vested right unless that one whose 
right is thus affected has been given effective notice of the con- 
templated action and an opportunity for defending it if he so 



1319 Keena v. Placer County 
Sup'rs, 89 Cal. 11; Hughes v. Beggs, 
114 Ind. 427, 16 N. E. 817; Cook v. 
Quick, 127 Ind. 477, 26 N. E. 1007; 
Furman v. Fivrman, 86 Mich. 391; 
Pearsall v. Eaton County Sup'rs, 
71 Mich. 438, 39 N. W. 578; Zeibold 
v. Foster, 118 Mo. 349, 24 S. W. 
155. A description of the proposed 
road is sufficient if it can be readily 
and definitely located. 

Milford's Petition, 37 N. H. 57; 
Evers v. Vreeland, 50 N. J. Law, 
386, 13 Atl. 241. But a variance in 
the description as given in the es- 
tablishment of a highway will not 
be considered in proceedings to 
vacate. Ruton v. Adams (N. J. 
Law) 21 Atl. 937; Vedder v. Mar- 
ion County, 22 Or. 264, 29 Pac. 619; 
In re Road in Whiteley Tp. (Pa.) 
15 Atl. 895. A reference to a plat 
attached to a report is sufficient. 

1320 Harris v. Board of Super- 
visors of Mahaska County, 88 
Iowa, 219, 55 N. W. 324; Coakley 
v. Boston & M. R. Co., 159 Mass. 
32; Chosmer v. Blew, 55 N. J. Law, 



67; Vedder v. Marion County, 22 
Or. 264; Attorney General v. Sher- 
ry, 20 R. I. 43. But see Devoe v. 
Smeltzer, 86 Iowa, 385, 53 N. W. 
287. See, also, Bigelow v. Brooks, 
119 Mich. 208. 

1821 Brandenburg v. Hittel, 16 
Ind. App. 224, 45 N. E. 45; Pearsall 
v. Eaton County Sup'rs, 71 Mich. 
438, 39 N. W. 578. The insufficiency 
of a petition will affect the validity 
of the proceedings only in respect 
to those persons injured by the 
discontinuance of the highway. 
Merchant v. Town of Marshfleld, 
35 Or. 55, 56 Pac. 1013; State v. 
Nelson, 57 Wis. 147. 

1322 People v. Marin County, 10? 
Cal. 223, 26 L. R. A. 659; Devoe v. 
Smeltzer, 86 Iowa, 385; Bradbury 
v. Walton, 94 Ky. 163; Hyde v. 
Teal, 46 La. Ann. 645; Jersey City 
v. Howeth, 30 N. J. Law, 521; Keen 
v. Board of Supervisors of Fair- 
view Tp., 8 S. D. 558, 67 N. W. t>23; 
In re Vernon Tp. Road, 70 Pa. 23; 
In re Swanson Street, 163 Pa. 323^ 
30 Atl. 207. 



2204: 



PUBLIC PROPERTY 



desires. 1323 This rule applies in connection with the present sub- 
ject. Notice as required by law, whether actual or constructive, 
must be given and an opportunity afforded for the making of 
objections to those to whom is given by law the right, or the- 
filing of remonstrances. 1324 The right to object is usually re- 



1323 Atherton v. Com'rs of High- 
ways, 81 111. App. 59; Imhoff v. 
Highway Com'rs, 89 111. App. 66; 
Moffitt v. Brainard, 92 Iowa, 122, 
60 N. W. 226, 26 L. R. A. 821; Miller 
v. Schenck, 78 Iowa, 372; McKin- 
ney v. Baker, 100 Iowa, 362, 69 N. 
W. 683; Sullivan v. Robbins, 109 
Iowa, 235, 80 N. W. 340; Mills v. 
Board of Com'rs of Neosho Co., 50 
Kan. 635, 32 Pac. 361; Garrett v. 
Hedges, 13 Ky. L. R. 647, 17 S. W. 
871 ; Lincoln v. Inhabitants of War- 
ren, 150 Mass. 309, 23 N. E. 45; 
White v. Inhabitants of Foxbor- 
ough, 151 Mass. 28, 23 N. E. 652; 
Curry v. Place, 99 Mich. 524, 
58 N. W. 472; Goss v. Highway 
Com'rs of Westphalia, 63 Mich. 
608, 30 N. W. 197. The giving of 
notice is jurisdictional and an 
omission cannot be supplied after 
an order for vacation has been 
made. Kimball v. Homan, 74 Mich. 
699; State v. Deer Lodge County 
Com'rs, 19 Mont. 582; Parkhurst v. 
Van Derveer, 48 N. J. Law, 80; 
Jersey City H. & P. St. R. Co. v. 
City of Passaic, 68 N. J. Law, 110, 
52 Atl. 242; State v. Convery, 53 N. 
J. Law, 588, 22 Atl. 345; Latimer 
v. Tillamook County, 22 Or. 291, 
29 Pac. 734. Jurisdiction will be 
presumed to have been acquired 
although the affidavit of posting no- 
tices was ambiguous. Hill v. Hoff- 
man (Tenn.) Civ. App. 58 S. W. 
929; Conrad v. Lewis County, 10 
W. Va. 784; Lazzell v. Garlow, 44 
W. Va. 466, 30 S. E: 171; Yates v. 



Town of West Graf ton, 33 W. Va. 
507, 11 S. E. 8. An acquiesence in 
the discontinuance of a highway 
for a period of eighteen years will 
be regarded as a waiver of the 
omission to serve notice upon the 
party affected. But see Dempsey 
v. City of Burlington, 66 Iowa, 687; 
Village of Bellevue v. Bellevue 
Imp. Co., 65 Neb. 52, 90 N. W. 
1002; Haynes v. Lasell, 29 Vt. 
157. 

1324 Spiegel v. Gansberg, 44 Ind. 
418; Brandenburg v. Hittel, 16 Ind. 
App. 224, 45 N. E. 45. Denning an 
abutting owner. Martin v. City of 
Louisville, 97 Ky. 30, 29 S. W. 864; 
Hyde v. Teal, 46 La. Ann. 645, 15 
So. 416; Raxedale v. Seip, 32 La. 
Ann. 435. Those living in the vi- 
cinity of a road are not necessarily 
"contiguous" proprietors within the 
meaning of the statute. 

Shaw v. County Com'rs of Pisca- 
taquis, 92 Me. 498, 43 Atl. 105. The 
jurisdiction of commissioners in 
laying out a highway cannot be 
attacked in subseqent proceedings 
having for their purpose the dis- 
continuance or alteration. People 
v. West Bay City Sugar Co., 124 
Mich. 521, 83 N. W. 278. A prop- 
erty owner may be barred by 
laches in contesting the validity 
of proceedings vacating a street. 
Street v. Town of Alden, 62 Minn. 
160; In re Coe, 19 Misc. 549, 44 
N. Y. Supp. 910; People ex rel. 
Mershon v. Shaw, 34 App. Div. 
61, 54 N. Y. Supp. 218; Buchanan 



942 ITS DISPOSITION. 2205- 

stricted to abutting or contiguous owners or those whose means 
of ingress and egress to property will be materially damaged or 
destroyed. The right of appeal to a higher tribunal or some other 
official body is usually a statutory one and unless the privilege 
of review is expressly granted or appears by indisputable impli- 
cation, the judgment or order of the body acting in the first in- 
stance in respect to the vacation will not be considered appeal- 
able. 1325 The right if given is strictly construed. 1326 

942. Vacation; when effective. 

Assuming a compliance with statutory provisions and the legal- 
ity of all previous action, this rule obtains that where the affirma- 
tive action of the voters is not required as in some cases, 1327 an 
order of the municipal authorities which has for its purpose the 
vacation of a highway must be of the same grade or have the 
same legal weight as action by the same authorities having for 
their purpose the establishment or the creation of a highway. 
Since the power to vacate is practically co-extensive with the 
power to create, it follows that the step can only be effectively 

v. Baker, 54 Ohio St. 324, 43 N. B. 9 N. D. 623, 84 N. W. 556; Merchant 
330; Hill v. Hoffman (Tenn. Ch. v. Town of Marshfleld, 35 Or. 55, 
App.) 58 S. W. 9z9; Trudeau v. 56 Pac. 1013; Crook v. Town of 
Town of Sheldon, 62 Vt. 198, 20 Bradford, 65 Vt. 513, 27 Atl. 118. 
Atl. 161. But see Nicholson v. Construing Rev. Laws, 2940, rela- 
Stockett, 1 Miss. (Walk.) 67. tive to petition for rehearing. Hull 
1325 Early v. Hamilton, 75 Ind. v. Stephenson, 19 Wash. 572, 53 
376. The appeal papers should Pac. 669. One having the right 
show the right of the plaintiffs in to petition for the vacation of a 
this respect. Harris v. Board of highway under laws of 1895, p. 82, 
Sup'rs of Mahaska County, 88 has the right to appeal from an 
Iowa, 219, 55 N. W. 324; Inhabi- adverse decision, 
tants of Cambridge v. County isae Commissioners of Highways 
Com'rs, 86 Me. 141, 29 Atl. 960. A v. Quinn, 136 111. 604, 27 N. E. 187. 
failure to comply with directory iw Welton v. Town of Thomas- 
provisions of a statute will not ton, 61 Conn. 397, 24 Atl. 333; State 
render void an appeal. Callaway v. Inhabitants of Brewer, 45 Me. 
County Ct. v. Inhabitants of Round 606; Bath's Petition, 22 N. H. 576; 
Prairie, 10 Mo. 679; In re Big Hoi- Manchester's Petition, 28 N. H. 
low Road, 40 Mo. App. 363; Condict 296; Drew v. Cotton, 68 N. H. 22, 
v. Ramsey, 65 N. J. Law, 503, 47 42 Atl. 239; Thompson v. Major,. 
Atl. 423; Miller v. Oakwood Tp. 58 N. H. 242. 



2200 



taken by the application of the rule above stated. 1328 The records 
should disclose upon their face upon the vacation or discontinu- 
ance of a highway sufficient facts to make the proceedings prima 
facie valid. 1329 And the same requirements ordinarily exist in re- 
spect to descriptions and identity of highways as applied to the 
petition or ordinances by which the proceedings are originated. 1330 
A vacation becomes effective finally only upon rendering and 
signing in the manner prescribed by law an order or judgment 
to that effect by a public officer, official body, or court of compe- 
tent jurisdiction. 1331 

943. Damage to abutting owner. 

The vacation of a highway may be regarded as a taking of pri- 
vate property and which to be legal must, therefore, include com- 
pensation to the one who has suffered damages. The abutting 
owner is ordinarily the one entitled to compensation, if at all, 
and to determine a measure of damage for him it is necessary to 



1328 Rose v. Bottyer, 81 Cal. 122, 
22 Pac. 393; Cooper v. City of De- 
troit, 42 Mich. 584; State v. City 
Council, 40 Minn. 483, 42 N. W. 
355; Currier v. Davis, 68 N. H. 
596, 41 Atl. 239; Village of Belle- 
vue v. Bellevue Imp. Co., 65 Neb. 
52, 90 N. W. 1002. Jurisdictional 
irregularities alone will render void 
proceedings by a village board in 
vacating streets and alleys. Schaf- 
haus v. City of New York, 28 App. 
Div. 475, 51 N. Y. Supp. 114; Greene 
v. O'Connor, 18 R. I. 56, 25 Atl. 692, 
19 L. R. A. 262. 

1320 People v. Caledonia Highway 
Com'rs, 16 Mich. 63. 

isso Marlborough's Petition, 46 N. 
H. 494; Taintor v. Town of Morris- 
town, 33 N. J. Law, 57. The pre- 
sumption of validity exists. But 
see Shields v. Ross, 158 111. 214, 41 
N. E. 985; Zeibold v. Foster, 118 
Mo. 349, 24 S. W. 155. 

1331 Keena v. Placer County 



Sup'rs, 89 Cal. 11, 26 Pac. 615; 
Shields v. Ross, 158 111. 214, 41 N. 
E. 985. An order will be valid as 
to that portion of a highway with- 
in the jurisdiction of an official 
body. Cook v. Quick, 127 Ind. 477, 
26 N. E. 1007; Dunham v. Fox, 100 
Iowa, 131, 69 N. W. 436; Pillsbury 
v. City of Augusta, 79 Me. 71, 8 
Atl. 150; In re Albers' Petition, 
112 Mich. 640, 71 N. W. 1110. In 
proceedings to vacate a plat, the 
city is not a necessary party and 
therefore Pub. Acts 1881, No. 113, 
p. 98, 13, relative to jurisdiction 
of superior court of Grand Rapids, 
has no application. Furnian v. 
Furman, 86 Mich. 391; Keyes v. 
Minneapolis & St. L. R. Co., 36 
Minn. 290, 30 N. W. 888; State v. 
Wells, 70 Mo. 635; Sheppard v. 
May, 83 Mo. App. 272. But see 
McKenzie v. Gilmore (Cal.) t Pac. 
262. 



943 



ITS DISPOSITION. 



2207 



consider his rights. An adjoining property owner has a right in 
common with the public generally to the use and occupation of 
the highway adjoining his premises for proper purposes. For a 
loss of this right, no compensation, unless especially provided by 
statute, can be given. 1332 He has in addition to his rights, how- 
ever, shared in common with the public, the special easements of 
ingress to and egress from his property. These are rights pe- 
culiar to himself, not shared in by the public and for a destruc- 
tion or an impairment of which he is, by the great weight of au- 
thority, clearly entitled to compensation. 1333 The rule, however, 



i332Lakenan v. Prophett, 61 Ark. 
631, 32 S. W. 384; Symons v. City 
& County of San Francisco, 115 
Cal. 555, 42 Pac. 913, 47 Pac. 453, 
Whitsett v. Union Depot & R. Co., 
10 Colo. 243, 15 Pac. 339; City of 
East St. Louis v. O'Flynn, 119 111. 
200, 10 N. E. 395; Parker v. Catho- 
lic Bishop of Chicago, 146 111. 158, 
34 N. E. 473, Id. 41 111. App. 74; Gray 
v. Iowa Land Co., 26 Iowa, 387; 
Heller v. Atchison, T. & S. F. R. 
Co., 28 Kan. 625; Davis v. County 
Com'rs, 153 Mass. 218, 26 N. E. 
848, 11 L. R. A. 750; Natick Gas 
Light Co. v. Inhabitants of Natick, 
175 Mass. 246, 56 N. E. 292. A 
gas company cannot recover dam- 
ages occasioned by a removal of its 
pipes necessitated by the vacation 
of a highway. Kimball v. Homan, 
74 Mich. 699, 42 N. W. 167; Conk- 
lin v. Fillmore County Com'rs, 13 
Minn. 454 (Gil. 423); Glasgow v. 
City of St. Louis, 107 Mo. 198, 1Y 
S. W. 743. 

Knapp, Stout & Co. Company v. 
City of St. Louis, 153 Mo. 560, 56 S. 
W. 104. To entitle an abutting owner 
to equitable relief where a city is 
proceeding to vacate a street, he 
must show that he will suffer great- 
er than other property owners 
abutting on the same street: citing 



many cases. Cram v. Laconia, 71 
N. H. 41, 51 Atl. 635, 57 L. R. A. 
282; Kings County Fire Ins. Co. v. 
Stevens, 101 N. Y. 411; Elliott, 
Roads & Streets (2d Ed.) 877. 

1333 city of Chicago v. Baker (C. 
C. A.) 86 Fed. 753, 98 Fed. 830. 
Evidence of decrease in rental in 
neighboring property is not com- 
petent in an action to recover 
damages to property by the closing 
of a street. City of Texarkana v. 
Leach, 66 Ark. 40, 48 S. W. 807; 
Symons v. City & County of San 
Francisco, 115 Cal. 555, 42 Pac. 913, 
47 Pac. 453; Hesing v. Scott, 10V 
111. 600; City of Chicago v. Burcky, 
158 111. 103, 42 N. Jii. 178, 29 L. K. 
A. 568; Brandenburg v. Hlttel Uiid.j 
37 N. E. 329, Id., 16 Ind. App. 224, 
45 N. E. 45; Gebnardt v. Beeves, Vb 
111. 301; Butterworth v. Bartlett, 50 
Ind. 537; Pollard v. Dickinson Co., 
71 Iowa, 438, 32 N. W. 418; Gargan 
v. Louisville, N. A. & C. K. Co., 11 
Ky. L.. K. 489, 12 S. W. 259; Ron 
meiser v. Bannon, 15 Ky. L,. K. 114, 
22 S. W. 27; Peters v. carleton, 48 
Hun, 620, 1 N. Y. Supp. 531; Dana 
v. City or Boston, 170 Mass. 693, 4 
N. E. 1013; Onset St. K. Co. v. 
County Com'rs, 154 Mass. 395, 28 
N. ti. 286; Baudistel v. Michigan 
Cent. R. Co., 113 Mich. 687, 71 iN. 



PUBLIC PROPERTY. 



94S 



obtains that the right of access must be substantially impaired 
before damages can be recovered, 133 * and the right is clearly lim- 
ited to abutting property owners. 1335 An abutting owner may 
also have a special interest in the public improvements which 
have been made in the highway at the expense of the adjoining 



W. 1114; Brakken v. Minneapolis 
& St. L. R. Co., 29 Minn. 41; Smith 
v. City of St. Paul, 72 Minn. 472, 
75 N. W. 708; Heinrich v. City of 
St. Louis, 125 Mo. 424, 28 S. W. 
626; Candia v. Chandler, 58 N. H. 
127; Lindsay v. City of Omaha, 30 
Neb. 512, 46 N. W. 627; Purcell v. 
Edison Portland Cement Co., 65 N. 
J. Law, 541, 47 Atl. 587; Peters v. 
Carleton, 48 Hun, 620, 1 N. Y. Supp. 
531; People v. Board of Assessors, 
59 Hun, 407, 13 N. Y. Supp. 404; 
In re East One Hundred & Sixty- 
eighth St., 157 N. Y. 409, 52 N. E. 
1126, affirming 28 App. Div. 143, 52 
N. Y. Supp. 588; Finegan v. Ecker- 
son, 26 Misc. 574, 57 N. Y. Supp. 
605; In re City of New York, 41 
App. Div. 586, 58 N. Y. Supp. 736. 
The discontinuance of a private 
way gives no right to claim dama- 
ges. In re Barclay, 91 N. Y. 430; 
In re Melon St., 182 Pa. 397, 38 
Atl. 482, 38 L. R. A. 275; Attorney 
General v. Sherry, 20 R. I. 43, 37 
Atl. 344; Hill v. Hoffman (Tenn. 
Ch. App.) 58 S. W. 929; Smith v. 
Gulf, C. & S. F. R. Co. (Tex. Civ. 
App.) 64 S. W. 943. No damages 
can be recovered lor the closing of 
a private way. But see Barr v. 
City ot Oskaioosa, 45 Iowa, 275; 
Preston v. City of Cedar Rapids, 
95 Iowa, 71; Grove v. Allen, 92 
Iowa, 519, 61 N. W. 175; McKinney 
v. Baker, 100 Iowa, 362, 69 N. W. 
683; Coffey County Com'rs v. Ve- 
nard, 10 Kan. 95; Hielscher v. 
(Jity of Minneapolis, 46 Minn. 529, 
49 N. W. 287; State v. Deer Lodge 



County Com'rs, 19 Mont. 582, 4 
Pac. 147; McGee's Appeal, 114 Pa. 
470. 

A distinction is, however, made 
between country roads and city 
streets in Bradbury v. Walton, 94 
Ky. 167, where is was said: "The 
streets of a town or city are ac- 
quired by grant with the implied 
right of ingress and egress to the 
abutting lot owner, the grantor, or 
the party making the dedication, 
saying to the owners of lots, 'This 
right of ingress and egress you 
shall have.' But not so with an 
ordinary public road. The state 
creates the easement for the en- 
tire public; its use is that of the 
public, one citizen having as much 
right to this use as the other, and 
when its abandonment or non use 
is deemed necessary for the pub- 
lic good, the county court may dis- 
continue it altogether, and in that 
tribunal the question must be 
made." 

1334 Cram v. Laconia, 71 N. H. 41, 
51 Atl. 635, 57 L. R. A. 282; Stan- 
wood v. City of Maiden, 157 Mass. 
17, 31 N. E. 702, 16 L. R. A. 591. 
But see Heinrich v. City of St. 
Louis, 125 Mo. 424, 28 S. W. 626. 

1335 Meyer v. City of Richmond, 
172 U. S. 82; City of East St. Louis 
v. O'Flynn, 119 111. 200, 10 N. E. 
395; Dantzer v. Indianapolis Union 
R. Co., 141 Ind. 604, 39 N. E. 223, 
34 L. R. A. 769; Nichols v. Inhabi- 
tants of Richmond, 162 Mass. 170, 
38 N. E. 501; Kings County Fire 
Ins. Co. v. Stevens, 101 N. Y. 411. 



944, 945 ITS DISPOSITION. 

property; for a destruction or impairment of this special right, 
he can also claim damages. 1336 

944. Evidence. 

A question may arise in respect to the vacation of a highway. 
The rule here applies that the burden of proof is thrown upon 
the one alleging not only the vacation of a highway but also its 
abandonment. 1337 The familiar maxim will be remembered of 
"Once a highway, always a highway" and another rule of evi- 
dence is constantly applied in these cases to the effect that "A 
thing known to exist is presumed to continue until the contrary 
is shown." The reason for the rules as stated above is apparent; 
through the creation and maintenance of a public highway, cer- 
tain public rights are acquired by the community as well as the 
public corporation, rights which administer not only to the con- 
venience but to the necessities of the public both individually and 
at large/ 338 and which cannot be lost, impaired or destroyed ex- 
cept by a preponderance of evidence and that which is competent, 
relevant and materal, 1339 or through proceedings valid in all re- 
spects. 1310 

945. Abandonment of highways. 

A highway may lose its character as a public road through its 
abandonment for use as a public way. This is accomplished in 

1330 state v. Elizabeth City, 54 N. isas Lorenzen v. Preston 53 

J. Law,, 462, 24 Atl. 495; Snedeker Iowa, 580; Sarvis v. Caster, 116 

v. Snedeker, 30 N. J. Law, 80. Iowa, 707, 89 N. W. 84; Miller v. 

But see Stout v. Noblesville & Oakwood Tp., 9 N. D. 623, 84 N. 

E. Gravel Road R. Co., 83 Ind. 466. W. 556; McQuigg v. Cullins, 56 Ohio 

See, also, In re East One Hundred St. 649, 47 N. E. 595; Kalteyer v. 

& Sixty-eighth St., 157 N. Y. 409, Sullivan, 18 Tex. Civ. App. 488, 46 

52 N. E. 1126, affirming 28 App. S. W. 288. 

Div. 143, 52 N. Y. Supp. 588. isso Whetten v. Clayton, 111 Ind. 

i337Dingwall v. Weld County 360, 12 N. E. 513; Lathrop v. Cen- 

Com'rs, 19 Colo. 415; McVee v. tral Iowa R. Co., 69 Iowa, 105; 

City of Watertown, 92 Hun, 306, Union Pac. R. Co. v. Dyche, 28 Kan. 

36 N. Y. Supp. 870; Horey v. Vil- 200; Anderson v. Hamilton County 

lage of Haverstraw, 124 N. Y. 273, Com'rs, 12 Ohio St. 635. 

26 N. E. 532; City of Cohoes v. isio Hatch v. Monroe County 

Delaware & H. Canal Co., 134 N. Sup'rs, 56 Miss. 26. 
Y. 397, 31 N. E. 887. But see Shelby 
v. State, 29 Tenn. (10 Humph.) 165. 
Abb. Corp. Vol. Ill 15. 



2210 



PUBLIC PROPERTY. 



945 



many states by statutory provisions to the effect that if within 
a prescribed time a highway is not opened and used it will be 
deemed to have been vacated or abandoned, 1341 a statutory aban- 
donment as it has been termed in many cases. These statutory 
provisions it has been held in a number of cases apply where the 
road as a whole has been abandoned. They do not apply to un- 
used portions of a road. 1342 Public roads may also become aban- 
doned by nonuser for a long period of time. 1343 The maxim re- 
ferred to in the preceding section "once a highway, always a 
highway," applies here, and the rule obtains that mere nonuser 
of the whole or a portion, even though for many years, will not 
always effect an abandonment, 1344 neither will a mere failure on 



is4iWragg v. Penn. Tp., 94 111. 
11; Humphreys v. City of Woods- 
town, 48 N. J. Law, 588, 7 Atl. 301; 
Chosen Freeholders of Mercer v. 
Pennsylvania R. Co., 45 N. J. Law, 
82; City of Cohoes v. Delaware & 
H. Canal Co., 54 Hun, 558, 7 N. Y. 
Supp. 885; Ludlow v. City of Os- 
wego, 25 Hun (N. Y.) 260; Kelly 
Nail & Iron Co. v. Lawrence Fur- 
nace Co., 46 Ohio St. 544, 5 L. R. A. 
52; Amsbry v. Hinds, 48 N. Y. 57; 
Riley v. Brodie, 22 Misc. 374, 50 
N. Y. Supp. 347; Townsend v. Bish- 
op, 61 App. Div. 18, 70 N. Y. Supp. 
201; Excelsior Brick Co. v. Village 
of Haverstraw, 142 N. Y. 146, 36 
N. E. 819. The statutory provision 
that all highways which have 
ceased to be traveled or used as 
"highways for six years shall lose 
their character as such, applies to 
a street in an incorporated village. 
Heddleston v. Hendricks, 52 Ohio 
St. 460, 40 N. E. 408; Peck v. Clark, 
19 Ohio, 367; Herrick v. Town of 
Geneva, 92 Wis. 114, 65 N. W. 1024; 
Paine Lumber Co. v. City of Osh- 
kosh, 89 Wis. 449, 61 N. W. 1108. 

1342 Harden v. Metz, 10 Kan. App. 
341, 58 Pac. 281. Neither does such 
a statute apply to a street dedi- 



cated by the making of a map or 
plat. Taintor v. Mayor of Morris- 
town, 19 N. J. Eq. (4 C. E. Green) 
46; Mangam v. Village of Sing 
Sing, 26 App. Div. 464, 50 N. Y. 
Supp. 647; Maire v. Kruse, 85 Wis. 
302, 55 N. W. 389, 26 L. R. A. 449. 

1343 Beardslee v. French, 7 Conn. 
125; Hewes v. Village of Crete, 175 
111. 348, 51 N. E. 696; Galbraith v. 
Littiech 73 111. 209; Simplot v. City 
of Dubuque, 49 Iowa, 630; Phillips 
v. Lawrence, 23 Ky. L. R. 824, 64 
S. W. 411; Baldwin v. Trimble, 85 
Md. 396, 37 Atl. 176, 36 L. R. A. 
489; Holt v. Sargent, 81 Mass. (15 
Gray) 97; Woodruff v. Paddock, 56 
Hun, 288, 9 N. Y. Supp. 381; Bay- 
ard v. Standard Oil Co., 38 Or. 438, 
6S Pac. 614; Shelby v. State, 29 
Tenn. (10 Humph.) 165. 

1344 London & S. F. Bank v. City 
of Oakland (C. C. A.) 90 Fed. 691, 
affirming 86 Fed. 30; City of Cleve- 
land v. Cleveland, C., C. & St. L. 
R. Co., 93 Fed. 113; Beebe v. City 
of Little Rock, 68 Ark. 39, 56 S. 
W. 791; Southern Pac. R. Co. v. 
Ferris, 93 Cal. 263, 18 L. R. A. 510; 
City of Hartford v. New York & 
N. E. R. Co., 59 Conn. 250, 22 Atl. 
37; City of Lawrenceburgh v. 



945 



ITS DISPOSITION. 



the part of public authorities to open, construct or repair a road 
or a portion of it legally established 1345 or the payment of taxes 
by private persons on the land used. 1346 As in the case of a dedi- 
cation of a highway it is necessary to establish the intent of the 
owner to dedicate, 1347 so in its abandonment it is necessary to es- 
tablish the intent of the proper legal authorities to abandon it 1348 



Wesler, 10 Ind. App. 153, 37 N. B. 
956; Wolfe v. Town of Sullivan, 
133 Ind. 331; Davies v. Huebner, 45 
Iowa, 574; Wenzel v. Kempmeier, 
53 Iowa, 255; Bradley v. Appanoose 
County, 106 Iowa, 105, 76 N. W. 
519; Stickel v. Stoddard, 28 Kan. 
715; In re Railroad Com'rs, 91 Me. 
135, 39 Atl. 478; Richardson v. 
Davis, 91 Md. 390, 46 Atl. 964; 
State v. Morse, 50 N. H. 9; Meth- 
odist Episcopal Church v. City of 
Hoboken, 33 N. J. Law, 13; Ho- 
boken Land & Imp. Co. v. City of 
Hoboken, 36 N. J. Law, 540; Riehle 
v. Heulings, 38 N. J. Bq. (11 Stew.) 
20; Amsbey v. Hinds, 46 Barb. (N. 
Y.) 622; Crump v. Mims, 64 N. C. 
767; City of Pittsburg v. Epping- 
Carpenter Co., 194 Pa. 318, 45 Atl. 
129; Greene v. O'Connor, 18 R. I. 
56, 25 Atl. 692, 19 L. R. A. 262; 
Crocker v. Collins, 37 S. C. 327, 
15 S. E. 951; Chafee v. City of 
Aiken, 57 S. C. 507, 35 S. E. 800; 
State v. Leaver, 62 Wis. 387; Moore 
v. Roberts, 64 Wis. 538; City of 
Madison v. Mayers, 97 Wis. 399, 73 
N. W. 43, 40 L. R. A. 635. 

1843 London & S. F. Bank v. City 
of Oakland, 86 Fed. 30; Holmes v. 
Cleveland, C. C. R. Co., 93 Fed. 
100; Brown v. Hiatt, 16 Ind. App. 
340, 45 N. E. 481; Shea v. City of 
Ottumwa, 67 Iowa, 39; Uptagraff v. 
Smith, 106 Iowa, 385; Webb v. 
Butler County Com'rs, 52 Kan. 375, 
34 Pac. 973; Louisiana Ice Mfg. 
Co. v. City of New Orleans, 43 La. 



Ann. 217, 9 So. 21; Flersheim v. City 
of Baltimore, 85 Md. 489, 36 Atl. 
1098; State v. Culver, 65 Mo. 607; 
Kelly Nail & Iron Co. v. Lawrence 
Furnace Co., 46 Ohio St. 544, 22 
N. E. 639, 5 L. R. A. 652; Watts 
v. Southern Bell Telep. & Tel. Co., 
100 Va. 45, 40 S. E. 107; Ralston 
v. Town of Weston, 46 W. Va. 544, 
33 S. E. 326. 

Reilly v. City of Racine, 51 Wis. 
526, 8 N. W. 417. "Until the time 
arrives when any street or part of 
a street is required for actual pub- 
lic use, and when the public au- 
thorities may be promptly called 
upon to open it for the public use, 
no mere non user, of any length 
of time, will operate as an aban- 
donment of it, and all persons in 
possession of it will be presumed 
to hold subject to the paramount 
right of the public." 

1346 Beebe v. City of Little Rock, 
68 Ark. 39, 56 S. W. 791; Schwerdtle 
v. Placer County, 108 Cal. 589, 41 
Pac. 448; City of Ashland v. Chi- 
cago & N. W. R. Co., 105 Wis. 398, 
80 N. W. 1101. But see City of 
Huntington v. Townsend, 29 Ind. 
App. 269, 63 N. E. 36. 

i34T See 928 et seq., ante. 

i34s Shirk v. City of Chicago, 195 
111. 298, 63 N. E. 193; Duncombe v. 
Powers, 75 Iowa, 185, 39 N. W. 261; 
Larson v. Fitzgerald, 87 Iowa, 402, 
54 N. W. 441. 

1349 Dingwall v. Weld County 
Com'rs, 19 Colo. 415, 36 Pac. 148; 



2212 



PUBLIC PROPERTY. 



94$ 



and in this respect the rule of strict construction will apply and 
a doubt reserved in favor of the continued existence of the high- 
way rather than its abandonment. 1349 The rule is based upon the 
same reasons as given in a preceding section as applying to the 
burden of proof and character of the evidence necessary in the 
vacation of public roads. 

946. Prescriptive title. 

In preceding sections 135 the question of the acquirement of a 
prescriptive title by private persons in public ways, has been con- 
sidered and the rule there laid down that in the greater number 
of jurisdictions, and unless expressly provided by statute, the 
statute of limitations will not run as against the public authori- 
ties. The mere fact, therefore, that there may have been a user 
or even a long continued user by private parties for private uses 
of a highway or some portion of it will not establish the aban- 
donment of that highway or the portion used 1351 unless expressly 
held otherwise for the reasons given in the section just referred 
to. 



Champlin v. Morgan, 20 111. 181; 
McNamara v. Minneapaolis, St. P. 
& S. S. M. R. Co., 95 Mich. 545, 55 
N. W. 440. 

isso see 824, 825, ante. 

1351 London & S. F. Bank v. City 
of Oakland (C. C. A.) 90 Fed. 691, 
affirming 86 Fed. 30; City & County 
of San Francisco v. Center, 133 
Cal. 673, 66 Pac. 83; Schwerdtle v. 
Placer County, 108 Cal. 589. 31 Pac. 
448; Marsh v. Village of Fairbury, 
163 111. 401, 45 N. E. 236; Taylor 
v. Pearce, 179 111. 145, 53 N. E. 622; 
Wolfe v. Town of Sullivan, 133 
Ind. 331, 32 N. B. 1017; Giffen v. 
City of Olathe, 44 Kan. 342, 24 Pac. 
470; Hentzler v. Bradbury, 5 Kan. 
App. 1, 47 Pac. 330; La Fitte v. 
City of New Orleans, 52 La. Ann. 
2099, 28 So. 327; Heald v. Moore, 
79 Me. 271, 9 Atl. 734; City of Bal- 
timore v. Prick, 82 Md. 77, 33 Atl. 



435; Village of Crandville v. Jeni- 
son, 84 Mich. 54, 47 N. W. 600; 
Parker v. City of St. Paul, 47 Minn. 
317, 50 N. W. 247; Zimmerman v, 
Snowden, 88 Mo. 218; Methodist 
Episcopal Church v. City of Ho- 
boken, 33 N. J. Law, 13; Hoboken 
Land & Imp. Co. v. City of Ho- 
boken, 36 N. J. Law, 540; Mangan 
v. Village of Sing Sing, 164 N. Y. 
560, 58 N. E. 1089, affirming 26 App. 
Div. 464, 50 N. Y. Supp. 647; For 
v. Hart, 11 Ohio, 414; Common- 
wealth v. Moorehead, 118 Pa. 344, 
12 Atl. 424; Hill v. Hoffman 
(Tenn. Ch. App.) 58 S. W. 929; 
Johnson v. Llano County, 15 Tex. 
Civ. App. 421, 39 S. W. 995; Yates 
v. Town of Warrenton, 84 Va. 337, 
4 S. E. 818; Bartlett v. Beardmore, 
77 Wis. 356, 46 N. W. 494. But see 
Rector v. Christy, 114 Iowa, 471,. 
87 N. W. 489. 



ITS DISPOSITION. 



2213 



947. Reversion. 

Upon the vacation or abandonment of a highway the title to 
the property passes to the abutting owner. The owner of the soil 
is restored to his original rights in the same, 1352 for, as has been 
said, "The land does not revert, because there has been no aliena- 
tion. The public has only been entitled to a certain specific 
right, the enjoyment of which is incompatible with the exercise 
of certain private rights, which are therefore necessarily sus- 
pended. When, however, the public right is relinquished, this 
incompatibility vanishes, and, as an inevitable consequence, the 
private rights thereby suspended revive." 1353 In some states 
where the fee is held by the public corporation there are cases 
holding to the effect that upon the vacation or abandonment of 
a street or a portion of it, the land does not repass to the abutting 
owner, 1354 and the rule also obtains in some jurisdictions that 
upon the vacation or abandonment of a street or a portion of it, 
land will revert not to the abutting owner but to the original 
grantor 1355 though the conditions imposed in the original dedi- 



1352 Beebe v. City of Little Rock, 
68 Ark. 39, 56 S. W. 791; Benham 
v. Potter, 52 Conn. 248; Olin v. 
Denver & R. G. R. Co., 25 Colo. 177, 
53 Pac. 454; Hamilton v. Chicago, 
B. & Q. R. Co., 124 111. 235, 15 N. E. 
854; Thomsen v. McCormick, 136 
111. 135, 26 N. E. 373; Challis v. 
Depot & R. Co., 45 Kan. 398, 25 
Pac. 894; Showalter v. Southern 
Kan. R. Co., 49 Kan. 421, 32 Pac. 
42; Southern Kan. R. Co. v. Sho- 
walter, 57 Kan. 681, 47 Pac. 831; 
Scudder v. City of Detroit, 117 
Mich. 77, 75 N. W. 286; Lamm v. 
Chicago, St. P., M. & C. R. Co., 45 
Minn. 71, 47 N. W. 455, 10 L. R. A. 
268; Thomas v. Hunt, 134 Mo. 392, 
35 S. W. 581, 32 L. R. A. 857; Oma- 
ha South R. Co. v. Beeson, 36 Neb. 
361, 54 N. W. 557; Village of Belle- 
vue v. Bellevue Imp. Co. (Neb.) 
90 N. W. 1002; Blain v. Staab, 10 
N. M. 743, 65 Pac. 177; St. Vincent 



F. C. Asylum v. City of Troy, 12 
Hun (N. Y.) 317; Kinnear Mfg. Co. 
v. Beatty, 65 Ohio St. 264, 62 N. E. 
341; Paul v. Carver, 24 Pa. 207; 
Ott v. Kreiter, 110 Pa. 370, 1 Atl. 
724; State v. Taylor, 107 Tenn. 455; 
64 S. W. 766; Hall v. La Salle 
County, 10 Tex. Civ. App. 379, 32 
S. W. 433; Burmeister v. Howard 
1 Wash. T. 207; Schwede v. Hem- 
rich Bros. Brewing Co., 29 Wash. 
21, 69 Pac. 362; Kimball v. City of 
Kenosha, 4 Wis. 321. See, also, 
Thomsen v. McCormick, 136 111. 
135; Brown v. Taber, 103 Iowa, 1, 

72 N. W. 416. 

1353 Angell, Highways, 326. 

1354 Lindsay v. City of Omaha, 30 
Neb. 512, 46 N. W. 627; Watson v. 
City of New York, 67 App. Div. 573, 

73 N. Y. Supp. 1027, affirming 34 
Misc. 701, 70 N. Y. Supp. 1033. 

1355 Wirt v. McHenry, 21 Fed. 
233; Gebhardt v. Reeves, 75 111. 



2214 PUBLIC PROPERTY. 948, 949 

cation may determine to whom the title will pass upon the vaca- 
tion or abandonment of the road. 



948. Collateral attack. 

In all proceedings leading to the establishment of a public high- 
way, its vacation or abandonment, the rule almost universally ob- 
tains that their validity cannot be made the subject of collateral 
attack. Questions arising connected with the conditions or rules 
given in the preceding sections must be raised in proceedings or 
actions brought directly for that purpose. 1356 

949. Revocation of dedication as affecting right to vacate or 
abandon. 

In a previous section 1357 the rule has been stated that if an 
offer to dedicate or a grant is accepted at any time before the 
dedication is withdrawn, this is usually held sufficient. The rights 
of the public authorities accrue only upon the establishment of a 
public highway as such and if an offer of dedication or grant is 
withdrawn or revoked before accepted, the principles in respect 
to the vacation or the abandonment of highways will not apply. 
The question of what constitutes a revocation or dedication is 
usually one of fact 1358 and will depend upon the existence of the 



301; Huff v. Hastings Exp. Co., 195 "57 See 73,7. 

111. 257, 63 N. E. 105. But see Earll isss McKenzie v. Gilmore (Cal.) 

v. City of Chicago, 136 111. 277, 26 33 Pac. 262; People v. Hibernia 

N. E. 370; Board of Education of Sav. & Loan Soc. 84 Cal. 634, 24 

Van Wert v. Town of Van Wert, Pac. 295; Schmitt v. City & County 

18 Ohio St. 221. of San Francisco, 100 Cal. 302, 34> 

ISM Bailey v. McCain, 92 111. 277; Pac. 961. A deed of property be- 

Ellis v. Blue Mt. Forest Ass'n, 69 fore an acceptance will operate 

N. H. 385, 41 Atl. 856, 42 L. R. A. as a revocation of an offer to dedi- 

570; Stanley v. Sharp, 48 Tenn. (1 cate. Moore v. Kleppish, 104 

Heisk.) 417; Robson v. Byler, 14 Iowa, 319, 73 N. W. 830; Rothbager 

Tex. Civ. App. 374; Haynes v. La- v. Village of Tonawanda, 59 Hun, 

sell, 29 Vt. 167. But see Larson v. 628, 13 N. Y. Supp. 937; State v. 

Fitzgerald, 87 Iowa, 402, 54 N. W. Fisher, 117 N. C. 733, 23 S. E. 158. 
441. 



949 



ITS DISPOSITION. 



2215 



intent to dedicate 1359 and a failure to accept on the part of the 
public authorities. 1360 



1359 City of Eureka v. Croghan, 
81 Cal. 524, 22 Pac. 693, reversing 
19 Pac. 485; Lightcap v. Town of 
North Judson, 154 Ind. 43, 55 N. B. 
952; Eckerson v. Village of Haver- 
straw, 6 App. Div. 102, 39 N. Y. 
Supp. 635; In re Hunter, 47 App. 
Div. 102, 62 N. Y. Supp. 169. See, 
also, Trine v. City of Pueblo, 21 
Colo. 102, 39 Pac. 330; Minneapolis 
& St. L. R. Co. v. Town of Britt, 
105 Iowa, 198, 74 N. W. 933. 

isoo People v. Reed (Cal.) 20 Pac. 
708; Prescott v. Edwards, 117 Cal. 
298; City of Edwardsville v. Barns- 
back, 66 111. App. 381; Hewes v. 
Village of Crete, 68 111. App. 305; 
Village of Vermont v. Miller, 161 
111. 210, 43 N. E. 975; McGrew v. 
Town of Lettsville, 71 Iowa, 150, 
32 N. W. 252; ; Brown v. Taber, 103 
Iowa, 1, 72 N. W. 416; Clendenin v. 
Maryland Const. Co., 86 Md. 80, 37 



Atl. 709; Rosenberger v. Miller, 61 
Mo. App. 422; People v. Kellogg, 67 
Hun, 546, 22 N. Y. Supp. 490. An 
acceptance of a dedication after 
the death of the owner is too late. 
In re Beck St. Opening, 19 Misc. 
571, 44 N. Y. Supp. 1087; Village ot 
Lockland v. Smiley, 26 Ohio St. 
94. The giving of a deed before 
acceptance by a general warranty 
operates in law as a revocation of 
land dedicated to a public use. 
Merchant v. Town of Marshfield, 35 
Or. 55; City of Norfolk v. Notting- 
ham, 96 Va. 34; Mahler v. Brumder, 
92 Wis. 477, 66 N. W. 502, 31 L. R. 
A. 695. The refusal of public au- 
thorities to approve a plat dedi- 
cating a street to a public use op- 
erates as a failure to accept. See, 
also, Lightcap v. Town of North 
Judson, 154 Ind. 43. 



CHAPTER X. 

LIABILITY OF PUBLIC CORPORATIONS FOR NEGLIGENCE. 

950. In general. 

951. Negligence; definition. 

952. Some essentials of actionable negligence. 

953. Liability of the state or sovereign. 

954. Public corporations denned and classified. 

955. Duties performed by each 

956. Character of duty. 

957. Character of duty continued. 

958. Municipal duty; construction of drains or sewers. 

959. Plan of work. 

960. Construction. 

961. Maintenance of sewers and drains. 

962. Governmental duties; maintenance of government, 

963. The public safety. 

964. Destruction of property by mob. 

965. Destruction of property for public purposes. 

966. The public peace. 

967. The public health and safety. 

968. Public education. 

969. Charities and corrections. 

970. Failure to pass or enforce ordinances. 

971. Ultra vires acts. 

972. Nature of duty. 

973. Respondeat superior. 

974. Liability for acts of licensee. 

975. Independent contractor. 

976. Defense of fellow-servant. 

977. Surface waters. 

978. Nonliability for exercise of discretionary or legislative power. 

979. Liability imposed as result of negligence. 

980. Notice of injury or damage. 

981. Damages. 

982. Liability in respect to highways. 

983. Of quasi corporations. 

984. Of chartered municipalities. 

985. Exceptions to the above rule. 

986. Reasons for different doctrines. 

987. The duty to construct or improve. 



LIABILITY FOR NEGLIGENCE. 2217 

: 988. Character of duty in respect to defective highways. 

989. Basis of liability. 

990. Character of highways to which duty applies. 

991. Used portion only. 

992. The duty; to whom due. 

993. When due. 

994. Same subject; when imposed by statute. 

995. Defect occasioned by private persons. 

996. Liability arising from construction. 

997. Defective plan. 

998. Work of construction or repair. 

999. Change of grade or taking of property. 

1000. Surface water injuries from plan or construction. 

1001. Duty in respect to maintenance of public highways. 

1002. Lights. 

1003. Barriers and railings. 

1004. Obstructions. 

1005. Same; accumulation of rubbish. 

1006. Ice and snow. 

1007. Same subject; buildings with their adjuncts and projections. 

1008. Poles, wires and similar objects as obstructions. 

1009. Excavations or depressions. 

1010. Basement or sidewalk openings. 

1011. Ditches, culverts, catch basins or open sewers. 

1012. Use of street. 

1013. Illegal use of the street. 

1014. Side and cross walks. 

1015. Duty; how modified. 

1016. Duty; when absolute. 

1017. Liability for defects. 

1018. Plan of improvement. 

1019. Defects in condition. 

1020. Obstructions as defects. 

1021. Ice and snow as defects. 

1022. Proximity of defects. 

1023. Falling or dangerous objects. 

1024. Bridges, viaducts and similar structures. 

1025. Definition of. bridge. 

1026. Liability; how affected. 

1027. Liability for defects in construction, 

1028. Defects in condition. 

1029. Duty to inspect. 

1030. Warning to the public. 

1031. Defenses. 

1032. Injuries through operation. 

1033. Liability as affected by notice. 

1034. Notice must be shown affirmatively by the plaintiff. 



2218 LIABILITY FOR NEGLIGENCE. 959 

1035. To whom given. 

1036. Actual notice. 

1037. Statutory notice. 

1038. Constructive notice. 

1039. How proved. 

1040. Notice; when not necessary. 

1041. Latent defects; inevitable accidents. 

1042. Notice a question for jury. 

1043. Contributory negligence. 

1044. Imputable negligence. 

1045. The application of the doctrine of contributory negligence to 

those non sui juris. 

1046. Duty of the traveler in respect to the use of highways. 

1047. Presumption of care. 

1048. Vigilance in discovering defects. 

1049. Diverted attention. 

1050. Nocturnal travel. 

1051. Attempting obvious or known danger. 

1052. Choice between dangers or ways. 

1053. Condition of the- traveler. 

1054. Knowledge of danger. 

1055. Conduct of the traveler. 

1056. Conduct continued; defective vehicles. 

1057. Contributory negligence; a question for the jury. 

1058. Burden of proof. 

1059. Proximate cause. 

1060. Defenses; statute of limitations; lack of funds. 

1061. Defense; notice of accident. 

1062. Notice of accident and its sufficiency. 

1063. Service of the notice. 

1064. Pleadings; instructions to jury. 

1065. Proper evidence. 

1066. Questions for the jury. 

950. In general. 

The question of the liability of a public corporation for injuries 
arising through its negligence is an important one and in some 
respects the Jaw is well settled. It is not possible, within the lim- 
ited space given to this subject, to discuss as fully as desirable, its 
various phases. It might be said that the tendency to hold mu- 
nicipal corporations liable, especially in respect to the condition 
of their streets, is rapidly increasing and conditions now sustain 
a recovery which would not have done so a few years ago. This 
tendency is to be regretted, for all public corporations, including 



g 951 LIABILITY FOR NEGLIGENCE. 2219' 

municipal, are governmental agents and engaged to a great ex- 
tent, if not entirely, in the carrying out of some governmental 
duty. 1 As said in a previous section, 2 the greater number of per- 
sonal injury claims might be avoided in spite of court and jury 
to the contrary by the exercise of ordinary care, caution or com- 
mon sense on the part of the one injured and further, the care 
which the state or any of its delegated agencies is required to ex- 
ercise in the physical protection of the individual while following 
ordinary and personal avocations, is very slight. For a full dis- 
cussion of the subject, the reader is referred to various text-books, 
which treat it at length. 8 

951. Negligence; definition. 

Actionable negligence has been defined 4 as "The inadvertent 
failure of a legally responsible person to use ordinary care under 
the circumstances in observing or performing a noncontractual 
duty, implied by law, which failure is the proximate cause of in- 
jury to a person to whom the duty is due." Another definition 5 
is given as "A breach of the duty to exercise care, by which one 
to whom the duty is owing suffers damage justly attributable to 
the breach of duty." And still another, 6 "Negligence is the fair 
ure to observe for the protection or safety of the interests of an- 
other person, that degree of care, precaution and vigilance which 
the circumstances justly demand." From the definitions selected 
above from many, it will be observed that in order to sustain a 
recovery in an action based on negligence, there must be estab- 
lished the existence of a duty, its breach, a resulting special dam- 
age to the one to whom it is due and the negligence must also be 
the proximate cause of the damage which involves a freedom 
from contributory negligence on the part of the one injured. 7 
In respect to the liability of a public corporation, the character 

1 See Chap. I. "Negligence"; Wharton, Neg. (2d 

2 See 485, ante. Ed.). 

s Thompson, Neg., Vol. 5; Cooley, * 16 Am. & Eng. Enc. Law (1st. 
Torts (2d Ed.) ; Williams, Mun. Ed.) p. 389. 

Liab. Tort; Jones, Neg. Mun. & Jones, Neg. Mun. Corp. p. 3. 

Corp.; Shearman & Redfield, Neg.; Thompson, Neg. Vol. 1, 1. 

Am. & Eng. Enc. Law (2d Ed.) tit. 7 Smith v. City of Leavenworth,. 

15 Kan. 81. 



2220 LIABILITY FOR NEGLIGENCE. 953 

of the duty must be further established as one on account of 
which a failure to perform or perform properly will give rise to a 
cause of action. 8 In the consideration of the subject in following 
sections the author will endeavor to ascertain the existence of a 
duty in a particular case, the character of that duty and to whom 
due. The scope of the discussion of a necessity subordinates the 
questions of damage, proximate cause and contributory negli- 
gence. 

952. Some essentials of actionable negligence. 

It is not every obligation or duty of a public corporation that 
gives rise by its breach to a cause of action in favor of an iudi- 
vidual. The duties which rest upon a corporation of this char- 
acter may be legislative or judicial and, therefore, discretionary, 
or, again, imperative or ministerial. 9 A breach of the latter 
where a liability exists at all, creates a cause of action while this 
is not true of the former class. This proposition will be further 
considered in a later section. 10 

Measure of care. Actional negligence arises through a failure 
to exercise that care which is justly required of one under the 
circumstances or conditions arising in that particular case. The 
standard or measure of care is not fixed and varies with the legal 
status of the one from whom the duty is due and the condition 
of the one to whom it is due under the peculiar circumstances 
arising in a single specific instance. 11 

Damage. To enable one injured by a failure to observe the 
proper care in the performance of an existing duty, the one to whom 
it is due must show further that the damages which he claims and 
for which he seeks recovery are those suffered by him peculiarly and 

s See 953 and 955 et seq., post. 634; Urquhart v. City of Ogdens 

9 Duke v. City of Rome, 20 Ga. burg, 91 N. Y. 67; Munn v. City of 

635; Millwood v. De Kalb County, Pittsburg, 40 Pa. 364. But see 

106 Ga. 743, 32 S. E. 577; Bennett Sheldon v. Village of Kalamazoo, 

v. City of New Orleans, 14 La. Ann. 24 Mich. 383. See, also, 958. 959 

120; Sherman v. Parish of Ver- and 972, post, with many authorl- 

million, 51 La. Ann. 880, 25 So. 538; ties cited. 

Flagg v. City of Worcester, 79 10 See 972, post. 

Mass. (13 Gray) 601; Mills v. City "See 1045 and 1053, post. See 

of Brooklyn, 32 N. Y. 489; Peck v. Jones, Neg. Mun. Corp. 4; Inger- 

Village of Batavia, 32 Barb. (N. Y.) soil, Pub. Corp. p. 421. 



953 LIABILITY FOR NEGLIGENCE. 2221 

personally and not shared in common with the public at large or a 
particular set or class of persons. 12 

Proximate cause. It is not just that one should be made pe- 
cuniarily responsible for the negligence of another and the fur- 
ther condition must therefore exist that the injury complained 
of must be the proximate and immediate result of the negligent 
act and that the one injured must be free from any want of care 
which directly contributed to the injury. 13 

953. Liability of the state or sovereign. 

Organized government is established for the benefit and ad- 
vantage of the community at large and is engaged in carrying 
out purely governmental powers or functions, those which are 
assumed exclusively by it for the benefit of the public. The 
proper performance of these duties requires an application of 
the privilege of sovereignty, which is beyond the realm of a legal 
duty. The state or sovereign, therefore, is not subject in the ex- 
ercise of any of its powers or the performance of its duties to the 
judgment of the courts which it creates or the principles of law 
applying to private persons which it establishes and enforces, 
and further, as negligence is based upon a lack of care, the sover- 
eign is not liable because there is no standard or measure of care 
which can be applied to it. Freedom from liability attaches both 
in respect to transactions of a contractual nature or those sound- 
ing in tort. 14 The sovereign may, however, by express assent, 

12 See 993, post. Chidsey v. pie v. Talmage, 6 Cal. 256; Pattison 
Town of Canton, 17 Conn. 475; v. Shaw, 6 Ind. 377; Metz v. Soule, 
Sohn v. Cambern, 106 Ind. 302, 6 40 Iowa, 236; Sinking Fund Com'rs 
N. E. 813; Brant v. Plumer, 64 v. Northern Bank, 58 Ky. (1 Mete.) 
Iowa, 33, 19 N. W. 842; Houck v. 174; Garr v. Bright, 1 Barb. Ch. (N. 
Wachter, 34 Md. 265; Smith v. In- Y.) 157; Clodfelter v. State, 86 N. 
habitants of Dedham, 62 Mass. (8 C. 51; Williamsport & E. R. Co. v. 
Gush.) 522; Griffith v. Sanbornton, Com., 33 Pa. 288; Treasurers v. 
44 N. H. 246; Gold v. City of Phila- Cleary, 3 Rich. Law (S. C.) 372; 
delphia, 115 Pa. St. 184, 8 Atl. 386; State v. Ward, 56 Tenn. (9 Heisk.) 
Williams v. Tripp, 11 R. I. 447; 100. A state does not guarantee 
Hale v. Town of Weston, 40 W. Va. the fidelity of its officers. Hosner 
313, 21 S. E. 742. v. De Young, 1 Tex. 764. But a state 

13 See 993, 1026, 1043 and 1059, may sue. See Spencer v. Brock- 
P st - way, 1 Ohio, 259. 

"State v. Hill, 54 Ala. 67; Peo- 



2222 LIABILITY FOR NEGLIGENCE. 954. 

permit the bringing of actions against it in certain prescribed 
cases. The United States has established a court of claims for 
the determination of cases of a contractual nature. 15 The state 
of New York has also made provision for the establishment of an 
official body for the consideration of claims which may be urged 
against it. 16 The same condition also exists in other states. 17 

954. Public corporations defined and classified. 

In sections 4 to 8, both inclusive, of this work, a classification 
of public corporations has already been given with definitions 
and a statement of the distinguishing characteristics of each class 
and to these sections the reader is referred. To understand, how- 
ever, more clearly, the basis of a liability for negligence, a brief 
resume of those sections is now given. Public corporations are 
divided into quasi corporations and municipal corporations 
proper. Each is regarded as an agency of government. This 
character, quasi corporations sustain solely. They are political 
agencies; subdivisions of the state such as counties, townships, 
road and school districts or like bodies created by the sovereign 
power of the state of its own sovereign will without the particu- 
lar solicitation, consent or concurrent action of the people who in- 
habit them ; organized almost exclusively with a view to the pol- 
icy of the state at large for the purpose of political organizaton 
and civil administration in purely governmental matters like 
finance, education, provision for the poor, military organization, 
or the general administration of justice. 18 All of their powers 
and functions have a direct and exclusive reference to govern- 

isLangford v. United States, 101 1888, c. 435; Silsby Mfg. Co. v. 

U. S. 341; United States v. Lee, State, 104 N. Y. 562, 11 N. E. 264. 

106 U. S. 196; United States v. But see Coster v. City of Albany, 43 

Great Falls M. Co., 112 U. S. 645; N. Y. 399; Lewis v. State, 96 N. Y. 

Hart v. United States, 118 U. S. 62; 71; Locke v. State, 140 N. Y. 480, 35 

United States v. Irwin, 127 U. S. N. E. 1076. 

125; Thayer v. United States, 20 IT state v. Hill, 54 Ala. 67; Clod- 

Ct. Cl. 137; Burke v. United States, felter v. State, 86 N. C. 51; Clark v. 

21 Ct. Cl. 317; Gumming v. United State, 47 Tenn. (7 Cold.) 306. 

States, 22 Ct. Cl. 344; Act March 3, is Jones v. City of New Haven, 

1887 (24 Stat. p. 505) c. 359. 34 Conn. 1. See authorities cited 

is Laws N. Y. 1876, c. 444; Laws from 1 to 8, ante. 
1883, c. 205; Laws 1884, c. 85; Laws 



& 955 LIABILITY FOR NEGLIGENCE. 2223 

mental affairs and they are, in fact, but branches of the general 
administration. Their duties are exclusively governmental. As 
a rule they include large areas sparsely settled and the relations 
of life and business within them are comparatively simple. Mu- 
nicipal corporations proper are not only governmental agents but 
are also organizations created under authority of law and possess- 
ing the power to provide for local necessities and conveniences for 
their own communities. They are created mainly for the inter- 
est, advantage and convenience of a particular locality and its 
people; they comprise ordinarily, congested centers of popula- 
tion in which the relations of private life and business are ex- 
ceedingly complex. Their powers and functions in the latter re- 
spect are not, as a rule, arbitrarily imposed by the sovereign but 
secured through their own affirmative action or by their consent. 
The people residing within their limits are given a greater lati- 
tude and degree of local self-government in adopting measures 
looking to their local advantage. The duties which rest upon 
them are more in number and more burdensome than those which 
devolve upon quasi corporations. 19 

955. Duties performed by each. 

From the discussion in the sections cited above and also in the 
preceding section, the chief points of differentiation can be log- 
ically deduced, namely, the element of consent as to form of gov- 
ernment, simplicity or complexity of private life and business re- 
lations within their limits and the right of exercising a greater 
or less number of powers and functions. Because of these dif- 
ferences in the organization and powers there is to be found a dif- 
ference also in their relative duties and obligations. The liabil- 
ity, obligations, and duties of a municipal corporation are justly 
increased and of a higher character than those which rest upon 
public quasi corporations. 

(a) Quasi corporation; liability. Since the government of a 
quasi corporation is ordinarily imposed by the sovereign, its busi- 
ness and private relations simple and further, because it performs 
solely governmental duties, the universal rule obtains that no 

i See authorities cited 1 et Tort, 1 et seq.; Jones Neg Mun. 
seq. See Williams, Mun. Liab. Corp. 20-25. 



2224 



LIABILITY FOR NEGLIGENCE. 



955 



liability exists in respect to the performance of its duties and 
obligations 20 unless one is expressly imposed by statute. 21 



20 May v. Juneau Co., 30 Fed. 241. 
County not liable in tort for in- 
fringement of patent. Pettit v. 
Chosen Freeholders of Camden 
County, 87 Fed. 768; Barbour Coun- 
ty v. Horn, 48 Ala. 649. Counties 
are liable for wrongs only when 
committed in the use or misuse of 
corporate powers conferred upon 
them. 

School Dist. No. 11 v. Williams, 
38 Ark. 454; Daly v. City & Town 
of New Haven, 69 Conn. 644, 38 
Atl. 397; Carter v. Wilds, 8 Houst. 
(Del.) 14, 31 Atl. 715; White Star 
Line Steamboat Co. v. Gordon 
County, 81 Ga. 47, 7 S. E. 231. De- 
fective bridge. Town of Waltham 
v. Kemper, 55 111. 346; Symonds v. 
Clay County Sup'rs, 71 111. 355. 
"Counties are involuntary quasi 
corporations being political or civil 
divisions of the state, created by 
general laws, to aid in the admin- 
istration of the government. The 
statute prescribes all their duties, 
and imposes all the liabilities to 
which they are subject, and unless 
made so by express legislative en- 
actment, they are not liable to per- 
sons injured by the wrongful neg- 
lect of duty or wrongful acts of 
their officers or agents, done in 
the course of the execution of cor- 
porate powers or In the perform- 
ance of corporate duties. And the 
rule is the same in respect to such 
other corporations as townships, 
school districts, and road dis- 
tricts." 

Johnson County Com'rs v. Rein- 
ler, 18 Ind. App; lly, 47 N. E. 642; 
Pittsburgh, C. C. & St. L. R. Co. v. 
Iddings, 28 Ind. App. 504, 62 N. E. 



112; Freel v. School City of Craw- 
fordsville, 142 Ind. 27, 41 N. E. 
312, 37 L. R. A. 301; Packard v. 
Voltz, 94 Iowa, 277, 62 N. W. 757; 
Dashner v. Mills County, 88 Iowa, 
401; Williams v. Board of Com'rs 
of Kearny County, 61 Kan. 708, 
60 Pac. 1046. A county renting a 
building for use as a courthouse is 
liable to the owner for its destruc- 
tion by fire through the negli- 
gence of county officials charged 
with the duty of caring for the 
building. Arnold v. Town of Wal- 
ton, 21 Ky. L. R. 1722, 56 S. W. 
17. Wrongful removal of public 
officials. Riddle v. Locks & Ca- 
nals on Merrimac River, 7 Mass. 
169; Mower v. Inhabitants of Lei- 
cester, 9 Mass. 247; Murphy v. In- 
habitants of Needham, 176 Mass. 
422, 57 N. E. 689. 

Bank v. Brainerd School Dist., 
49 Minn. 106. "So the board of 
education is a corporation, which 
holds and manages the property 
in its control as trustee for the 
district, for a public purpose. It 
is made its duty to take care of 
and keep in repair the property 
of the district, but this is a duty 
which it owes to the district, and 
not to individuals, and is a duty 
imposed for the benefit of the pub- 
lic, with no consideration or emolu- 
ment to the corporation; and it 
is given a corporate existence sole- 
ly for the exercise of this public, 
or administrative function. It is 
organized for educational purposes, 
not for the benefit or protection of 
property or business interests." 

Reed v. Howell County, 125 Mo. 
58, 28 S. W. 177; Ball v. Town of 



953 



LIABILITY FOR NEGLIGENCE. 



2225 



(b) Municipal corporations; liability. A municipal corporation 
proper as a governmental agent in performing the duties apper- 
taining to that relation is subject to that rule of law just given 
in respect to public quasi corporations. There rests in addition, 
however, upon municipal corporations proper, certain obligations 
and duties which are the direct result of their private, local or 
proprietary character and in respect to their liability the rule 
above does not apply and they are almost universally held liable 
for a failure to properly perform these duties. 22 Such a liability 
may, however, be created solely by the result of some statutory 
provision. 23 

956. Character of duty. 

In a preceding section it was stated that to give rise to action- 
able negligence the character of the duty must be established as 
one on account of which a failure to perform or perform properly 
will give cause to a cause of action. There can exist no liability 
in respect to the performance of a governmental duty by either 
class of public corporations. In performing duties of this char- 
acter they are acting as a part of the sovereign and the same rule 



Winchester, 32 N. H. 435; Wake- 
field v. Village of Newport, 60 N. 
H. 374; Hughes v. Monroe County, 
79 Hun, 120, 29 N. Y. Supp. 120; 
Markey v. Queen's County, 154 
N.'Y. 675, 49 N. E. 71, 39 L. R. A. 
46; Jacobs v. Hamilton County, 1 
Bond, 500, Fed. Cas. No. 7,161. 
County not liable for infringement 
of patent. Crause v. Harris Coun- 
ty, 18 Tex. Civ. App. 375, 44 S. W. 
616; Field v. Albermarle County 
(Va.) 20 S. E. 954. But see May v. 
Mercer County 30 Fed. 246, and 
May v. Logan County Com'rs, 30 
Fed. 250, where counties are held 
liable for infringement of patent 
rights. 

21 City of Little Rock v. Willis, 
27 Ark. 572. 

22 Weightman v. Washington 

Abb. Corp. Vol. Ill 16. 



Corp., 1 Black. (U. S.) 39; City of 
Chicago v. Norton Milling Co., 97 
111. App. 651; Bennett v. City of 
New Orleans, 14 La. Ann. 120. A 
municipal corporation is not liable 
for damage to private property un- 
less the act which caused, it was 
done without lawful authority or 
being authorized by law was im- 
properly or wantonly executed. 
Boye v. City of Albert Lea, 74 
Minn. 230, 76 N. W. 1131; Conway 
v. Beaumont, 61 Tex. 10. A peti- 
tion seeking to charge liability 
must clearly show that the act 
complained of was unlawful. See, 
also, 984, post, with many au- 
thorities cited. 

23 City of Little Rock v. Willis, 
27 Ark. 572. 




2226 LIABILITY FOR NEGLIGENCE. 957 

of immunity applies. The sovereign is not subject in the exer- 
cise of any of its powers or the performance of its duties to the 
judgment of the courts which it creates or the principles of law 
applying to private persons which it establishes and enforces. 
All governmental agents partake of this freedom from scrutiny 
or liability unless a responsibility is directly assumed and im- 
posed by statute. 24 As usual, there, are certain duties which are 
clearly governmental in their character and in respect to which 
no dispute can arise and these will be noted in the immediate 
sections. 

957. Character of duty continued. 

Governmental duties within the above discussion are in general 
those which are exercised by the state or its delegated agents as 
a part of its sovereignty for the benefit of the whole community, 
because there is a universal obligation resting upon organized 
government, whatever its form, to protect all interests within its 
jurisdiction both personal and property and further, because the 
prevention of crime, the preservation of the public peace and 
health and the construction of general works of public improve- 
ment are beneficial acts in which the whole community is alike 
and equally interested. 25 The discharge of this obligation is del- 
egated or imposed in many cases by the state upon municipal cor- 

24 Rowland v. Inhabitants of Bridgeport, 70 Conn. 143, 39 Atl. 
Maynard, 159 Mass. 434, 34 N. E. 110. But a liability may be es- 
515, 21 L. R. A. 500; Alexander pecially imposed by a city charter, 
v. City of Milwaukee, 16 Wis. 247. City of New Orleans v. Kerr, 50 
A municipal corporation is not La. Ann. 413, 23 So. 384; Portland 
answerable for consequential dam- & R. R. Co. v. Inhabitants of Deer- 
ages produced by work of public ing, 78 Me. 61; Mahoney v. City of 
improvement made under lawful Boston, 171 Mass. 427; Peaty v. 
authority for the sole benefit of City of New York, 33 Misc. 231, 67 
the public provided the work is N. Y. Supp. 276; Coley v. City of 
done in a careful manner. See Statesville, 121 N. C. 301; Fred- 
953, ante. erick v. City of Columbus, 58 Ohio 

25 Hart v. City of Bridgeport, 13 St. 538; Conelly v. City of Nash- 
Blatchf. 289, Fed. Cas. No. 6,149; ville, 100 Tenn. 262; Bates v. City 
Jones v. City of New Haven, 34 of Houston, 14 Tex. Civ. App. 287; 
Conn. 1; Colwell v. City of Water- Sawyer v. Corse, 17 Grat. (Va.) 
bury, 74 Conn. 568, 51 Atl. 530, 57 230. 

L. R. A. 218; Swan v. City of 



957 



LIABILITY FOR NEGLIGENCE. 



2227 



porations proper. The obligations and duties which rest upon 
municipal corporations proper, the result of their private, local 
or proprietary character, are those which they are authorized to 
execute for their own emolument and from which they derive 
special advantage by the increased comfort of their citizens or the 
well ordering and convenient regulation of particular classes of 
the private business of their inhabitants but they are not exer- 
cised in the discharge of any general and recognized duty of gov- 
ernment for the common or universal benefit. 26 Familiar ex- 
amples of these duties or powers are the right to construct drains 
or sewers, 27 introduce water and light, 28 establish public parks 
and play grounds, 29 erect public markets, 30 make local improve- 



20 Clark v. City of Washington, 

12 Wheat. (U. S.) 40. Municipal 
corporations are liable for the 
acts and contracts .of their agents 
In connection with the establish- 
ment of a lottery authorized by 
law. Hart v. City of Bridgeport, 

13 Blatchf. 289, Fed. Cas. No. 6,149; 
Guthrie v. City of Philadelphia, 73 
Fed. 688; Fink v. City of Des 
Moines, 115 Iowa, 641, 89 N. W. 
28; Stewart v. City of New Or- 
leans, 9 La. Ann. 461; Coughlan v. 
City of Cambridge, 166 Mass. 268, 
44 N. E. 218; Sheldon v. Village of 
Kalamazoo, 24 Mich. 383; Weet v. 
Village of Brockport, 16 N. Y. 161, 
note; Tormey v. City of New York, 
12 Hun (N. Y.) 542; McCombs v. 
Town Council of Akron, 15 Ohio, 
474; Wagner v. City of Portland, 
40 Or. 389, 60 Pac. 985, 67 Pac. 300; 
Aldrich v. Tripp, 11 R. I. 141; City 
of Petersburg v. Applegarth's 
Adm'r, 28 Grat (Va.) 321. See, 
also, note 51 Cent. L. Jr., 126, on 
Municipal Liability for Breach of 
Duties. 

27 Norton v. City of New Bedford, 
166 Mass. 48, 43 N. E. 1034; Os- 
trander v. City of Lansing, 111 
Mich. 693, 70 N. W. 332. But see 



Brunswick Gas Light Co. v. Bruns- 
wick Village Corp., 92 Me. 493, 43 
Atl. 104. There is no liability on 
the part of a village for injury to 
gas pipes of a private company 
while it is constructing a public 
sewer in the village streets. See, 
also, 958 and 973, post, and 
437 et seq., ante. 

28 pine v. City of New York, 103 
Fed. 337. The seizure and perma- 
nent diversion of the waters of a 
stream by a city without compensa- 
tion to the lower owners is a con- 
tinuing wrong. Prince v. City of 
Quincy, 128 111. 443, 21 N. E. 768; 
Stock v. City of Boston, 149 Mass. 
410, 21 N. E. 871; Westphal v. City 
of New York, 34 Misc. 684, 70 N. 
Y. Supp. 1021; Bodge v. City of 
Philadelphia, 167 Pa. 492, 31 Atl. 
728; City of Ysleta v. Babbitt, 8 
Tex. Civ. App. 432, 28 S. W. 702. 
See 973 and 1002, post, ana 
472 et seq., ante. 

20 See 973, post, and 436, ante. 

so city of Savannah v. Cuilens, 38 
Ga. 344; Barron v. City of Detroit, 
94 Mich. 601, 54 N. W. 273, 19 L. R. 
A. 452; Weymouth v. City of New 
Orleans, 40 La. Ann. 344, 4 So. 218. 
See, also, 420 et seq., ante. 



2228 



LIABILITY FOR NEGLIGENCE. 



958 



ments, 81 or maintain its public places. 32 The liability, if one ex- 
ists, is not, however, an absolute one but only arises when a work 
of improvement or an act authorized by law is performed in an 
improper or unskilled manner. 33 

958. Municipal duty; construction of drains or sewers. 

A familiar illustration of a municipal duty is the construction 
and maintenance of a system of drains or sewers and the prin- 
ciple commonly obtains that in respect to the performance of 
this duty, a liability may arise on the part of a municipal corpo- 
ration. Such a system is usually constructed through the collec- 
tion of local assessments and it results in the local and special ad- 
vantage of those within its immediate vicinity. The action of public 
authorities relative to the construction of drains and sewers is a 
discretionary duty left for them to determine in their judgment and 



si City of Chicago v. Spoor, 91 
111. App. 472; Bear v. City of Allen- 
town, 148 Pa. 80, 23 Atl. 1062; City 
of Allentown v. Kramer, 73 Pa. 
406; Brink v. Borough of Dunmore, 
174 Pa. 395, 34 Atl. 598. When a 
city though acting within its pow- 
ers commits a trespass in the mak- 
ing of an improvement, it is liable. 
See, also, 422, et seq., ante. But 
see Fuller v. City of Grand Rapids, 
105 Mich. 529, 63 N. W. 530. City 
not guilty of conversion of private 
property used by paving con- 
tractor. 

32 McMahon v. City of Dubuque, 
107 Iowa, 62, 77 N. W. 517; Mullen 
v. Village of Glens Falls, 11 App. 
Div. 275, 42 N. Y. Supp. 113. Lia- 
bility resulting from use of steam 
roller. O'Donnell v. White, 23 R. 
L 318, 50 Atl. 333; Barksdale v. 
City of Laurens, 58 S. C. 413, 36 
S. 43. 661. But see McMulkin v. 
City of Chicago, 92 111. App. 331. 
A city may rightfully use any ordi- 
nary implement operated by steam 
lor the purpose of constructing or 



repairing its streets, such as a 
steam roller. Barney v. City of 
Lowell, 98 Mass. 570; Quinn v. 
City of Paterson, 27 N. J. Law (3 
Dutch.) 35; Russell v. City of Ta- 
coma, 8 Wash. 156, 35 Pac. 605. 

33 City of Denver v. Rhodes, 9 
Colo. 554, 13 Pac. 729; Fuller v. 
City of Atlanta, 66 Ga. 80; City 
of Bloomington v. Brokaw, 77 111. 
194. A city is liable for damages 
from surface water caused by 
raising the grade of a street. City 
of Joliet v. Harwood, 86 111. 110; 
City of Chicago v. Norton Milling 
Co., 97 111. App. 651; McQueen v. 
City of Elkhart, 14 Ind. App. 671. 
43 N. E. 460; Murphy v. City of 
Lowell, 128 Mass. 396; Hull v. In- 
habitants of Westfield, 133 Mass. 
433; Fuller v. City of Grand Rapids, 
105 Mich. 529; Tegeler v. Kansas 
City, 95 Mo. App. 162, 68 S. W. 
953; Kavanaugh v. City of Brook- 
lyn, 38 Barb. (N. Y.) 232; O'Don- 1 
nell v. White, 23 R. I. 318, 50 Atl. 
333. 



959 



LIABILITY FOR NEGLIGENCE. 



2229 



discretion resting upon the feasibility of the proposed "action as 
dependent upon local necessities and financial ability. 3 * The de- 
termination, therefore, to establish sewers, drains or a system of 
them, being a discretionary power, any action negative or affirma- 
tive in its character which may result in an injury to persons or 
property can create no liability on the part of the municipal cor- 
poration. 35 The power to establish a system being discretionary, the 
right to abolish or discontinue the maintenance of one already con- 
structed is also discretionary in its character and no consequent lia- 
bilitv can attach. 30 



959. Plan of work. 

The determination to construct a system of drains or sewers is 
regarded as a discretionary act and the adoption of a location or a 
plan of work or a comprehensive scheme and plan for drainage, 
unless palpably bad, partakes of the same nature. 37 Any injuries 



s* Byrne v. Town of Farmington, 
64 Conn. 367, 30 All. 138; Darling 
v. City of Bangor, 68 Me. 108; 
White v. Yazoo City, 27 Miss. 357; 
Hart v. City of Baraboo, 101 Wis. 
368, 77 N. W. 744. But see Damour 
v. Lyons City, 44 Iowa, 276. See, 
also, Bickerdike v. City of Chicago, 
185 111. 280, 56 N. E. 1096. 

as City of Huntsville v. Ewing, 
116 Ala. 576, 22 So. 984; Wilson v. 
City of Waterbury, 73 Conn. 416, 47 
Atl. 687; City of Rome v. Cheney, 
114 Ga. 194, 39 S. E. 933, 55 L. R. 
A. 221. A city is not liable for the 
death by drowning of a child nine 
years old in a properly constructed 
drain made for the purpose of car- 
rying off surface water. City of 
Americus v. Eldridge, 64 Ga. 524; 
City of Chicago v. Rustin, 99 111. 
App. 47; Town of Monticello v. 
Fox, 3 Ind. App. 481, 28 N. E. 1025; 
Hoard v. City of Des Moines, 62 
Iowa, 326; Morris v. City of Coun- 
cil Bluffs, 67 Iowa, 343; Knostman 
& Peterson Furniture Co. v. City 



of Davenport, 99 Iowa, 589; Bulger 
v. Inhabitants of Eden, 82 Me. 352, 
19 Atl. 829, 9 L. R. A. 205; Flagg v. 
City of Worcester, 79 Mass. (13 
Gray) 601; Woods v. Kansas City, 
58 Mo. App. 272; Wilson v. 
City of New York, 1 Denio (N. Y.) 
595; Anchor Brewing Co. v. Village 
of Dobbs Ferry, 84 Hun, 274, 32 
N. Y. Supp. 371; Mills v. City of 
Brooklyn, 32 N. Y. 489; Barton v. 
City of Syracuse, 37 Barb. (N. Y.) 
292; Lynch v. City of New York, 
76 N. Y. 60; Carr v. Northern Lib- 
erties, 35 Pa. 324; City of Chatta- 
nooga v. Reid, 103 Tenn. 616, 53 
S. W. 937; State v. McNay, 90 
Wis. 104, 62 N. W. 917. 

36 Simpson v. Keokuk, 34 Iowa, 
568; City of Atchison v. Challis, 9 
Kan. 603. But see O'Brien v. City 
of Worcester, 172 Mass. 348, 52 N. 
E. 385; City of Dallas v. Cooper 
(Tex. Civ. App.) 34 S. W. 321; 
Schroeder v. City of Baraboo, 93 
Wis. 95, 67 N. W. 27. 

37 McCoy v. Washington County, 



LIABILITY FOR NEGLIGENCE. 



95 



which may result, therefore, from defects in a reasonable plan 3! 
or scheme as a whole 39 or in part, can create no liability. The op- 
eration of this rule, however, will not prevent a recovery for in- 
juries suffered by a failure to provide a suitable outlet for sucl 
a system, 40 or for the construction of drains or sewers lacking ir 
capacity to carry off the natural drainage or sewage from the 



3 Wall. Jr. 381, Fed. Gas. No. 8,731; 
City of Troy v*. Coleman, 58 Ala. 
670; Wicks v. Town of DeWitt, 54 
Iowa, 130; Atwood v. City of Ban- 
gor, 83 Me. 582, 22 All. 466; Up- 
pington v. City of New York, 165 
N. Y. 222, 59 N. E. 91, 53 L. R. A. 
550, affirming 44 App. Div. 630, 60 
N. Y. Supp. 1150; Parks v. City 
Council of Greenville, 44 S. C. 168, 
21 S. E. 540; Smith v. Gould, 61 
Wis. 31. See, also, Child v. City 
of Boston, 86 Mass. (4 Allen) 41. 

33 city of Denver v. Capelli, 4 
Colo. 25; Hession v. City of Wil- 
mington (Del.) 27 Atl. 830, Id., 1 
Mara. (Del.) 122, 40 Atl. 749; Bick- 
erdike v. City of Chicago, 185 111. 
280; City of Terre Haute v. Hud- 
nut, 112 Ind. 542, 13 N. E. 686. In 
the erection of a plant, municipal 
authorities must exercise reasona- 
ble care in securing the services 
of persons skilled in such matters. 

Van Pelt v. City of Davenport, 
42 Iowa, 308; King v. Kansas City, 
58 Kansas 334, 49 Pac. 88; Hitch- 
Ins v. Town of Frostburg, 68 Md. 
100, 11 Atl. 826; Buckley v. City of 
New Bedford, 155 Mass. 64; Foster 
v. City of St. Louis, 4 Mo. App. 
564; Graves v. City of Olean, 64 
App. Div. 598, 72 N. Y. Supp. 799; 
Garratt v. Trustees of Canan- 
daigua, 135 N. Y. 436, 32 N. E. 142. 
Where the construction of a sys- 
tem of drainage and sewer is left 
to the discretion and judgment of 
public authorities, a village is not 



liable for the results of a faultj 
plan adopted in good faith. 

Fair v. City of Philadelphia, 8? 
Pa. 309; Bear v. City of Allen town 
148 Pa. 80, 23 Atl. 1062; Willett v 
Village of St. Albans, 69 Vt. 330 ; 
38 Atl. 72. But see Williams v 
Raleigh Tp., 21 Can. Sup. Ct. R 
103; City of New Albany v. Ray, 3 
Ind. App. 321, 29 N. E. 611; City ol 
Louisville v. Norris, 23 Ky. L. R 
1195, 64 S. W. 958. Where a lia 
bility followed from the adoption 
of a plan which was palpably bad. 
Young v. Kansas City, 27 Mo. App, 
101. The determination of the di- 
mension of a culvert is of a minis- 
terial and not of a judicial char- 
acter. 

39 Wilson v. City of Waterbury, 
73 Conn. 416, 47 Atl. 687. But see 
Lehn v. City & County of San Fran- 
cisco, 66 Cal. 76. 

40 City of Eufaula v. Simmons, 
86 Ala. 515, 6 So. 47; City of Bloom- 
ington v. Murnin, 36 111. App. 647; 
City of Terre Haute v. Hudnut, 112 
Ind. 542, 13 N. E. 686; Flanders v. 
City of Franklin, 70 N. H. 168, 47 
Atl. 88; Magee v. City of Brooklyn, 
18 App. Div. 22, 45 N. Y. Supp. 
473; Costich v. City of Rochester, 
68 App. Div. 623, 73 N. Y. Supp. 
835; Hardy v. City of Brooklyn, 
90 N. Y. 435; Donovan v. Royal, 26 
Tex. Civ. App. 248, 63 S. W. 1054. 
See, also, authorities cited note 
, 961 



959 



LIABILITY FOR NEGLIGENCE. 



2231 



territory designed. 41 In each of these instances a liability is im- 
posed for a failure to properly perform the duty. But a city is 
not bound to provide against an extraordinary or excessive rain- 
fall. 42 



^iBannagan v. District of Co- 
lumbia, 2 Mackay (D. C.) 285; 
Scanlan v. City of Montreal, 17 
Rap. Jud. Que. C. S. 363; Hession 
v. City of Wilmington, 1 Marv. 
(Del.) 122, 40 Atl. 749; Wilson v. 
Boise City, 6 Idaho, 391, 55 Pac. 
887; City of Dixon v. Baker, 65 111. 
518; City of Litchfield v. South- 
worth, 67 111. App. 398; City of 
Chicago v. Rustin, 99 111. App. 47; 
City of Indianapolis v. Huffer, 30 
Ind. 235; City of Lebanon v. Twl- 
ford, 13 Ind. App. 384, 41 N. E. 844; 
Damour v. Lyon City, 44 Iowa, 276; 
Knostman & Peterson Furniture 
Co. v. City of Davenport, 99 Iowa, 
589, 68 N. W. 887. If the damage 
was caused by clogging the catch 
basins of which the city had no 
notice and not by a negligent con- 
struction of them, no liability will 
accrue. 

Fox v. City of Richmond, 19 
Ky. L. R. 326, 40 S. W. 251; City 
of Louisville v. Gimpeel, 22 Ky. L. 
R. 1110, 59 S. W. 1096; Thoman v. 
City of Covington, 23 Ky. L. R. 117, 
62 S. W. 721; City of Louisville v. 
Norris, 23 Ky. L. R. 1195, 64 S. W. 
958; Allen v. City of Boston, 159 
Mass. 324; Seaman v. City of Mar- 
shall, 116 Mich. 327, 74 N. W. 484; 
Pearson v. City of Duluth, 40 Minn. 
438, 42 N. W. 394; Rochester White 
Lead Co. v. City of Rochester, 3 
N. Y. (3 Comst.) 463; Seifert v. 
City of Brooklyn, 101 N. Y. 136; 
King v. Granger, 21 R. I. 93, 41 Atl. 
1012; Powell v. Town of Wythe- 
ville, 95 Va. 73. 



Wilson v. City of Waterbury, 73 
Conn. 416, 47 Atl. 687. No lia- 
bility where plaintiffs were negli- 
gent in making proper connections 
with the sewer. Rozell v. City of 
Anderson, 91 Ind. 591; Rice v. City 
of Evansville, 108 Ind. 7. An error 
in judgment in respect to the 
necessary size does not make a 
city liable. Buckley v. City of New 
Bedford, 155 Mass. 64, 29 N. E. 
201; Munk v. City of Watertown, 
67 Hun, 261, 22 N. Y. Supp. 227; 
Collins v. City of Philadelphia, 93 
Pa. 72; Baer v. City of Allentown, 
148 Pa. 80, 23 Atl. 1062; Baxter v. 
Tripp, 12 R. I. 310; Kiesel v. Og- 
den City, 8 Utah, 237. 

42 District of Columbia v. Gray, 6 
App. D. C. 314. The question of 
whether a rainfall is such an extra- 
ordinary one as to amount to a 
providential visitation is one for a 
jury. Los Angeles Cemetery Ass'n 
v. City of Los Angeles, 103 Gal. 
461; Judd v. City of Hartford, 72 
Conn. 360, 44 Atl. 510. It, how- 
ever, the damage is caused by an 
obstruction left in the sewer by 
the city workmen, the fact that 
there was a severe but not extra- 
ordinary rainfall will not relieve 
the city of its liability. 

Harrigan v. City of Wilmington, 
8 Houst. (Del.) 140, 12 Atl. 779; 
Hession v. City of Wilmington, 1 
Marv. (Del.) 122, 40 Atl. 749, Id., 
(Del.) 27 Atl. 830; City of Savan- 
nah v. Cleary, 67 Ga. 153; City ot 
Keithsburg v. Simpson, 70 111. App. 
467; City of Peoria v. Adams, 72 



2232 



LIABILITY FOR NEGLIGENCE. 



9GO 



960. Construction. 

The adoption of a plan and the determination to establish cer- 
tain sewers or drains is alone of a discretionary character. After 
action in these respects has been taken, the construction of the 
work then becomes of a ministerial character and the usual rule 
applies in respect to a liability. 43 A municipal corporation is obli- 
gated to have the work carefully and skillfully constructed 44 



111. App. 662; City of Madison v. 
Ross, 3 Ind. 236; Brash v. City of 
St. Louis, 161 Mo. 433, 61 S. W. 
808; Smith v. City of New York, 4 
Hun (N. Y.) 637; Graves v. City of 
Clean, 64 App. Div. 598, 72 N. Y. 
Supp. 799; Wright v. City of Wil- 
mington, 92 N. C. 156; Fairlawn 
Coal Co. v. City of Scranton, 148 
Pa. 231, 23 Atl. 1069; Helbling v. 
Allegheny Cemetery Co., 201 Pa. 
171, 50 Atl. 970; Fair v. City of 
Philadelphia, 88 Pa. 309; Collins 
v. City of Philadelphia, 93 Pa. 
272; Allen v. City of Chippewa 
'Falls, 52 Wis. 430. But see Woods 
v. Kansas City, 58 Mo. App. 272. 
If a city is negligent in maintain- 
ing Its sewers it is liable although 
the rain causing the damage may 
have been of an extraordinary 
character. 

*3 City of Montgomery v. Gilmer, 
33 Ala. 116; City of Macon v. 
Small, 108 Ga. 309, 34 S. E. 152; 
City of Logansport v. Wright, 25 
Ind. 512; Peck v. Michigan City, 
149 Ind. 670, 49 N. E. 800; 
Murphy v. City of Indianapolis, 158 
Ind. 238, 63 N. E. 469; Wallace v. 
City of Muscatine, 4 G. Greene 
(Iowa) 373; Cooper v. City of Ced- 
ar Rapids, 112 Iowa, 367, 83 N. W. 
1050; Perkins v. City of Lawrence, 
136 Mass. 305; Simmer v. City of 
St. Paul, 23 Minn. 408; Foncannon 
v. City of Kirksville, 88 Mo. App. 



279; Donohue v. City of New York, 
3 Daly (N. Y.) 65; Evers v. Long 
Island City, 78 Hun, 242, 28 N. Y. 
Supp. 825; Barton v. City of Syra- 
cuse, 36 N. Y. 54; Lewenthal v. 
City of New York, 61 Barb. (N. Y.) 
511; Winn v. Village of Rutland, 52 
Vt. 481; Streiff v. City of Milwau- 
kee, 89 Wis. 218, 61 N. W. 770. A 
city is not liable in making a negli- 
gent re-connection with a private 
sewer. See, also, Moody v. Village 
of Saratoga Springs, 17 App. Div. 
207, 45 N. Y. Supp. 365, affirmed 
163 N. Y. 581, 57 N. E. 1118. 

City of Birmingham v. Lewis, 
92 Ala. 352; City of Denver v. 
Rhodes, 9 Colo. 554, 13 Pac. 729; 
City of Kankakee v. Linden, 38 
111. App. 657. The rule also applies 
to repairs being made on a sewer. 
City of Springfield v. Le Claire, 49 
111. 476. A city cannot escape lia- 
bility because of the construction 
of a sewer by a contractor. City 
of Ft. Wayne v. Coombs, 107 Ind. 
75; City of Leavenworth v. Casey, 
McCahon (Kan.) 544; Carondelet 
Canal & Nav. Co. v. City of New 
Orleans, 38 La. Ann. 308; Hamlin 
v. City of Biddeford, 95 Me. 308, 
95 Atl. 1100; Trowbridge v. Town 
of Brookline, 144 Mass. 139, 10 N. 
E. 796. A city is liable to the own- 
ers of a well made dry by the con- 
struction of a sewer. Prentiss v. 
City of Boston, 112 Mass. 43; Defer 



961 



LIABILITY FOR NEGLIGENCE. 



2233 



and of the proper materials and appliances. 45 It must furnish the 
necessary appliances and a safe and suitable place for its employes 
engaged in the work. 46 For a failure in any of these respects, one 
injured may recover damages. These rules do not apply to quasi 
corporations. 47 

961. Maintenance of sewers and drains. 

After the construction of drains and sewers, although orig- 
inally this was a discretionary duty, yet, the obligation to main- 
tain them in a safe and suitable condition is not one of that char- 
acter and the authorities must perform their duty in these re- 
spects or become liable for any injuries suffered. 48 A municipal 



v. City of Detroit, 67 Mich. 346, 34 
N. W. 680; Chalkley v. City of 
Richmond, 88 Va. 402, 14 S. E. 339. 

45 City of Helena v. Thompson, 
29 Ark. 569. 

4c Kansas City v. Slangsstrom, 53 
Kan. 431; Welter v. City of St. Paul, 

40 Minn. 460, 42 N. W. 392; Coan v. 
City of Marlborough, 164 Mass. 206, 

41 N. E. 238; Murphy v. City of 
Lowell, 124 Mass. 564; Pettingell v. 
City of Chelsea, 161 Mass. 368, 24 
L. R. A. 426. 

4" Packard v. Voltz, 94 Iowa, 277, 
2 N. W. 757. 

4 8 District of Columbia v. Gray, 
6 App. D. C. 314; City of Little 
Rock v. Willis, 27 Ark. 572; City 
of Denver v. Capelli, 4 Colo. 25; 
City of Brunswick v. Tucker, 103 
Ga. 233, 29 S. E. 701; City of Macon 
v. Dannenberg, 113 Ga. 1111, 39 S. 
E. 446; Massengale v. City of At- 
lanta, 113 Ga. 966, 39 S. E. 578; 
City of Valparaiso v. Cartwright 
8 Ind. App. 429, 35 N. E. 1051; 
Roll v. City of Indianapolis, 52 
Ind. 547; Hazzard v. City of Coun- 
cil Bluffs, 79 Iowa, 106; Correll v. 
City of Cedar Rapids, 110 Iowa, 
333, 81 N. W. 724; Kansas City v. 



King, 65 Kan. 64, 68 Pac. 1093; 
City of Louisville v. O'Malley, 21 
Ky. L. R. 873, 53 S. W. 287; Estes 
v. Inhabitants of China, 56 Me. 407. 
No liability will attach unless it 
appears that an obligation to con- 
struct the drain was imposed on 
the town. 

Hamlin v. City of Biddeford, 95 
Me. 308, 49 Atl. 1100; City of Balti- 
more v. Schnitker, 84 Md. 34, 34 Atl. 
1132; Kranz v. City of Baltimore, 
64 Md. 491; Allen v. City of Boston, 
159 Mass. 324, 34 N. E. 519; Emery 
v. City of Lowell, 104 Mass. 13; 
Collins v. City of Waltham, 151 
Mass. 196; Seaman v. City of Mar- 
shall, 116 Mich. 327; Tate v. City of 
St. Paul, 56 Minn. 527, 58 N. W. 
158; Netzer v. City of Crookston, 
59 Minn. 244, 61 N. W. 21; Woods 
v. Kansas City, 58 Mo. App. 272; 
Fuchs v. City of St. Louis, 167 
Mo. 620, 67 S. W. 610, 57 L. R. A. 
136; Rowe v. Portsmouth, 56 N. H. 
291; Boyd v. Town of Derry, 68 N. 
H. 272; Wessman v. City of Brook- 
lyn, 40 N. Y. State Rep. 698, 16 N. 
Y. Supp. 97; Ballou v. State, 111 
N. Y. 496, 18 N. E. 627; McCarthy 
v. City of Syracuse, 46 N. Y. 194; 



2234 



LIABILITY FOR NEGLIGENCE. 



961 



corporation cannot in respect to the construction or maintenance 
of a drainage or sewage system, especially in its discharge, create- 
either a public or private nuisance. 49 For the former, it is sub- 



Burnett v. City of New York, 36 
App. Div. 458, 55 N. Y. Supp. 893. 
Question of improper construction 
one for jury. 

Nims v. City of Troy, 59 N. Y. 
500; Smith v. City of New York, 66 
N. Y. 295; Munn v. City of Hudson, 
61 App. Div. 343, 70 N. Y. Supp. 
525; Talcott v. City of New York, 
58 App. Div. 514, 69 N. Y. Supp. 
360; Williams v. Town of Green- 
ville, 130 N. C. 93, 40 S. E. 977, 57 
L. R. A. 207; Markle v. Borough of 
Berwick, 142 Pa. 84, 21 All. 794; 
Briegel v. City of Philadelphia, 135 
Pa. 451; City of Nashville v. 
Sutherland, 94 Tenn. 356. City is 
liable only for want of ordinary 
care in the construction of sewers. 
City of Dallas v. Webb, 22 Tex. 
Civ. App. 48, 54 S. W. 398; City of 
Dallas v. Schultz (Tex. Civ. App.) 
27 S. W. 292; Lindsay v. City of 
Sherman (Tex. Civ. App.) 36 S. 
W. 1019; Scott v. Provo City, 14 
Utah, 31; Willett v. Village of St. 
Albans, 69 Vt. 330, 38 Atl. 72. City 
not liable for exemplary damages 
for the neglect or refusal of its 
trustees to repair a defective 
sewer. Livingstone v. City of 
Taunton, 155 Mass. 363; Cook v. 
City of Milwaukee, 24 Wis. 270; 
Gilluly v. City of Madison, 63 Wis. 
518; Schroeder v. City of Baraboo, 
93 Wis. 95. But see Dashner v. 
Mills County, 88 Iowa, 401, 55 N. W. 
468; Green v. Harrison County, 61 
Iowa, 311; Dermont v. City of De- 
troit, 4 Mich. 435; Nutting v. City of 
St. Paul, 73 Minn. 371, 76 N. W. 61. 
No liability for death of child 
drowned in a sewer. Clay v. Board, 



85 Mo. App. 237; Hughes v. City of 
Auburn, 161 N. Y. 96, 55 N. E. 389, 
46 L. R. A. 636; Weir v Borough 
of Plymouth, 148 Pa. 566. See note 
33 Am. & Eng. Corp. Cas. 87. 

As to necessity of notice see 
Parker v. City of Laredo, 9 Tex. 
Civ. App. 221, 28 S. W. 1048; City 
of Dallas v. McAllister (Tex. Civ. 
App.) 39 S. W. 173; City of Galves- 
ton v. Smith, 80 Tex. 69, 15 S. W. 
589; Whipple v. Village of Fair 
Haven, 63 Vt. 221, 21 Atl. 533. 

49 Carmichael v. City of Texar- 
kana, 94 Fed. 561; Morgan v. City 
of Danbury, 67 Conn. 484, 35 Atl. 
499; Platt v. City of Waterbury, 72 
Conn. 531, 45 Atl. 154, 48 L. R. A. 
691; Watson v. Town of New Mil- 
ford, 72 Conn. 561, 45 Atl. 167; 
Dorman v. City of Jacksonville, 13 
Fla. 538; Holmes v. City of At- 
lanta, 113 Ga. 961, 39 S. E. 458; 
Smith v. City of Atlanta, 75 Ga. 
110; City of Champaign v. For- 
rester, 29 111. App. 117; City of 
Jacksonville v. Doan, 145 111. 23, 
33 N. E. 878; City of Jacksonville 
v. Lambert, 62 111. 519; City of 
Bloomington v. Costello, 65 111. 
App. 407; Village of Kewanee v. 
Ladd, 68 111. App. 154; Mason v. 
City of Mattoon, 95 111. App. 525. 
Discharge of sewage in stream. 

City of Pekin v. McMahon, 154 
111. 141, 39 N. E. 484, 27 L. R. A. 
206; City of Valparaiso v. Hagen, 
153 Ind. 337, 54 N. E. 1062, 48 L. 
R. A. 707. A city discharging its 
sewage in a natural watercourse in 
conformity to a statute, free from 
negligence, will not be enjoined. 
Topeka Water Supply Co. v. City 



961 



LIABILITY FOR NEGLIGENCE. 



2235 



ject to indictment, in some jurisdictions, 50 and for the latter, it 
will be liable for damages shown. 51 



of Potwin Place, 43 Kan. 404, 23 
Pac. 578. Polution of stream by 
discharge of sewage. King v. Kan- 
sas City, 58 Kan. 334, 49 Pac. 88; 
Witham v. City of New Orleans, 49 
La. Ann. 929, 22 So. 38. Acts 1877, 
No. 14, prohibiting the casting of 
offal in the Mississippi river does 
not apply to a municipal corpora- 
tion. Macon v. City of Boston, 154 
Mass. 100, 28 N. E. 9; Constitution 
Wharf Co. v. City of Boston, 156 
Mass. 397, 30 N. E. 1134; Butler v. 
City of Worcester, 112 Mass. 541. A 
channel of a stream may be con- 
verted into a common sewer by leg- 
islative act. Middlesex County v. 
City of Lowell, 149 Mass. 509, 21 N. 
E. 872. A city cannot acquire a 
prescriptive right to continue the 
unlawful discharge of its sewerage 
into a private mill pond. 

Sayre v. City of Newark, 60 N. J. 
Eq 361, 45 Atl. 985, 48 L. R. A. 722, 
reversing 58 N. J. Eq. 136, 42 Atl. 
1068, determining the right of the 
city of Newark under its charter to 
use the Passaic river as an outlet 
for a public sewer. Butler v. Village 
of Edgewater, 53 Hun, 633, 6 N. Y. 
Supp. 174; Beach v. City of Elmira, 
58 Hun, 606, 11 N. Y. Supp. 913; 
Schriver v. Village of Johnstown, 
71 Hun, 232, 24 N. Y. Supp. 1083; 
Stoddard v. Village of Saratoga 
Springs, 127 N. Y. 261, 27 N. E. 
1030, affirming 52 Hun, 610, 4 N. 
Y. Supp. 745; Gillett v. Trustees of 
Village of Kinderhook, 77 Hun, 604, 
28 N. Y. Supp. 1044; Magee v. City 
of Brooklyn, 18 App. Div. 22, 45 
N. Y. Supp. 473; Martin v. City of 
Brooklyn, 32 App. Div. 411, 52 N. 



Y. Supp. 1086; Butler v. Village of 
White Plains, 59 App. Div. 30, 69 
N. Y. Supp. 193; Briegel v. City of 
Philadelphia, 135 Pa. 451, 19 Atl. 
1038; Butchers' Ice & Coal Co. v. 
City of Philadelphia, 156 Pa. 54; 
Owens v. City of Lancaster, 182 Pa. 
257, 37 Atl. 858. If a city uses a 
stream as an open sewer, the duty 
still remains of keeping open the 
channel. City of San Antonio v. 
Pizzini (Tex. Civ. App.) 58 S. W. 
635; City of San Antonio v. Diaz 
(Tex. Civ. App.) 62 S. W. 549; Don- 
ovan v. Royal, 26 Tex. Civ. App. 
248, 63 S. W. 1054; Winn v. Village 
of Rutland, 52 Vt. 481; Harper v. 
City of Milwaukee, 30 Wis. 365. 
But see Merrifield v. City of Wor- 
cester, 110 Mass. 216. 

soBrayton v. City of Fall River, 
113 Mass. 218; Boston Rolling Mills 
v. City of Cambridge, 117 Mass. 396. 

si Arn v. Kansas City, 14 Fed. 
236; Watson v. Town of New Mil- 
ford, 72 Conn. 561, 45 Atl. 167; 
City of Atlanta v. Warnock, 91 Ga. 
210, 18 S. E. 135, 23 L. R. A. 301; 
Elgin Hydraulic Co. v. City of El- 
gin, 74 111. 433; City of Litchfleld 
v. Whitenack, 78 111. App. 364. Ad- 
missibility of evidence. City of 
Seymour v. Cummins, 119 Ind. 148, 
21 N. E. 549, 5 L. R. A. 126; Lough- 
ran v. City of Des Moines, 72 Iowa, 
382, S4 N. W. 172; Morse v. City of 
Worcester, 139 Mass. 389; Semple 
v. City of Vicksburg, 62 Miss. 63; 
Smith v. City of Sedalia, 152 Mo. 
283, 53 S. W. 907, 48 L. R. A. 711; 
Vale Mills v. Nashua, 63 N. H. 136; 
Huff mire v. City of Brooklyn, 22 
App. Div. 406, 48 N. Y. Supp. 132^ 



LIABILITY FOR NEGLIGENCE. 



962 



962. Governmental duties; maintenance of government. 

The organization of an established form of government is a 
purely governmental duty and no liability can arise in respect to 
acts which have this for their purpose. 52 Damages cannot be re- 
covered, therefore, for injuries committed by tax officers while 
in the performance of their duty 53 or for any act done in connec- 
tion with the levy and the collection of general taxes. 54 In re- 
spect to the levy and the collection of local assessments or taxes 
in some cases, a different rule has been applied, for these are im- 
posed for the purpose of constructing some local improvement in 
furtherance of a local, private or proprietary duty. 55 The rule 
of nonliability also applies to the condition or erection of public 
buildings. 56 



City is liable for damage to oyster 
beds occasioned by discharge of 
sewage. 

Vanderslice v. City of Philadel- 
phia, 1S3 Pa. 102; Owens v. City 
of Lancaster, 182 Pa. 257, 37 Atl. 
858; Pomroy v. Granger, 18 R. I. 
624, 29 Atl. 690; City of San An- 
tonio v. Mackey's Estate, 22 Tex. 
Civ. App. 145, 54 S. W. 33; Win- 
chell v. City of Waukesha, 110 
Wis. 101, 85 N. W. 668. A city has 
no greater right to pollute a navi- 
gable stream than an individual, 
in the absence of legislative au- 
thority. See, also, Fahey v. Town 
of Harvard, 62 111. 28. 

52 "Wallace v. Town of Norman, 9 
Okl. 339, 60 Pac. 108, 48 L. R. A. 
620. The rule also applies to a 
failure to take efficient means for 
the protection of certain classes 
of residents; negroes for example. 
McAndrews v. Hamilton County, 
105 Tenn. 399, 58 S. W. 483. See, 
also, note 19 L. R. A. 452, 43 L. R. 
A. 435. 

ss State v. Fish, 4 Nev. 216; Bank 
of the Commonwealth v. City of 
New York, 43 N. Y. 184; Bates v. 



Village of Rutland, 62 Vt. 178, 20 
Atl. 278, 9 L. R. A. 363. 

54 Sherbourne v. Yuba County, 21 
Cal. 113; Pitkin County Com'rs v. 
Ball, 22 Colo. 125, 43 Pac. 1000; 
Estep v. Keokuk County, 18 Iowa, 
199; Crafts v. Inhabitants of El- 
liotsville, 47 Me. 141; Snow v. In- 
habitants of Brunswick, 71 Me. 580; 
Inhabitants of Liberty v. Hurd, 74 
Me. 101; Dunbar v. City of Boston, 
112 Mass. 75; Lorillard v. Town of 
Monroe, 11 N. Y. (1 Kern.) 392; 
De Grauw v. Queen's County Sup'rs, 
13 Hun (N. Y.) 381; Everson v. City 
of Syracuse, 100 N. Y. 577; Hop- 
kins v. Town of Elmore, 49 Vt. 
176; Thomas v. Town of Graf ton, 
34 W. Va. 282, 12 S. E. 478; Wal- 
lace v. City of Menasha, 48 Wis. 
79. But see Teall v. City of Syra- 
cuse, 120 N. Y. 184, 24 N. E. 450. 

53 Gould v. City of Atlanta, 60 
Ga. 164; Williams v. Village of Dun- 
kirk, 3 Lans. (N. Y.) 44; Howell 
v. City of Buffalo, 15 N. Y. 512; 
Durkee v. City of Kenosha, 59 Wis. 
123. 

56 City of El Paso v. Causey, 1 
111. App. 531; Hollenbeck v. Winne- 



963 



LIABILITY FOR NEGLIGENCE. 



2231 



963. The public safety. 

In respect to the duty of organized government to provide for 
the safety of property or life, the only dependence of those within 
its jurisdiction is the efficient maintenance of agencies or provis- 
ions having this for their purpose, for public corporations are not 
liable for the acts or failure to act of their officers or agents in 
the performance of this duty. 57 There can be no liability for an 
exercise of or a failure to exercise the police power. 58 

Fire department. Under this rule a public corporation is not 
ordinarily liable for injuries resulting from its failure to protect 
property from destruction by fire 59 or for damages to or caused 



bago County, 95 111. 148; Vigo Co. 
Com'rs v. Daily, 132 Ind. 73, 31 N. 
E. 531; Kincaid v. Hardin County, 
53 Iowa, 430; Sheppard v. Pulaski 
County, 13 Ky. L. R. 672, 18 S. W. 
15; McNeil v. City of Boston, 178 
Mass. 326, 59 N. E. 810; Larrabee 
v. Inhabitants of Peabody, 128 Mass. 
561; Worden v. City of New Bed- 
ford, 131 Mass. 23. But if a room 
in a public building is left for a 
hire to private persons, the city 
will be responsible for its safe 
condition. See, also, Little v. City 
of Holyoke, 177 Mass. 114, 58 N. E. 
170, 52 L. R. A. 417. 

Dosdall v. Olmsted County, 30 
Minn. 96; Miller v. City of St. Paul, 
38 Minn. 134, 36 N. W. 271; Snider 
v. City of St. Paul, 51 Minn. 466, 
53 N. W. 763, 18 L. R. A. 151; 
. Miller v. City of Minneapolis, 75 
Minn. 131, 77 N. W. 788; Cunning- 
ham v. City of St. Louis, 96 Mo. 53, 
8 S. W. 787; Eastman v. Meredith, 
36 X. H. 284. 

5- Kansas City v. Lemen (C. C. 
A.) 57 Fed. 905; Mead v. City of 
New Haven, 40 Conn. 72. Not lia- 
ble for negligence of inspector of 
steam boiler. Green v. Eden, 24 
Ind. App. 583, 56 N. E. 240. 



ss Easterly v. Town of Irwin, 99 
Iowa, 694; Howe v. City of New 
Orleans, 12 La. Ann. 481; Betham 
v. City of Philadelphia, 196 Pa. 
302, 46 Atl. 448; Stinnett v. City of 
Sherman (Tex. Civ. App.) 43 S. W. 
847; Bolton v. Vellines, 94 Va. 393. 

59 City of New York v. Workman 
(C. C. A.) 67 Fed. 347; Wright v. 
City of Augusta, 78 Ga. 241; Robin- 
son v. City of Evansville, 87 Ind. 
334; Patch v. City of Covington, 

56 Ky. (17 B. Mon.) 722; Davis v. 
City of Lebanon, 22 Ky. L. R. 384, 

57 S. W. 471; Planters' Oil Mill v, 
Monroe Water-works & Light Co., 
52 La. Ann. 1243, 27 So. 684; Haf- 
ford v. City of New Bedford, 82 
Mass. 297; Tainter v. City of Wor- 
cester, 123 Mass. 311; Heller v. 
City of Sedalia, 53 Mo. 159; Smith 
v. City of Rochester, 76 N. Y. 506; 
Walter v. Meader, 75 App. Div. 612 r 
77 N. Y. Supp. 407; Springfield F. & 
Marine Ins. Co. v. Village of Keese- 
ville, 148 N. Y. 46, 42 N. E. 405, 30 
L. R. A. 660, reversing 80 Hun, 162, 
29 N. Y. Supp. 1130; Wheeler v. 
City of Cincinnati, 19 Ohio St. 19; 
Frederick v. City of Columbus, 58 
Ohio St. 538, 51 N. E. 35; Irvine v. 
City of Chattanooga, 101 Tenn. 291, 



2238 



LIABILITY FOR NEGLIGENCE 



963 



by any of the agencies employed by it for this purpose. 60 The rule 
of nonliability also applies where the duty of furnishing a supply 
of water has been assumed under contract or otherwise by pri- 
vate persons engaged in the business of furnishing water not only 
for private but also public uses. 61 



47 S. W. 419; Butterworth v. Hen- 
rietta, 25 Tex. Civ. App. 467, 61 S. 
W. 975; Terry v. City of Richmond, 
94 Va. 537, 38 L. R. A. 834; Mendel 
v. City of Wheeling, 28 W. Va. 233; 
Hayes v. City of Oshkosh, 33 Wis. 
314. See, also, note 23 L. R. A. 
146, 30 L. R. A. 661. But see Len- 
zen v. City of New Braunfels, 13 
Tex. Civ. App. 335, 35 S. W. 341. 

so Howard v. City & County of 
San Francisco, 51 Cal. 52; Jewett 
v. City of New Haven, 38 Conn. 
368; Saunders v. City of Ft. Madi- 
son, 111 Iowa, 102, 82 N. W. 428; 
Greenwood v. City of Louisville, 
76 Ky. (13 Bush) 226; Burrill v. 
City of Augusta, 78 Me. 118; Pet- 
tingell v. City of Chelsea, 161 
Mass. 368, 37 N. E. 380, 24 L. R. A. 
426; Fisher v. City of Boston, 104 
Mass. 87; Dolloff v. Inhabitants of 
Ayer, 162 Mass. 569, 39 N. E. 191; 
Grube v. City of St. Paul, 34 Minn. 
402; Alexander v. City of Vicks- 
burg, 68 Miss. 564, 10 So. 62; Gil- 
lespie v City of Lincoln, 35 Neb. 
34, 52 N. W. 811, 16 L. R. A. 349; 
Edgerly v. City of Concord, 62 N. 
H. 8; Wild v. City of Paterson, 47 
N. J. Law, 406; Kies v. City of 
Erie, 135 Pa. 144, 19 Atl. 942; 
Dodge v. Granger, 17 R. I. 664, 24 
Atl. 100, 15 L. R. A. 781; Shane- 
werk v. City of Ft. Worth, 11 Tex. 
Civ. App. 271, 32 S. W. 918; Law- 
son v. City of Seattle, 6 Wash. 184, 
33 Pac. 347. But see Newcomb v. 
Boston Protective Dept., 146 Mass. 
596, 16 N. E. 555. The rule does 



not apply to a private corpora- 
tion organized for the purpose of 
protecting insured property from 
fire. 

Wagner v. City of Portland, 40 Or. 
389, 69 Pac. 985, 67 Pac. 300. The 
rule of maritime law which holds 
the owner of a vessel liable for in- 
juries inflicted through negligence 
in its navigation rests upon the 
fact of ownership, not on the rela- 
tion of master and servant, and 
the principle which exempts a city 
from liability for negligent acts of 
its firemen does not apply and the 
public corporation may be held re- 
sponsible to the extent of the value 
of the tug or fire vessel. See the 
following cases: Workman v. City 
of New York, 63 Fed. 298; Thomp- 
son Nav. Co. v. City of Chicago, 79 
Fed. 984. The city is liable in per- 
sonam for injuries caused to a ves- 
sel by the negligence of a fire tug. 
Henderson v. City of Cleveland, 93 
Fed. 844. 

ci Boston Safe-Deposit & Trust 
Co. v. Salem Water Co., 94 Fed. 
238; Nickerson v. Bridgeport Hy- 
draulic Co., 46 Conn. 25, Bush v. 
Artesian Hot & Cold Water Co., 4 
Idaho, 618, 43 Pac. 69; Fitch v. Sey- 
mour Water Co., 139 Ind. 214, 37 
N. E. 982; Becker v. Keokuk Wat- 
er-works, 79 Iowa, 419, 44 N. W. 
694; Van Horn v. City of Des 
Moines, 63 Iowa, 447; Mott v. Cher- 
ryvale Water & Mfg. Co., 48 Kan. 
12, 15 L. R. A. 375; Owensboro 
Water Co. v. Duncan's Adm'x, 17 



964 



LIABILITY FOR NEGLIGENCE. 



2239 



964. Destruction of property by mob. 

Although it is the duty of organized government to protect 
property and life within its jurisdiction, yet it is not a legal one 
and the rule also obtains that no redress can be had for the de- 
struction of property or of life by riotous assemblages or mobs 
unless this duty is expressly and clearly imposed by statute. 62 



Ky. L. R. 755, 32 S. W. 478. Non- 
liability result of special contract 
provision. Sandusky v. Central 
City, 22 Ky. L. R. 669, 58 S. W. 516; 
Howsmon v. Trenton Water Co., 24 
Mo. 304, 24 S. W. 784; Phoenix 
Insurance Co. v. Trenton Water 
Co., 42 Mo. App. 118; Eaton v. Fair- 
bury Water-works Co., 37 Neb. 546, 
56 N. W. 201, 21 L. R. A. 653; Black- 
burn v. Reilly, 47 N. J. Law, 290, 1 
Atl. 27; Gerli v. Poidebard Silk 
Manufacturing Co., 57 N. J. Law, 
432, 31 Atl. 401, 30 L. R. A. 61; 
Wainwright v. Queens County Wat- 
er Co., 78 Hun, 146, 28 N. Y. Supp. 
987; Black v. City of Columbia, 19 
S. C. 412; Foster v. Lookout Water 
Co., 71 Tenn. (3 Lea) 42; House v. 
Houston Water-works Co., 88 Tex. 
233, 31 S. W. 179, 28 L. R. A. 532; 
Britton v. Green Bay & Ft. H. 
Water-works Co., 81 Wis. 48, 51 N. 
W. 84; Green v. Ashland Water 
Co., 101 Wis. 258, 43 L. R. A. 117. 
But see Bienville Water Supply 
Co. v. City of Mobile, 112 Ala. 260, 
20 So. 742, 33 L. R. A. 59; Paducah 
Lumber Co. v. Paducah Water Sup- 
ply Co., 11 Ky. L. R. 738, 12 S. W. 
554, 13 S. W. 249. Special contract 
provision. Graves County Water 
& Light Co. v. Ligon, 23 Ky. L. R. 
2149, 66 S. W. 725; Light, Heat & 
Water Co. v. City of Jackson, 73 
Miss. 598, 19 So. 771; Middlesex 
Water Co. v. Knappmann Whiting 
Co., 64 N. J. Law, 240, 45 Atl. 692, 
49 L. R. A. 572. Liability imposed 



by special contract, following 
Public Schools of Trenton v. Ben- 
nett, 27 N. J. Law (3 Dutch) 513; 
Gorrell v. Greensboro Water Supply 
Co., 124 N. C. 328, 32 S. E. 720, 46 
L. R. A. 513. Special contract cre- 
ating liability. 

62 Louisiana v. City of New Or- 
leans, 109 U. S. 285; Hart v. City 
of Bridgeport, 13 Blatchf. 289, Fed. 
Gas. No. 6,149; City of New Or- 
leans v. Abbagnato (C. C. A.) 62 
Fed. 240, 26 L. R. A. 329; Clear 
Lake Water-works v. Lake Co., 45 
Cal. 90; Wing Chung v. City of 
Los Angeles, 47 Cal. 531. To re- 
cover, parties whose property is 
destroyed by mob, having knowl- 
edge of an impending danger, must 
use due diligence to notify mayor 
or sheriff of the threatened danger 
to their property. They cannot re- 
cover if they instigate or partici- 
pate in a riot. 

Spring Valley Coal Co. v. City 
of Spring Valley, 96 111. App. 230, 
65 111. App. 571. It is not the duty 
of an owner of property to employ 
armed men to defend his property 
against a mob in order to recover, 
under 111. Laws 1887, p. 239, which 
provides for the indemnification of 
the owners of property for dama- 
ges occasioned by mobs and riots. 
City of Chicago v. Manhattan Ce- 
ment Co., 178 111. 372, 53 N. E. 68, 
45 L. R. A. 848. The obligations 
assumed in paying for property de- 
stroyed by mob under statutory 



2240 



LIABILITY FOR NEGLIGENCE. 



96* 



The reasons for the adoption of such salutory laws are principally 
two, namely, first, an application in a modified way of the con- 
tract theory of the state. An individual not a member of society 
possesses the right to protect with all the means at his disposal 
and to the best of his ability his property and the lives of himself 
and family. Upon becoming a member of organized government, 
he surrenders this right to that government which is to protect his 
rights in this respect in return for his support. The contract 
duty, therefore, rests upon the state to protect the lives and prop- 
erty of all within its jurisdiction or, if it fails in this respect, it 
should assume a pecuniary responsibility. 63 The other reason for 
the adoption of these statutes is that the enforcement of the law 
and the protection of property and life is one of the main pur- 
poses of a vigorous government of civilized people and nothing 
can lead to a more efficient performance of these duties than the 
imposition of a local and pecuniary liability upon those who fail 
to properly perform them. 64 



liability is not an indebtedness 
unconstitutional under constitution, 
art. 9, 9 and 10. 

Adams v. City of Salina, 58 Kan. 
246, 48 Pac. 918; Prather v. City 
of Lexington, 52 Ky. (13 B. Mon.) 
559; Fortunich v. City of New Or- 
leans, 14 La. Ann. 115; Folsom v. 
City of New Orleans, 28 La. Ann. 
936; Brightman v. Inhabitants of 
Bristol, 65 Me. 426; City of Balti- 
more v. Poultney, 25 Md. 107; 
May v. City of Anaconda, 26 Mont. 
140, 66 Pac. 759; Chadbourne v. 
Town of New Castle, 48 N. H. 196; 
Palmer v. City of Concord, 48 N. 
H. 211; Newberry v. City of New 
York, 31 N. Y. Super. Ct. (1 
Sweeny) 369; Loomis v. Oneida 
County Sup'rs, 6 Lans. (N. Y.) 269; 
Blodgett v. City of Syracuse, 36 
Barb. (N. Y.) 526; Sarles v. City of 
New York, 47 Barb. (X. Y.) 447; 
Western College of Homeopathic 
Medicine v. City of Cleveland, 12 
Ohio St. 375; Fordyce v. Godnian, 



20 Ohio St. 1; Champaign County 
Com'rs v. Church, 62 Ohio St. 318, 
57 N. E. 50, 48 L. R. A. 738; Cald- 
well v. Cuyahoga County Com'rs, 62 
Ohio St. 318, 57 N. B. 50, 48 L. R. A. 
738; Brown v. Orangeburg County, 
55 S. C. 45, 32 S. E. 764, 44 L. R. 
A. 734; Aron v. City of Wausau, 98 
Wis. 592, 74 N. W. 354, 40 L. R. A. 
733. See, also, notes 24 L. R. A. 
592, 26 L. R. A. 332, 40 L. R. A. 733, 
and 48 L. R. A. 620. 

cs City of Chicago v. Chicago 
League Ball Club, 196 111. 54, 63 
N. E. 695, reversing 97 111. App. 
637. The owner of property used 
by public authorities in the quell- 
ing of a riot is not entitled to com- 
pensation. Luke v. City of Brook- 
lyn, 43 Barb. (N. Y.) 54; Allegheny 
County v. Gibson, 90 Pa. 397. 

6* Pennsylvania Co. v. City of 
Chicago, 81 Fed. 317, 111. Rev. St. 
1895, c. 38, 256o, making a city 
liable for loss of property arising 
from mobs and riots, is valid. 



964 



LIABILITY FOR NEGLIGENCE. 



2241 



Where a liability is imposed by law, the right of one to recover 
is determined by absence of contributory negligence and by the 
scope of the statute. 05 It is riot necessary that the property de- 
stroyed should be owned by a resident or citizen of the com- 
munity ; it may be goods in transit from one part of the country 
to another. 06 The right to recover also depends upon the char- 
acter of the assemblage and in this question is involved a defini- 
tion of a "mob," 67 "riot," 68 or whatever phraseology may be 
used in the particular law. 69 



es Gianfortone v. City of New Or- 
leans, 61 Fed. 64, 24 L. R. A. 592, 
La. Rev. St. 2453, making munici- 
pal corporations liable for the de- 
struction of property by mobs, does 
not include a liability for the tak- 
ing of life. City of New Orleans 
v. Abbagnato (C. C. A.) 62 Fed. 
240, 26 L. R. A. 329; Dale County 
v. Gunter, 46 Ala, 118, 137, con- 
struing Ala. Act. of Dec. 28th, 1868, 
creating a liability for injury by 
mobs. Fisher Land & Improve- 
ment Co. v. Bordelon, 52 La. Ann. 
429, 27 So. 59. A parish is not a 
municipal corporation within the 
intent of La. Rev. St. 2453, pro- 
viding that municipal corporations 
in the state shall be liable for dam- 
ages done to property by mobs or 
riotous assemblages in their re- 
spective limits. 

Underbill v. City of Manchester, 

45 N. H. 214; Hill v. Rensselaer 
County Sup'rs, 53 Hun, 194, 6 N. Y. 
Supp. 716; Schiellein v. Kings Coun- 
ty Sup'rs, 43 Barb. (N. Y.) 490; 
Moody v. Niagara County Sup'rs, 

46 Barb. (N. Y.) 659; Paladino v. 
Westchester County Sup'rs, 47 Hun 
(N. Y.) 337; Salisbury v. Washing- 
ton County, 22 Misc. 41, 48 N. Y. 
Supp. 122, construing Laws 1892, c. 
685, 21, Marshall v. City of Buf- 
falo, 63 App. Div. 603, 71 N. Y. Supp. 
"19, 50 App. Div. 149, 64 N. Y. Supp. 

Abb. Corp. Vol. Ill 17. 



411. See, also, as to the power of 
the city council to destroy public 
buildings, Whitney v. City of New 
Haven, 58 Conn. 450, 20 Atl. 666. 

oe Allegheny County v. Gibson, 90 
Pa. 397. 

67 Street v. City of New Orleans, 
32 La. Ann. 577; Duffy v. Balti- 
more, Taney, 200. Under Md. Laws 
1835, c. 187, making any county 
and incorporated town in which a 
riot occurs liable for injuries to or 
destruction of property occasioned 
thereby, to entitle the plaintiff to 
recover, it must appear that the 
mob was too strong to be resisted 
without the aid of civil authorities 
and that they were negligent in 
the use of reasonable diligence to 
suppress or prevent it. 

es Duryea v. City of New York, 
10 Daly (N. Y.) 300; City of Madi- 
sonville v. Bishop, 23 Ky. L. R. 2346, 
67 S. W. 269. To constitute a "riot- 
ous or tumultuous assemblage of 
people" it is not necessary that the 
assemblage be bent on evil; a city 
will be liable for injuries to prop- 
erty" by such an assemblage though 
the persons composing it were cele- 
brating Christmas. 

69 Dale County v. Gunter, 46 Ala. 
118; Luke v. Calhoun County, 52 
Ala. 115; Aron v. Wausau, 98 Wis. 
592, 74 N. W. 354, 40 L. R. A. 733. 




2242 



LIABILITY FOR NEGLIGENCE. 



965 



965. Destruction of property for public purposes. 

Often in the performance of that duty by public officials which 
has for its result the preservation or safety of property, it is 
found necessary in their discretion to destroy buildings and other 
property. This is notably true in the case of extensive fires. 
Without giving a reason for the adoption of the rule, it is suffi- 
cient to say that where the destruction has been occasioned by 
public officials in good faith, and within the exercise of their 
best judgment and discretion, no liability can attach. 70 

The same rule of nonliability also attaches in the case of the 
destruction of goods or of property or injuries received in the en- 
forcement of quarantine measures or in the suppression of some 
contagious or infectious disease. 71 Neither can there arise any 
liability on the part of the public corporation for the destruction 
of property in the abatement of a nuisance 72 or in the abatement 



TODunbar v. Alcalde & Ayunta- 
miento of San Francisco, 1 Cal. 
355; Correas v. City of San Fran- 
cisco, 1 Cal. 452; Field v. City of 
Des Moines, 39 Iowa, 575; Parsons 
v. Pettingell, 93 Mass. (11 Allen) 
507. The statute giving authority 
to fire tugs to destroy property to 
prevent the spread of fire should 
be strictly construed. McDonald v. 
City of Red Wing, 13 Minn. (Gil. 
-25), 38; American Print Works v. 
Lawrence, 23 N. J. Law, (3 Zab.) 
590; Russell v. City of New York, 
2 Denio (N. Y.) 464; City Fire Ins. 
Co. v. Corlies, 21 Wend. (N. Y.) 
367; People v. City of Buffalo, 76 
N. Y. 558. By charter provision an 
owner may be allowed a limited 
indemnity for his property thus de- 
stroyed. Aitken v. Village of 
Wells River, 705 Vt. 308, 40 Atl. 
829, 41 L. R. A. 566. The same 
rule also holds in respect to prop- 
erty destroyed to prevent a flood. 
But see City of Quebec v. Mahoney, 
10 Rap. Jud. Que. B. R. 378; Town 
of Dawson v. Kuttner, 48 Ga. 133. 



See, also, City of Chicago v. Chi- 
cago League Ball Club, 196 111. 54, 
63 N. E. 695, reversing 97 111. App. 
637; Ruggles v. Inhabitants of Nan- 
tucket, 65 Mass. (11 Cush.) 433. 
Jones v. City of Richmond, 18 Grat. 
(Va.) 517. Where under special 
charter provision the city was held 
liable for the destruction of liquor 
in anticipation of an evacuation of 
the city by the confederate army. 
Wallace v. City of Richmond, 94 
Va. 204. For the use of private 
property by public corporations 
without compensation see Ensley 
v. City of Nashville, 61 Tenn. (2 
Baxt.) 144. See, also, Harman v. 
City of Lynchburg, 33 Grat. (Va.) 
37, where a city was held not re- 
sponsible for property destroyed by 
its police force without authority. 

71 Nicholson v. City of Detroit, 
129 Mich. 246, 88 N. W. 695, 56 L. 
R. A. 601; Levin v. Town of Bur- 
lington, 129 N. C. 184, 39 S. E. 822, 
55 L. R. A. 396; see, also, 122 
et seq., ante. 

72 city of Orlando v. Pragg, 31 



966 



LIABILITY FOR NEGLIGENCE. 



2243 



of a nuisance itself which possibly may be affected without the 
destruction of property. 

966. The public peace. 

The preservation of the public peace is another purely govern- 
mental function in respect to the character of which there can be 
no dispute. The same rule of nonliability, therefore, applies 73 
and public corporations will not be held liable for injuries either 
to its officers while in the performance of their duties or to others 



Fla. Ill, 12 So. 368, 19 L. R. A. 
196. But a city will be liable for a 
resulting injury if in fact the thing 
abated is not a nuisance. Dunbar 
v. City Council of Augusta, 90 Ga. 
390, 17 S. E. 907; City of Savannah 
v. Mulligan, 95 Ga. 323, 22 S. E. 
621; Miller v. City of Valparaiso, 
10 Ind. App. 22, 37 N. E. 418, Baum- 
gartner v. Hasty, 100 Ind. 575. A 
city may destroy a wooden build- 
ing erected within prohibited fire 
districts. Wood v. City of Hinton, 
47 W. Va. 645, 35 S. E. 824. See, 
also, 122 et seq., ante. But see 
Cavanagh v. City of Boston, 139 
Mass. 426. 

"City of Orlando v. Pragg, 31 
Fla. Ill, 12 So. 368, 19 L. R. A. 196; 
Wyatt v. City of Rome, 105 Ga. 312, 
42 L. R. A. 180; Lahner v. Village 
of Williams, 112 Iowa, 428, 84 N. 
W. 507; Corning v. City of Sagi- 
naw, 116 Mich. 74, 40 L. R. A. 526; 
Doolittle v. Town of Walpole, 67 
N. H. 554, 38 Atl. 19. The failure 
of town selectmen to provide a suit- 
able lockup creates no liability on 
the part of the town. Doty v. Vil- 
lage of Port Jervis, 23 Misc. 313, 
52 N. Y. Supp. 57. The appoint- 
ment of one as a police officer who 
is negligently inefficient and dan- 
gerous creates no liability on the 
part of the municipality through 



the wrongful killing of a person 
by him. 

Mcllhenney v. City of Wilming- 
ton, 127 N. C. 146, 37 S. E. 187, 50 
L. R. A. 470; Love v. City of Ral- 
eigh, 116 N. C. 296, 28 L. R. A. 192; 
Shields v. Town of Durham, 118 N. 
C. 450, 36 L. R. A. 293; O'Rourke 
v. City of Sioux Falls, 4 S. D. 47, 
19 L. R. A. 789; Aitken v. Village 
of Wells River, 70 Vt. 308; Bartlett 
v. Town of Clarksburg, 45 W. Va. 
393, 31 S. E. 918, 43 L. R. A. 295; 
Brown's Adm'r v. Town of Guyan- 
dotte, 34 W. Va. 299, 12 S. E. 707, 
11 L. R. A. 121; Gibson v. City of 
Huntington, 38 W. Va. 177, 22 L. R. 
A. 561; Little v. City of Madison, 
49 Wis. 605; Robinson v. Rohr, 73 
Wis. 436, 40 N. W. 668, 2 L. R. A. 
366. But see Twist v. City of 
Rochester, 165 N. Y. 619, 59 N. E. 
1131; Town of Johnson City v. 
Wolfe, 10o Tenn. 227, 52 S. W. 991. 
A municipal corporation may be 
liable for a personal tort commit- 
ted by a policeman. See note on 
municipal liability for imprison- 
ment under invalid ordinance, 47 L. 
R. A. 593. See, also, notes on lia- 
bility of municipal corporations for 
false imprisonment and unlawful 
arrest, 44 L. R. A. 795, 36 L. R. A. 
293. 



2244 



LIABILITY FOR NEGLIGENCE. 



9G6 



who may be injured by them, 74 nor for the defective condition of 
jails, court houses, prisons or buildings used in the administra- 
tion of justice, 75 or their appliances. 76 



7* Kansas City v. Lemen (C. C. 
A.) 57 Fed. 905; Masters v. Village 
of Bowling Green, 101 Fed. 101; 
Nisbet v. City of Atlanta, 97 Ga. 
650, 25 S. E. 173. No liability arises 
for the death of a convict occa- 
sioned by the negligence of the 
public officers in whose charge he 
is placed. Cook v. City of Macon, 
54 Ga. 468. Illegal arrest. Mc- 
Elroy v. City of Albany, 65 Ga. 387; 
Attaway v. City of Cartersville, 68 
Ga. 740; Moss v. City Council of 
Augusta, 93 Ga. 797, 20 S. E. 653; 
Bartlett v. City of Columbus, 101 
Ga. 300, 28 S. E. 599, 44 L. R. A. 
795; Bailey v. Fulton County, 111 
Ga. 313, 36 S. E. 596; Gray v. City 
of Griffin, 111 Ga. 361, 36 S. E. 792, 
51 L. R. A. 131; City of Chicago v. 
Williams, 182 111. 135, 55 N. E. 123, 
reversing 80 111. App. 33. Illegal 
arrest. Craig v. City of Charles- 
ton, 78 111. App. 312, affirmed 180 
111. 154, 54 N. E. 184; Robertson v. 
City of Marion, 97 111. App. 332; 
Town of Laurel v. Blue, 1 Ind. App. 
128, 27 N. E. 301; Vaughtman v. 
Town of Waterloo, 14 Ind. App. 
649, 43 N. E. 476; Peters v. City of 
Lindsborg, 40 Kan. 654, 20 Pac. 
490; City of Caldwell v. Prunell, 
57 Kan. 511, 46 Pac. 949. A mu- 
nicipality is not liable for acts of 
its officials in enforcing an invalid 
ordinance. Pollock's Adm'r v. 
City of Louisville, 76 Ky. (13 
Bush) 321; Bean v. City of Mid- 
dlesborough, 22 Ky. L. R. 415, 57 
S. W. 478; Spalding v. City of Jef- 
ferson, 27 La. Ann. 159; Cobb v. 
City of Portland, 55 Me. 381; Butt- 
rick v. City of Lowell, 83 Mass. (1 



Allen) 172; Gullikson v. McDonald, 
62 Minn. 278, 64 N. W. 812; Schuss- 
ler v. Hennepin County Com'rs, 67 
Minn. 412, 39 L. R. A. 75; Worley 
v. Town of Columbia, 88 Mo. 106; 
Twist v. City of Rochester, 37 App, 
Div. 307, 55 N. Y. Supp. 850. City 
liable for defective erection of wire. 
Woodhull v. City of New York, 150 
N. Y. 450, 44 N. E. 1038; Kelley v, 
Cook, 21 R. I. 29, 41 Atl. 571; 
Crause v. Harris County, 18 Tex. 
Civ. App. 375, 44 S. W. 616; City of 
Corsicana v. White, 57 Tex. 382. 
See, also, notes 15 L. R. A. 783. 
But see Oklahoma City v. Hill, 
Okl. 521, 46 Pac. 568; Parks v. City 
Council of Greenville, 44 S. C. 168 r 
21 S. E. 540. 

75 Gray v. City of Griffin, 111 Ga. 
361, 36 S. E. 792, 51 L. R. A. 131; 
Blake v. City of Pontiac, 49 111. 
App. 543; Kite v. Whitley County, 
91 Ky. 168, 11 L. R. A. 122; Web- 
ster v. Hillsdale County, 99 Mich. 
259, 58 N. W. 317; Snider v. City 
of St. Paul, 51 Minn. 466, 18 L. R. 
A. 151; Ulrich v. City of St. Louis, 
112 Mo. 138, 20 S. W. 466. No lia- 
bility for injuries received while 
in workhouse. Eddy v. Village of 
Ellicottville, 35 App. Div. 256, 54 
N. Y. Supp. 800; Moody v. State's 
Prison, 128 N. C. 112, 38 S. E. 1.11, 
53 L. R. A. 855; Coley v. City of 
Statesville, 121 N. C. 301, 28 S. E. 
482. It is the duty, however, of a 
city to afford reasonable comfort 
and protection from suffering and 
injuries to health and to exercise 
ordinary care in procuring neces- 
saries for prisoners. Brown's 
Adm'r v. Town of Guyandotte, 34 



967 



LIABILITY FOR NEGLIGENCE. 



2245 



967. The public health and safet; 

It is also one of the duties resting upon organized government 
to properly protect the health of those who may reside within its 
jurisdiction and the performance of its duty in this respect or the 
carrying out of sanitary regulations or the lack of such action 
can give rise to no cause of action on the part of those who may 
be injured thereby. 77 Neither is a municipality liable to an in- 
dividual for its breach of duty to the public to abate a nuisance, 78 



W. Va. 299, 12 S. E. 707, 11 L. R. A. 
121. But see Carrington v. City of 
St. Louis, 89 Mo. 208; Shields v. 
Town of Durham, 118 N. C. 450, 24 
S. E. 794, 36 L. R. A. 293. 

TO Hart v. Union City, 107 Tenn. 
294, 64 S. W. 6. 

">' Sherbourne v. Yuba County, 21 
Cal. 113. No liability for unskill- 
ful treatment of an indigent sick 
person in a county hospital. Love 
v. City of Atlanta, 95 Ga. 129, 22 
S. E. 29; Williams v. City of In- 
dianapolis, 26 Ind. App. 628, 60 N. 
E. 367. No liability to patient at 
city hospital injured by alleged un- 
skillful treatment of the physician 
employed by the city. Summers 
v. Davies County Com'rs, 103 Ind. 
262; Ogg v. City of Lansing, 35 
Iowa, 495; City of New Orleans v. 
Kerr, 50 La. Ann. 413; Brown v. 
Inhabitants of Vinalhaven, 65 Me. 
402; Barbour v. City of Ellsworth, 
7 Me. 294; Butz v. Cavanaugh, 137 
Mo. 503, 38 S. W. 1104. 

Davidson v. City of New York, 24 
Misc. 560, 54 N. Y. Supp. 51; Mis- 
sano v. City of New York, 160 N. Y. 
123, 54 N. E. 744. In the latter case, 
it is held that a city is liable for in- 
juries caused by the negligence of 
the driver of an ash cart employed 
in the street cleaning department, 
for it is then acting in relation to 
the care of the streets in the dis- 



charge of a special power granted to 
it by the legislature in the exercise 
of which it is a legal individual as 
distinguished from its govern- 
mental functions where it acts as 
a sovereign. Levin v. City of Bur- 
lington, 129 N. C. 184, 39 S. E. 822, 
55 L. R. A. 396; O'Rourke v. City 
of Sioux Falls, 4 S. D. 47, 19 L. R. 
A. 789; Conelly v. City of Nash- 
ville, 100 Tenn. 262, 46 S. W. 565. 
Sprinkling streets is a govern- 
mental duty for the promotion of 
the general health and a municipal 
corporation is not liable for the 
negligent acts of a driver of a 
sprinkling cart in its service. Bates 
v. City of Houston, 14 Tex. Civ. 
App. 287, 37 S. W. 383; City of San 
Antonio v. White (Tex. Civ. App.) 
57 S. W. 858; White v. City of San 
Antonio, 94 Tex. 313, 60 S. W. 426, 
affirming (Tex. Civ. App.) 57 S. W. 
858; White v. Town of Marshfleld, 
48 Vt. 20; Kuehn v. City of Mil- 
waukee, 92 Wis. 263, 65 N. W. 1030; 
Kempster v. City of Milwaukee, 
103 Wis. 421. But see Bristol Door 
& Lumber Co. v. City of Bristol, 97 
Va. 304, 33 S. E. 588. 

78 Davis v. City of Montgomery, 
51 Ala. 139; Morse v. Borough of 
Fair Haven East, 48 Conn. 220; 
City of Wilmington v. Vandegrift, 
1 Marv. (Del.) 5, 29 Atl. 1047. Coast- 
ing on public streets. Arms v. City 



2M6 



LIABILITY FOR NEGLIGENCE. 



967 



but it may be subject to indictment if it has the power and fails 
to exercise it. 70 A city has no right, however, to create a nuisance 
in the exercise of its lawful power. 80 Acts may, however, be re- 
lieved of the character of nuisances if authorized by law. 81 



of Knoxville, 32 111. App. 604. 
Firing cannon. James' Adm'r v. 
Trustees of Harrodsburg, 85 Ky. 
191, 3 S. W. 135; Howe v. City of 
New Orleans, 12 La. Ann. 481; 
Whitfield v. Town of Carrollton, 50 
Mo. App. 98. Standpipe. Arm- 
strong v. City of Brunswick, 79 Mo. 
319; Kiley v. Kansas City, 87 Mo. 
103. Unsafe building. Arthur v. 
City of Cohoes, 56 Hun, 36, 9 N. Y. 
Supp. 160; Toomey v. City of Al- 
bany, 60 Hun, 580, 14 N. Y. Supp. 
572. Coasting. Leonard v. City of 
Hornellsville, 41 App. Div. 106, 58 
N. Y. Supp. 266; Cain v. City of 
Syracuse, 95 N. Y. 83. Dangerous 
walk. Robinson v. Village of Green- 
ville, 42 Ohio St. 625, 51 Am. Rep. 
857; Borough of Norristown v. Fitz- 
patrick, 94 Pa. 121. Cannon. Mc- 
Crowell v. Town of Bristol, 73 
Tenn. (5 Lea) 685; City of Chat- 
tanooga v. Reid, 103 Tenn. 616, 
53 S. W. 937; State v. Town of 
Burlington, 36 Vt. 521; Schultz v. 
City of Milwaukee, 49 Wis. 254; 
Kent v. City of Cheyenne, 2 Wyo. 
6. See, also, notes 16 L. R. A. 395; 
43 L. R. A. 295. But see Town of 
Rushvillle v. Adams, 107 Ind. 475; 
Bannon v. Murphy, 18 Ky. L. R. 
989, 38 S. W. 889; Clayton v. City 
of Henderson, 20 Ky. L. R. 87, 44 
S. W. 667; Cochrane v. City of 
Frostburg, 81 Md. 54, 31 Atl. 703, 
27 L. R. A. 728; Fritsch v. City of 
Allegheny, 91 Pa. 226. City's negli- 
gence question for jury. 

79 People v. Corporation of Al- 
bany, 11 Wend. (N. Y.) 539; State 



v. Shelbyville Corp., 36 Tenn. (4 
Sneed) 176. 

so Nolan v. City of New Britain, 
69 Conn. 668; City of Bloomington 
v. Costello, 65 111. App. 407; City of 
New Albany v. Lines, 21 Ind. App. 
380; City of New Albany v. Slider, 
2 Ind. App. 392, 52 N. E. 626; Bos- 
ton Rolling Mills v. City of Cam- 
bridge, 117 Mass. 396; Miles v. City 
of Worcester, 154 Mass. 511, 28 N. 
E. 676, 13 L. R. A. 841; Detroit 
Water Com'rs v. City of Detroit, 
117 Mich. 458, 76 N. W. 70; Lane v. 
City of Concord, 70 N. H. 485, 49 
Atl. 687; Hart v. Chosen Freehold- 
ers of Union County, 57 N. J. Law, 
90; Bolton v. City of New Rochelle, 
84 Hun, 281, 32 N. Y. Supp. 442; 
Sullivan v. McManus, 19 App. Div. 
167, 45 N. Y. Supp. 1079; Lefrois 
v. Monroe County, 24 App. Div. 421, 
48 N. Y. Supp. 519; City of Chatta- 
nooga v. Dowling, 101 Tenn. 342; 
Lindsay v. City of Sherman (Tex. 
Civ. App.) 36 S. W. 1019; Parsons v. 
City of Ft. Worth, 26 Tex. Civ. App. 
273, 63 S. W. 889; Willet v. Village 
of St. Albans, 69 Vt. 330; Town of 
Suffolk v. Parker, 79 Va. 660. But see 
Long v. City of Minneapolis, 61 
Minn. 46; Wehn v. Gage County 
Com'rs, 5 Neb. 494. County not lia- 
ble for damages sustained through 
erection of county jail even though 
it is a nuisance. City of Hillsboro 
v. Ivey, 1 Tex. Civ. App. 653, 20 S. 
W. 1012; Ostrom v. City of San 
Antonio, 94 Tex. 523, 62 S. W. 909; 
City of Ft. Worth v. Crawford, 64 
Tex. 202, 53 Am. Rep. 753. City 



; 968-970 LIABILITY FOR NEGLIGENCE. 2247 

968. Public education. 

In modern days the proper education of the community is rec- 
ognized as a governmental duty and no liability can arise in re- 
spect to the action or condition of any agency which the state 
may adopt as a means for the accomplishment of this result. This 
rule applies as in the case of all the subjects noted above to vari- 
ous officials, 82 buildings or agencies employed, 83 used or acts done 
in connection with the subject of this section. 

969. Charities and corrections. 

The furnishing of aid to indigent persons and the care of those 
morally, mentally or physically defective, are also duties which 
rest upon the state and which can be classed as governmental in 
their character. 84 In the carrying out of this function, an im- 
munity is granted in respect to all acts or agencies. 85 

970. Failure to pass or enforce ordinances. 

The passage or enforcement of laws or ordinances has been re- 
garded as a governmental duty, a failure to properly perform 

not liable to an individual for sick- 37; Wixon v. City of Newport, 13 

ness caused by deposit of its gar- R. I. 454; Folk v. City of Milwau- 

bage in one place. kee, 108 Wis. 359, 84 N. W. 420. 

si Hill v. City of New York, 139 Shearman & R. Neg. 267. "Boards 

N. Y. 495, 34 N. E. 1090. of education on which is imposed 

82 Freel v. School City of Craw- by the state the duty of providing 
fordsville, 142 Ind. 27, 41 N. E. 312, and keeping in repair public school 
37 L. R. A. 301. buildings exercise a purely public 

83 Kinnare v. City of Chicago, 171 function and agency for the public 
111. 332, 49 N. E. 536; Bigelow v. good for which they receive no pri- 
Inhabitants of Randolph, 80 Mass. vate or corporate benefit; and they 
(14 Gray) 541; Howard v. City of are, therefore, not liable to an in- 
Worcester, 153 Mass. 426, 27 N. E. dividual for the negligence of their 
11, 12 L. R. A. 160; Hill v. City of servants in the business of such 
Boston, 122 Mass. 344; Bank v. agency." 

Brainerd School Dist, 49 Minn. 106, * Moulton v. Inhabitants of 

51 N. W. 814; Eastman v. Meredith, Scarborough, 71 Me. 267. Where a 

36 N. H. 284; Reynolds v. Board of town was held liable for an injury 

Education of Little Falls, 33 App. inflicted on a citizen by a ram 

Div. 88, 53 N. Y. Supp. 75; Brown owned by the town and kept on its 

v. City of New York, 32 Misc. 571, poor farm. Town of Chelsea v. 

66 N. Y. Supp. 382; Finch v. Board Town of Washington, 48 Vt. 610. 

of Education of Toledo, 30 Ohio St. ss Hughes v. Monroe County, 79 



2248 



LIABILITY FOR NEGLIGENCE. 



970 



which, it has been held, can give rise to no cause of action. The 
statement as above given does not accurately state the law upon 
this question. Liability in a particular instance depends not upon 
the failure to take action but upon the character of the duty 
which is to be performed by the proposed action. 86 If it is a gov- 
ernmental one, there can clearly be no liability merely in respect to 
the failure to pass or enforce an ordinance having for its purpose 
the carrying out of that duty. 87 If, on the other hand, action in 



Hun, 120, 29 N. Y. Supp. 495, 147 
N. Y. 49, 41 N. E. 407, 39 L. R. A. 
33. 

seFifield v. Common Council of 
Phoenix, 4 Ariz. 283, 36 Pac. 916. 
Display of fireworks. Collins v. 
City of Savannah, 77 Ga. 745; Cole 
v. City of Newburyport, 129 Mass. 
594; Sexton v. City of St. Joseph, 

60 Mo. 153; Love v. City of Raleigh, 
116 N. C. 296, 21 S. E. 503, 28 L. 
R. A. 192. Permitting display of 
fireworks. 

ST Hewison v. City of New 
Haven, 37 Conn. 475; Wyatt v. 
City of Rome, 105 Ga. 312, 31 S. E. 
188, 42 L. R. A. 180; Rivers v. City 
of Augusta, 65 Ga. 376. Failure to 
enforce stock ordinance. Tarbut- 
ton v. Town of Tennille, 110 Ga. 
90, 35 S. E. 282. No liability for 
failure to pass ordinance prohibit- 
ing the riding of bicycles on side- 
walk. Barrows v. City of Syca- 
more, 150 111. 588, 37 N. E. 1096, 25 
L. R. A. 535; Kinnare v. City of 
Chicago, 171 111. 332, 49 N. E. 536; 
Wheeler v. City of Plymouth, 116 
Ind. 158, 18 N. E. 532; Kistner v. 
City of Indianapolis, 100 Ind. 210. 
Failure to require railroad com- 
pany to provide suitable safe 
guards. Ball v. Town of Woodbine, 

61 Iowa, 83. Discharge of fire- 
works. Easterly v. Town of Irwin, 
99 Iowa, 694, 68 N. W. 919; Taylor 

City of Cumberland, 64 Md. 68; 



Scanlon v. Wedger, 156 Mass. 462, 

31 N. E. 642, 16 L. R. A. 395. Dis- 
play of fireworks. Tindley v. City 
of Salem, 137 Mass. 171. Fire- 
works. Hines v. City of Charlotte, 
72 Mich. 278, 40 N. W. 333, 1 L. R. 
A. 844. Construction of wooden 
block in violation of ordinance. 
Stevens v. City of Muskegon, 111 
Mich. 72, 36 L. R. A. 777; Schatt- 
ner v. Kansas City, 53 Mo. 162; 
Moran v. Pullman Palace Car Co., 
134 Mo. 641, 36 S. W. 659, 33 L. R. 
A. 755; Harman v. City of St. 
Louis, 137 Mo. 494, 3b' S. W. 1102. 
Failure to prevent erection of 
wooden building in violation of or- 
dinance. Rosenbaum v. City of 
Newbern, 118 N. C. 83, 24 S. E. 1, 

32 L. R. A. 123; Hill v. Aldermen of 
Charlotte, 72 N. C. 55; Frederick 
v. City of Columbus, 58 Ohio St. 
538; Smith v. Borough of Selins- 
grove, 199 Pa. 615, 49 Atl. 213; 
Heidenwag v. City of Philadelphia, 
168 Pa. 72, 31 Atl. 1063; O'Rourke 
v % City of Sioux Falls, 4 S. D. 47, 
19 L. R. A. 789; Jones v. City of 
Williamsburg, 97 Va: 722, 34 S. E. 
883. But see Cochrane v. City of 
Frostburg, 81 Md. 54, 31 Atl. 703, 27 
L. R. A. 728. Domestic animals 
when running at large in such num- 
bers as to be a serious discomfort 
and injury to the town are a nui- 
sance which it is the duty of the 
municipality to abate by the pass- 



970 



LIABILITY FOR NEGLIGENCE. 



2249 



this respect applies to a duty not governmental in its character 
but one which arises because of the character of the corporation 
as a municipal corporation proper in its local, proprietary or pri- 
vate sense, then, clearly, a liability may arise because of a failure 
to take legislative action. 88 It is not the failure to take action 
which creates or prevents a liability but the character of the duty 
involved in the action. 

Liability for enforcement of ordinance. Public corporations 
are not liable either in the use of agencies or for the acts of their 
officers and employes in enforcing ordinances valid or invalid 
passed for the carrying out of some governmental or public duty 
or power, 89 and the contrary rule of course will apply where the 
ordinance relates to local proprietary or private powers or duties 
of a corporation. 



age of a proper ordinance. City of 
Hagerstown v. Koltz, 93 Md. 437, 
49 Atl. 836, 54 L. R. A. 940. Fail- 
ure to enforce speed ordinance. 
Saxton v. City of St. Joseph, 60 
Mo. 153. See, also, 972, post. A 
liability may, however, be imposed 
by statute. See City of Henderson 
v. Clayton, 22 Ky. L. R. 283, 57 S. 
W. 1. 

ss Speir v. City of Brooklyn, 139 
N. Y. 6, 34 N. E. 727, 21 L. R. A. 
641. Display of fireworks. 

ssTrescott v. City of Waterloo, 
26 Fed. 592. A person who has 
served out in prison a fine imposed 
for the violation of an unconstitu- 
tional municipal ordinance has no 
right of action against the city for 
false imprisonment. Masters v. 
Village of Bowling Green, 101 Fed. 
101; Town of Odell v. Schroeder, 
58 111. 353; Culver v. City of 
Streator, 130 111. 238, 22 N. E. 810, 
6 L. R. A. 270; Easterly v. Incor- 
porated Town of Irwin, 99 Iowa, 
694, 68 N. W. 919; Taylor v. City of 
Owensboro, 98 Ky. 271, 32 S. W. 



948; Fox v. City of Richmond, 19 
Ky. L. R. 326, 40 S. W. 251; Mc- 
Graw v. Town of Marion, 98 Ky. 
673, 34 S. W. 18, 47 L. R. A. 593. 
No municipal liability for arrest 
and imprisonment under invalid or- 
dinances. City of New Orleans v. 
Kerr, 50 La. Ann. 413, 23 So. 384; 
Worley v. Town of Columbia, 88 
Mo. 106; Fox v. Northern Liber- 
ties, 3 Watts & S. (Pa.) 103; Elliott 
v. City of Philadelphia, 75 Pa. 347, 
Id., 7 Phila. (Pa.) 128; Givens v. 
City of Paris, 5 Tex. Civ. App. 705, 
24 S. W. 974; McFadin v. City of 
San Antonio, 22 Tex. Civ. App. 140, 
54 S. W. 48; City of Corsicana v. 
White, 57 Tex. 382; City of Gal- 
veston v. Posnainsky, 62 Tex. 130. 
But see McGraw v. Town of Mar- 
ion, 98 Ky. 673, 34 S. W. 18, 47 L. R. 
A. 593. See, also, notes on liability 
of municipal corporations for false 
imprisonment and unlawful arrest 
and liability for arrest and impris- 
onment under invalid ordinance, in 
44 L. R. A. 795, and 47 L. R. A. 593. 



2250 LIABILITY FOR NEGLIGENCE. 971 

971. Ultra vires acts. 

The character of a public corporation as a governmental agent 
of exceedingly restricted and limited powers should be constantly 
had in mind. An ultra vires act is one in excess of the lawful 
powers possessed by an artificial person. Even in respect to pri- 
vate corporations a liability for an ultra vires act is in many cases 
denied. The strict rule as to the consequences of an ultra vires 
act should be and is applied to a far greater extent in the case of 
a public corporation. 90 They are governmental agents created by 
the sovereign and are its agencies or auxiliaries to carry out gov- 
ernmental measures and functions. Their property is acquired 
for public uses and through an exercise of the power of taxation. 
The great weight of authority and reason sustain the rule of no 
liability in the case of a public corporation whether municipal or 
quasi in respect to the consequences of an ultra vires act. 91 A re- 
cent case in the Supreme Court of the United States 92 has, how- 
ever, made a distinction between ultra vires acts based upon a 
contract and tortious ultra vires acts, holding in the latter case 
to a liability. In the decision in that case written by Mr. Justice 
Miller, it was said : ' ' The truth is, that, with the great increase in 
corporations in very recent times, and in their extension to nearly 
all the business transactions of life, it has been found necessary 
to hold them responsible for acts not strictly within their cor- 
porate powers, but done in their corporate name, and by corpo- 
ration officers who were competent to exercise all the corporate 
powers. When such acts are not founded on contract, but are 

o See 108 et seq., ante. phia, 196 Pa. 302, 46 Atl. 448; State 

01 Lloyd v. City of Columbus, 90 v. McNay, 90 Wis. 104; Becker v. 

Ga. 20, 15 S. E. 818; Hoggard v. City of La Crosse, 99 Wis. 414, 75 

City of Monroe, 51 La. Ann. 683, N. W. 84, 40 L. R. A. 829. But see 

25 So. 349, 44 L. R. A. 477; Horn v. Stanley v. City of Davenport, 54 

City of Baltimore, 30 Md. 218 ; God- Iowa, 463. Liable for damages 

dard v. Inhabitants of Harpswell, caused by unauthorized use of 

84 Me. 499, 24 Atl. 958; Kreger v. steam motor on public street; Alli- 

Bismarck Tp., 59 Minn. 3; Boye v. son v. City of Richmond, 51 Mo. 

City of Albert Lea, 74 Minn. 230, App. 133; Hollman v. City of 

76 N. W. 1131; Beatty v. City of St. Platteville, 101 Wis. 94, 76 N. W. 

Joseph, 57 Mo. App. 251; Hunt v. 1119. 

City of Boonville, 65 Mo. 620; Rives 92 Salt Lake City v. Hollister, 118 

v. City of Columbia, 80 Mo. App. TL S. 256. 
173; Betham v. City of Philadel- 



972 LIABILITY FOR NEGLIGENCE. 2251 

arbitrary exercises of power in the nature of torts, or are quasi 
criminal, the corporation may be held to a pecuniary, responsibil- 
ity for them to the party injured. * * * It is said that Salt 
Lake city, being a municipal corporation, is not liable for tortious 
actions of its officers. While it may be true that the rule we have 
been discussing may require a more careful scrutiny in its appli- 
cation to this class of corporations than to corporations for pe- 
cuniary profit, we do not agree that they are wholly exempt from 
liability for wrongful acts done, with all the evidences of their 
being acts of the corporation, to the injury of others, or in evasion- 
of legal obligations to the State or the public. * * * It re- 
mains to be observed, that the question of the liability of corpo- 
rations on contracts which the law does not authorize them to 
make, and which are wholly beyond the scope of their powers, is 
governed by a different principle. Here the party dealing with 
the corporation is under no obligation to enter into the contract. 
No force, or restraint, or fraud is practiced on him. The powers 
of these corporations are matters of public law open to his ex- 
amination, and he may and must judge for himself as to the pow- 
ers of the corporation to bind itself by the proposed agreement. 
It is to this class of cases that most of the authorities cited by 
appellants belong cases where corporations have been sued on 
contracts which they have successfully resisted because they were 
ultra vires. But, even in this class of cases, the courts have gone 
a long way to enable parties who had parted with property or 
money on the faith of such contracts, to obtain justice by recov- 
ery of the property or the money specifically, or as money had 
and received to plaintiff's use." 

972. Nature of duty. 

It was suggested in a preceding section 93 that the character of 
a duty, whether discretionary or ministerial, affected the ques- 
tion of liability of a public corporation for its negligent perform- 
ance. The duties or powers of public corporations have been 
classified as legislative or judicial in their character, therefore 
discretionary and imperative or ministerial. 94 The former, for 

03 See 951, ante. Turner, 80 111. 419; City of Chicago 

9*Jewett v. City of New Haven, v. Norton Milling Co., 97 111. App. 

38 Conn. 368; City of Chicago v. 651; Browning v. Owen County 



2252 



LIABILITY FOR NEGLIGENCE. 



072 



their performance being left to the judgment, the discretion of 
the particular officer or body in whom is vested the power of per- 
formance or exercise. To impose a liability for a failure to per- 
form these duties or in respect to the manner of their performance 
would clearly deprive them of their discretionary character and 
impose their proper performance upon the courts. 95 In case of 
the latter or ministerial and imperative duties, the performance 
of the duty or the exercise of the power is not left to the judgment 
or the discretion of the public authorities but is directly imposed 
or prescribed to be performed in a manner specified. For a fail- 
ure to perform duties of this character or for their negligent per- 
formance the courts almost universally hold the existence of a 
liability to the one injured. 96 



Com'rs, 44 Ind. 11; McMahon v. 
City of Dubuque, 107 Iowa, 62; 
Brunswick Gas Light Co. v. Bruns- 
wick Village Corp., 92 Me. 493; 
Cavanagh v. City of Boston, 139 
Mass. 426; Gray v. City of Detroit, 
113 Mich. 657; Thompson v. City 
of Boonville, 61 Mo. 282; Rowland 
v. City of Gallatin, 75 Mo. 134; 
Boyland v. City of New York, 3 N. 
Y. Super. Ct. (1 Sandf.) 27. Un- 
authorized discharge of cannon. 
City of Hamilton v. Ashbrook, 62 
Ohio St. 511. The construction of 
levees for protection of lowlands 
is a discretionary duty. Pierce v. 
Tripp, 13 R. I. 181; City of Nash- 
ville v. Sutherland, 92 Tenn. 335, 
21 S. W. 674, 19 L. R. A. 619. A 
guaranty in respect to the suffici- 
ency of a sewer is ultra vires and 
void if it makes a city an insurer 
of property against injury from 
such a cause where it is only liable 
for lack of reasonable care and 
skill in the construction of the 
sewer. Harrison v. City of Colum- 
bus, 44 Tex. 418; Royce v. Salt Lake 
City, 15 Utah, 401, 49 Pac. 290. 

95 Weightman v. Washington 
Corp., 1 Black. (U. S.) 39; Irving 
v. City of Highlands, 11 Colo. App. 



363, 53 Pac. 234; Judge v. City of 
Meriden, 38 Conn. 90; Duke v. City 
of Rome, 20 Ga. 635; Harper v. 
Town of Jonesboro, 94 Ga. 801, 22 
S. E. 139; Gray v. City of Griffin, 
111 Ga. 361, 36 S. E. 792, 51 L. R. 
A. 131; Linck v. City of Litchfield, 
31 111. App. 118; Backer v. West 
Chicago Park Com'rs, 66 111. App. 
507; Brinkmeyer v. City of Evans- 
ville, 29 Ind. 187; Anne Arundel 
County Com'rs v. Duckett, 20 ild. 
468; McGinnis v. Inhabitants of 
Medway, 176 Mass. 67, 57 N. E. 
210; Larkin v. Saginaw County, 11 
Mich. 88. The determination that 
a bridge must be built is a legis- 
lative or discretionary act. Car- 
roll v. City of St. Louis, 4 Mo. App. 
191; Schattner v. Kansas City, 
53 Mo. 162; In re Opening of Al- 
bany St., 6 Abb. Pr. (N. Y.) 273; 
Kavanagh v. City of Brooklyn, 38 
Barb. (N. Y.) 232; Tate v. City of 
Greensboro, 114 N. C. 392, 19 S. E. 
767, 24 L. R. A. 671; Town of Nor- 
man v. Ince, 8 Okl. 412, 58 Pac. 
632; State v. Ward, 56 Tenn. (9 
Heisk.) 100; City of Richmond v. 
Long's Adm'r, 17 Grat. (Va.) 375. 
so Jones v. City of New Haven, 
34 Conn. 1; Danbury & N. R. Co. v. 



973 



LIABILITY FOR NEGLIGENCE. 



2253: 



973. Respondeat superior. 

To render a public corporation liable for negligence, not only 
must the character of the duty negligently performed be estab- 
lished as one which gives rise to a cause of action together with 
the other essentials of actionable negligence, as stated in the pre- 
ceding sections, but also since a public corporation as an artificial 
person acts through its officers and agents, must it clearly appear 
that the act complained of was committed by some one expressly 
authorized to do the act by the public authorities 9T or that it was 
done bona fide in pursuance of a general authority to act on the 
subject to which the action relates. 98 If these conditions appear 
a liability will follow. In this respect the rule of agency in re- 
spect to private persons will be recalled, namely, that the principal 
is bound by all acts coming within the apparent scope of the agent 's 
power and authority. This principle does not apply to agents 
of a public corporation. It, as a principal, is bound only for the 
acts of its agents coming within the precise scope of their express 



Town of Norwalk, 37 Conn. 109; 
City Council of Augusta v. Owens, 
111 Ga. 464, 36 S. E. 830; City of 
Richmond v. Long's Adm'rs, 17 
Grat. (Va.) 375; Hollman v. City 
of Platteville, 101 Wis. 94, 76 N. W. 
1119. 

97 Herzo v City of San Francisco, 
33 Cal. 134; City of East St. Louis 
v. Klug, 3 111. App. 90; Lisso v. Red 
River Parish, 29 La. Ann. 590; God- 
dard v. Inhabitants of Harpsweli, 
84 Me. 499, 24 Atl. 958; Gilpatrick 
v. City of Biddeford, 86 Me. 534, 30 
Atl. 99; Kreger v. Bismarck Tp., 
59 Minn. 3, 60 N. W. 675; Reynolds 
v. Board of Education of Union 
Free School Dist., 33 App. Div. 88, 
53 N. Y. Supp. 75; City of Galves- 
ton v. Brown, 28 Tex. Civ. App. 
274, 67 S. W. 156. 

98 City Council of Sheffield v. 
Harris, 101 Ala. 564, 14 So. 357; 
City of Mobile v. Bienville Water 
Supply Co., 130 Ala. 379, 30 So. 



445; Sievers v. City & County of 
San Francisco, 115 Cal. 648, 47 Pac. 
687; Town of Colorado City v. 
Liafe, 28 Colo. 468, 65 Pac. 630; 
Platt v. City of Waterbury, 72 
Conn. 531, 45 Atl. 154, 48 L. R. A. 
691; City of Chicago v. McGraw, 75 
111. 566; Wilde v. City of New Or- 
leans, 12 La. Ann. 15; Thayer v. 
City of Boston, 36 Mass. (19 Pick.) 
511; City of Detroit v. Corey, 9 
Mich. 165; Lee v. Village of Sandy 
Hill, 40 N. Y. 442; Meares v. Town 
of Wilmington, 31 N. C. (9 Ired.> 
73; Noble Tp. v. Aasen, 8 N. D. 77; 
76 N. W. 990; City of Dayton v. 
Pease, 4 Ohio St. 80; Caspary v. 
City of Portland, 19 Or. 496, 24 Pac. 
1036; City of Hillsboro v. Ivey, 1 
Tex. Civ. App. 653, 20 S. W. 1012; 
City of Ysleta v. Babbitt, 8 Tex. 
Civ. App. 432, 28 S. W. 702; Palmer 
v. Village of St. Albans, 60 Vt. 427, 
13 Atl. 569. 



-225i 



LIABILITY FOR NEGLIGENCE. 



973 



authority." A public corporation, when authorized to act, is 
equally with a private person obligated to employ competent 
agents for the work in which they are engaged. 100 An act within 
the scope of a public corporation though not presently authorized 
by it may be subsequently ratified and confirmed, and the usual 
rule will then apply in respect to the legal results of effects of 
that action, 101 but it must clearly appear that the act ratified was 
within the original power or proper duties of the corporation, or, 
stated in another way, the mere act of ratification cannot create 
a liability. 102 

(a) Nature of duty performed. The liability of a public corpora- 
tion for the acts of its agents will again depend upon the char- 
acter of the act in doing which they are emploj^ed. If this is gov- 
ernment, no liability can arise. 103 If, on the other hand, the 



9Roughton v. City of Atlanta, 
113 Ga. 948, 39 S. E. 316; Hough v. 
Hoodless, 35 111. 166; Campbell v. 
City of Clinton, 94 111. App. 43; 
Kansas City v. Brady, 52 Kan. 297, 
34 Pac. 884; Rounds v. City of Ban- 
gor, 46 Me. 541; Mitchell v. City of 
Rockland, 52 Me. 118; Woodcock 
v. City of Calais, 66 Me. 234; Mc- 
Cann v. City of Waltham, 163 Mass. 
344, 40 N. E. 20; McCarthy v. City 
of Boston, 135 Mass. 197; Prince v. 
City of Lynn, 149 Mass. 193, 21 N. 
E. 296; Rainey v. Hinds County, 79 
Miss. 238, 30 So. 636; Wabaska 
Elec. Co. v. City of Wymore, 60 
Neb. 199, 82 N. W. 626; Jersey City 
v. Kiernan, 50 N. J. Law, 246, 13 
Atl. 170. 

100 But see Taggart v. City of 
Fall River, 170 Mass. 325, 49 N. E. 
22. 

101 Coburn v. San Mateo County, 
75 Fed. 520; Schussler v. Hennepin 
County Com'rs, 67 Minn. 412, 70 
N. W. 6, 39 L. R. A. 75; Sherman 
v. City of Grenada, 51 Miss. 186; 
City of Omaha v. Croft, 60 Neb. 57, 
82 N. W. 120; Commercial Elec. 



Light & Power Co. v. City of Ta- 
coma, 20 Wash. 288, 55 Pac. 219. 

102 Caldwell v. City of Boone, 51 
Iowa, 687; Peters v. City of Linds- 
borg, 40 Kan. 654, 20 Pac. 490; 
Brunswick Gas Light Co. v. Bruns- 
wick Village Corp., 92 Me. 493, 43 
Atl. 104. 

103 Hart v. City of Bridgeport, 13 
Blatchf. 289, Fed. Cas. No. 6,149; 
Mead v. City of New Haven, 40 
Conn. 72; Kinnare v. City of Chi- 
cago, 171 111. 332, 49 N. E. 536; 
Hafford v. City of New Bedford, 82 
Mass. (16 Gray) 297; Dunbar v. 
City of Boston, 112 Mass. 75; Mc- 
Ginnis v. Inhabitants of Medway, 
176 Mass. 67, 57 N. E. 210; Bryant 
v. City of St. Paul, 33 Minn. 289; 
Gullikson v. McDonald, 62 Minn. 
278; Miller v. City of Minneapolis, 
75 Minn. 131; Murtaugh v. City of 
St. Louis, 44 Mo. 479; Tomlin v. 
Hildredth, 65 N. J. Law, 438, 47 
Atl. 649; Treadwell v. City of New 
York, 1 Daly (N. Y.) 123; Rosen- 
baum v. City of Newbern, 118 N. C. 
83, 32 L. R. A. 123; Shields v. Town 
of Durham, 118 N. C. 450, 36 L. R. 



973 



LIABILITY FOR NEGLIGENCE. 



2255 



cause of action arises from an act governmental in its nature, per- 
haps, but where there is a liability imposed by statute or con- 
tract, 104 or where, as in the case of municipal corporations proper, 
most frequently, the damage is the result of carrying out some 
one or more of its private, local or proprietary powers, 105 then 
the same rules of liability will apply as in respect to private per- 
sons or corporations. A liability will accrue in connection with 
the operation of a municipal water, 106 lighting or power plant, 107 



A. 293; Wheeler v. City of Cincin- 
nati, 19 Ohio St. 19; City of Vic- 
toria v. Jessel, 7 Tex. Civ. App. 
520, 27 S. W. 159; City of Rich- 
mond v. Long's Adm'rs, 17 Grat. 
(Va.) 375; Bartlett v. Town of 
Clarksburg, 45 W. Va. 393, 43 L. 
R. A. 295; Kuehn v. City of Mil- 
waukee, 92 Wis. 263; Kempster v. 
City of Milwaukee, 103 Wis. 421. 
See, also, Nisbet v. City of Atlanta, 
97 Ga. 650. 

104 City of Richmond v Smith, 82 
U. S. (15 Wall.) 429; City of Belle- 
ville v. Hoffman, 74 111. App. 503; 
State v. Montgomery County 
Com'rs, 26 Ind. 522; Lyman v. 
Town of Windsor, 24 Vt. 575. 

105 Barnes v. Dist. of Columbia, 
91 U. S. 540. The liability of a 
municipal corporation for the acts 
of its officials and agents is not 
dependent upon the manner of se- 
curing office or source of compen- 
sation. Coburn v. San Mateo 
County, 75 Fed. 520; Danbury & N. 
R. Co. v. Town of Norwalk, 37 
Conn. 109; Murtaugh v. City of St. 
Louis, 44 Mo. 479; Tomlin v. Hil- 
dreth, 65 N. J. Law, 438, 47 Atl. 
649; Howell v. City of Buffalo, 15 
N. Y. 512; McCombs v. Town Coun- 
cil of Akron, 15 Ohio, 474; De Voss 
v. City of Richmond, 18 Grat. (Va.) 
338; Mulcairns v. City of Janes- 
ville, 67 Wis. 24. 

108 City Council of Augusta v. 



Mackey, 113 Ga. 64, 38 S. E. 339; 
Phinizy v. City of Augusta, 47 Ga. 
260; City of Baltimore v. Merry- 
man, 86 Md. 584, 39 Atl. 98; Stod- 
dard v. Inhabitants of Winchester, 
157 Mass. 567, 32 N. E. 948; St. Ger- 
main v. City of Fall River, 177 Mass. 
550, 59 N. E. 447; Boston Belting Co. 
v. City of Boston, 149 Mass. 44, 20 N. 
E. -320; Lynch v. City of Spring- 
field, 174 Mass. 430, 54 N. -E. 871; 
Rhobidas v. City of Concord, 70 N. 
H. 90, 47 Atl. 82, 51 L. R. A. 381; 
City of New York v. Bailey, 2 Denio 
(N. Y.) 433; Tilford v. City of New 
York, 1 App. Div. 199, 37 N. Y. 
Supp. 185; Seeley v. City of Ams- 
terdam, 54 App. Div. 9, 66 N. Y. 
Supp. 221; Pettengill v. City of 
Yonkers, 116 N. Y. 558, 22 N. E. 
1095; Wilson v. City of Troy, 135 
N. Y. 96, 32 N. E. 44, 18 L. R. A. 
449. It is a question for the jury 
whether the workmen were guilty 
of negligence or at that time ser- 
vants of the city. Town of Nor- 
man v. Ince, 8 Okl. 412, 58 Pac. 
632; Smith v. City of Philadelphia, 
81 Pa. 38; Irving v. Borough of 
Media, 194 Pa. 648, 45 Atl. 482; 
Bragg v. City of Rutland, 70 Vt. 
606, 41 Atl. 578; Collensworth v. 
City of New Whatcom, 16 Wash. 
224, 47 Pac. 433. See, also, Gross 
v. City of Portsmouth, 68 N. H. 
266, 33 Atl. 256; Soule v. City of 
Passaic, 47 N. J. Eq. 28, 20 Atl. 



2256 



LIABILITY FOR NEGLIGENCE. 



97: 



in the construction or maintenance of a garbage or sewage sys- 
tem, 108 in the establishment and maintenance of streets, parks or 
boulevards, 109 or the carrying out of any other enterprise, private 
or quasi private in its nature. 110 



346; Jenney v. City of Brooklyn, 
120 N. Y. 164, 24 N. E. 274. See, 
also, 957, ante. 

107 Bullmaster v. City of St. Jo- 
seph, 70 Mo. App. 60; Boothe v. 
City of Fulton, 85 Mo. App. 16; 
Western Sav. Fund Soc. v. City ot 
Philadelphia, 31 Pa. 175. See, also, 
957, ante. 

108 Barney Dumping Boat Co. v. 
City of New York, 40 Fed. 50; City 
of Savannah v. Waldner, 49 Ga. 
316; Town of Thorntown v. Fugate, 
21 Ind. App. 537, 52 N. E. 763; 
Leeds v. City of Richmond, 102 Ind. 
372; Cabot v. Kingman, 166 Mass. 
403, 44 N. E. 344, 33 L. R. A. 45; 
Stock v. City of Boston, 149 Mass. 
410, 21 N. E. 871; Ostrander v. City 
of Lansing, 111 Mich. 693, 70 N. W. 
332; Webb v. Board of Health of 
Detroit, 116 Mich. 516; Fink v. City 
of St. Louis, 71 Mo. 52; Donohoe 
v. Kansas City, 136 Mo. 657, 38 S. 
W. 571. But see City of South 
Bend v. Turner, 156 Ind. 418, 60 N. 
E. 271, 54 L. R. A. 396; Condict v. 
Jersey City, 46 N. J. Law, 157; Mis- 
sano v. City of New York, 160 N. 
Y. 123, 54 N. E. 744. Rule applies 
to duty of cleaning streets. See, 
also, State v. Dickson, 124 N. C. 871; 
Ostrom v. City of San Antonio 
(Tex. Civ. App.) 60 S. W. 591. 
See 958 et seq., ante. 

io9Waldron v. City of Haverhill, 
143 Mass. 582, 10 N. E. 481; Norton 
v. City of New Bedford, 166 Mass. 
48, 43 N. E. 1034; Butman v. City of 
Newton, 179 Mass. 1, 60 N. E. 401; 
Deane v. Inhabitants of Randolph, 
132 Mass. 475; Peters v. Town of 



Fergus Falls, 35 Minn. 549; City of 
Omaha v. Croft, 60 Neb. 57, 82 N. 
W. 120; Mahon v. City of New 
York, 10 Misc. 664, 31 N. Y. Supp. 
676; Scott v. City of New York, 27 
App. Div. 240, 50 N. Y. Supp. 191; 
Johns v. City of Cincinnati, 45 
Ohio St. 278, 12 N. E. 801; Sprague 
v. Tripp, 13 R. I. 38. But see Jan- 
sen v. City of Waltham, 166 Mass. 
344, 44 N. E. 339; Taggart v. City 
of Fall River, 170 Mass. 325, 49 N. 
E. 622; Tate v. City of Greensboro, 
114 N. C. 392, 19 S. E. 767, 24 L. R. 
A. 671. See 957, ante. 

no Hooe v. Mayo* of Alexandria, 
1 Cranch, C. C. 98, Fed. Cas. No. 
6,667; City of Philadelphia v. Gav- 
agnin (C. C. A.) 62 Fed. 617, affirm- 
ing 59 Fed. 303. A city, which pur- 
suant to its charter powers en- 
gages in the business of towing 
vessels for profit, is liable for the 
negligence of its tugs so employed. 
McCord v. City of Pueblo, 5 Colo. 
App. 48, 36 Pac. 1109; Arline v. 
Laurens County, 77 Ga. 249, 2 S. E. 
833; City Council of Augusta v. 
Lombard, 99 Ga. 282, 25 S. E. 722; 
City Council of Augusta v. Owens, 
111 Ga. 464, 36 S. E. 830. Stone 
quarry. City of Savannah v. Cul- 
lens, 38 Ga. 344; City Council of 
Augusta v. Hudson, 88 Ga. 599, 15 
S. E. 678. A city is liable for de- 
fects in a bridge kept by it for 
profit. 

City of Pekin v. McMahon, 154 
111. 141, 39 N. E. 484, 27 L. R. A. 
206; City of Winfield v. Peeden, 8 
Kan. App. 671, 57 Pac. 131. Gravel 
bank. Fennimore v. City of New 



1974 



LIABILITY FOR NEGLIGENCE. 



2257 



(b) Quasi corporations. The strict rule of nonliability in re- 
ipect to public quasi corporations, as stated in sections 954 and 
)55, must not be forgotten and these bodies will not be held re- 
sponsible for those acts of their officers and agents which, when 
lone by an officer or agent of a municipal corporation proper, 
ivould create a liability. 111 

$ 974. Liability for acts of licensee. 

"Where a public corporation grants, under authority of law, a 
license, privilege or franchise for the use of its public ways to 



Orleans, 20 La. Ann. 124; Anne 
Arundel County Com'rs v. Duckett, 
20 Md. 468; Coughlan v. City of 
Cambridge, 166 Mass. 268; Collins 
v. Inhabitants of Greenfield, 172 
Mass. 78, 51 N. E. 454; Whitfield 
v. Town of Carrollton, 50 Mo. App. 
98; Bates v. Holbrook, 67 App. Div. 
25, 73 N. Y. Supp. 417, reversing 35 
Misc. 342, 71 N. Y. Supp. 1013. Con- 
struction of subway in New York 
City. Walker v. Wasco County 
(Or.) 19 Pac. 81, following Pruden 
v. Grant Co., 12 Or. 308, 7 Pac. 308; 
Wagner v. City of Portland, 40 Or. 
389, 60 Pac. 985, 67 Pac. 300; Bu- 
chanan v. Town of Barre, 66 Vt. 
129, 23 L. R. A. 488. But see Ma- 
honey v. City of Boston, 171 Mass. 
427, 50 N. E. 939. City of Boston 
not responsible for injuries re- 
ceived by workmen because of the 
aegligence of the foreman in 
Charge of the derrick where both 
;vere employed in the building of 
i subway. Ewen v. City of Phila- 
delphia, 194 Pa. 548, 45 Atl. 339. 
See 957, ante. 

111 Smith v. Carlton County 
Mom'rs, 46 Fed. 340; Scales v. Or- 
dinary of Chattahoochee County, 
II Ga. 225; McDonald v. Village of 
.ockport, 28 111. App. 157; Symonds 
.. Clay County Sup'rs, 71 111. 355; 
Abb. Corp. Vol. Ill la 



Cooney v. Town of Hartland, 95 
111. 516; Smith v. Allen County 
Com'rs, 131 Ind. 116, 30 N. E. 949; 
Schnurr v. Huntington County 
Com'rs, 22 Ind. App. 18S, 53 N. E. 
425; Rock Island Lumber & Mfg. 
Co. v. Elliott, 59 Kan. 42, 51 Pac. 
894. A board of education not lia- 
ble in absence of express statute 
to that effect. Anne Arundel Coun- 
ty Com'rs v. Duckett, 20 Md. 468.. 
A liability may result from a statu- 
tory provision. Anne Arundel 
County Com'rs v. Duvall, 54 Md. 
350; Clark v. Easton, 146 Mass. 43, 
14 N. E. 795; Lemon v. City of New- 
ton, 134 Mass. 476; Chase v. Mid- 
dleton, 123 Mich. 647, 82 N. W. 612; 
McConnell v. Dewey, 5 Neb. 385; 
Downes v. Town of Hopkinton, 67 
N. H. 456, 40 Atl. 433. A town is not 
responsible for the negligence of a 
highway surveyor in preparing a 
highway. Napier v. City of Brook- 
lyn, 41 App. Div. 274, 58 N. Y. Supp. 
506; People v. Westchester County, 
57 App. Div. 135, 67 N. Y. Supp.. 
981; Hamilton County Com'rs v. 
Mighels, 7 Ohio St. 109; Com. v. 
Brice, 22 Pa. 211; Walton v. Travis 
County, 5 Tex. Civ. App. 525, 24 S. 
W. 352; Harrison v. City of Colum- 
bus, 44 Tex. 418; Florida v. Gal- 
veston County (Tex. Civ. App.) 55 



2258 



LIABILITY FOR NEGLIGENCE. 



974 



private persons, the usual rule obtains that it will not be liable 
for the acts of such grantee though they may be negligent and 
result in injury. 112 

Liability for duty imposed on officer. The duty, a negligent 
performance or omission to perform which has resulted in injury, 
may be one which has been by law imposed as a ministerial one 
upon designated officials and the rule obtains that no liability can 
attach under these circumstances to the public corporation, 113 or 
the corporation with which they are officially connected. 114 



S. W. 50. See, also, note 35 Am. 
& Eng. Corp. Gas. 94. Authorities 
cited under note 20, 2d paragraph, 
955. 

112 City of Denver v. Sherret (C. 
C. A.) 88 Fed. 226; Town of Idaho 
Springs v. Filteau, 10 Colo. 105, 
14 Pac. 48; Sorenson v. Town of 
Greeley, 10 Colo. 369, 15 Pac. 803; 
City of Chicago v. Ramsey, 90 111. 
App. 271; Schnurr v. Huntington 
County Com'rs, 22 Ind. App. 188, 53 
N. E. 425; Michigan City v. Boeck- 
ling, 122 Ind. 39, 23 N. E. 518; Lin- 
coln v. City of Boston, 148 Mass. 
578, 20 N. E. 329, 3 L. R. A. 257; 
Fowler v. Inhabitants of Gardner, 
169 Mass. 505, 48 N. E. 619; Bur- 
ford v. City of Grand Rapids, 53 
Mich. 98. A city is not made liable 
for injuries inflicted by coasters on 
a public street through the designa- 
tion of that particular street for 
that purpose. Kornetzski v. City 
of Detroit, 94 Mich. 341, 53 N. W. 
1106; Hunt v. City of New York, 
109 N. Y. 134, 16 N. E. 320; Terry 
v. City of Richmond, 94 Va. 537, 27 
S. E. 429, 38 L. R. A. 834; Hubbell 
v. City of Viroqua, 67 Wis. 343, 30 
N. W. 847. But see City Council 
of Augusta v. Cone, 91 Ga. 714, 17 
S. E. 1005; Speir v. City of Brook- 
lyn, 139 N. Y. 6, 21 L. R. A. 641, A 
ctiy is liable for damages to pri- 
vate property caused by discharge 



of fireworks duly licensed. See, 
also, note on liability for author- 
izing a dangerous nuisance such as 
fireworks: 16 L. R. A. 395, 21 L. R. 
A. 641, 43 L. R. A. 295. 

us Case v. Hulsebush, 122 Ala. 
212, 26 So. 155; Waller v. City of 
Dubuque, 69 Iowa, 541; McCarthy 
v. Bauer, 3 Kan. 237; Quincy Tp. Y. 
Sheehan, 48 Kan. 620, 29 Pac. 1084; 
Layman v. Beeler, 24 Ky. L. R. A. 
174, 67 S. W. 995. There may be a 
joint liability. Breen v. Field, 157 
Mass. 277, 31 N. E. 1075; Gray v. 
City of Detroit, 113 Mich. 657, 71 
N. W. 1107; Hannon v. St. Louis 
County, 62 Mo. 313; Sutton v. 
Board of Police of Carroll County, 
41 Miss. 236; Martin v. City of 
Brooklyn, 1 Hill (N. Y.) 545; Ham 
v. City of New York, 37 N. Y. 
Super. Ct. (5 J. & S.) 458; Max- 
milian v. City of New York, 62 N. 
Y. 160; New York & B. Sawmill & 
Lumber Co. v. City of Brooklyn, 71 
N. Y. 580; Alcorn v. City of Phila- 
delphia, 44 Pa. 348. But see RiL'gin 
v. Brown, 59 Fed. 1005. Members 
of the board of public works au- 
thorized by Md. Code, art. 72, are 
not personally liable for injuries 
to workmen in their employ. Lundy 
v. Delmas, 104 Cal. 655, 38 Pac. 445, 
26 L. R. A. 651. Members of board 
of regents of state university are 
not individually liable. Worden v. 



975 



LIABILITY FOR NEGLIGENCE. 



2259 



975. Independent contractor. 

The same rule that governs the liability of a private person for 
the act of an independent contractor applies to a public corpo- 
ration though modified by the character of the work done. If 
governmental in its character, under no circumstances can there 
be a liability, except as one may be prescribed by law. If not of 
this nature, then the rule above applies. 115 This it will be re- 
membered, is substantially, that where the work is performed 
by an independent contractor who has full charge of the work, 
the employment and discharge of men and the use of agencies, 
no liability can arise. 116 The principle operates even where the 
contract provides that the work is to be done to the satisfaction 
of designated officials who, in pursuance of such a provision, su- 
pervise and pass upon the work from time to time. 117 If, how- 
ever, the authorities retain full or partial control of the work both 



Witt, 4 Idaho, 404, 39 Pac. 1114. 
County commissioners not person- 
ally liable for injuries received 
through defective highways. Pack- 
ard v. Voltz, 94 Iowa, 277, 62 N. W. 
757. County officers not person- 
ally liable when no liability at- 
taches to a county. O'Leary v. 
Board of Fire & Water Com'rs, 79 
Mich. 281, 44 N. W. 608, 7 L. R. A. 
170. 

114 Hennessey v. City of New 
Bedford, 153 Mass. 260, 26 N. E. 
999. 

us Foster v. City of Chicago, 96 
111. App. 4; City of Bloomington v. 
Wilson, 14 Ind. App. 476, 43 N. E. 
37; Fuller v. City of Grand Rapids, 
105 Mich. 529, 63 N. W. 530; Reed 
v. Allegheny City, 79 Pa. 300. 

no Foster v. City of Chicago, 197 
111. 264, 64 N. E. 322, affirming 96 
111. App. 4; City of Evansville v. 
Senhenn, 151 Ind. 42, 47 N. E. '634, 
51 N. E. 88, 41 L. R. A. 728; Green 
v. Eden, 24 Ind. App. 583, 56 N. E. 
240; Staldter v. City of Hunting- 
ton, 153 Ind. 354, 55 N. E. 88; 




Eginoire v. Union County, 112 
Iowa, 558, 84 N. W. 758; Barry v. 
City of St. Louis, 17 Mo. 121; Har- 
rington v. Village of Lansingburgh, 
110 N. Y. 145, 17 N. E. 728; Carroll 
v. City of New York, 159 N. Y. 
559, 54 N. E. 1089, affirming 29 App. 
Div. 420, 51 N. Y. Supp. 620; Up- 
pington v. City of New York, 165 
N. Y. 222, 59 N. E. 91, 53 L. R. A. 
550. Parties doing work for a city 
under contract will be regarded as 
independent contractors though the 
city reserved the right to discharge 
incompetent workmen. White v. 
City of Philadelphia, 201 Pa. 512, 
51 Atl. 332; Reed v. Allegheny City, 
79 Pa. 300; Erie School Dist. v. 
Fuess, 98 Pa. 600. But see City of 
Logansport v. Dick, 70 Ind. 65; 
City of Glasgow v. Gillenwaters, 23 
Ky. L. R. 2375, 67 S. W. 381; Pear- 
son v. Zable, 78 Ky. 170. 

117 Sewall v. St. Paul, 20 Minn. 
(Gil. 459) 511; Pack v. City of New 
York, 8 N. Y. (4 Seld.) 222; Upping- 
ton v. City of New York, 165 N. Y. 
222; 59 N. E. 91, 53 L. R. A. 550; City 



2260 LIABILITY FOR NEGLIGENCE. 9 76, 977 

in respect to the manner of its construction or the employment 
and discharge of men or the use of appliances, 118 or if the plan of 
work is defective, 119 even though the work is actually carried 
on by an independent contractor; a public corporation will be 
held liable for damages resulting from defective machinery or 
negligent work on the part of one performing the contract. 
Where an independent contractor is using the public streets, 
many cases hold it is still the duty of the municipality to give no- 
tice of their defective or dangerous condition for travel, and if 
injuries occur through failure to do this, a city will be liable. 12 * 

976. Defense of fellow-servant. 

In the carrying out of any work in respect to which any part 
thereof, a liability may arise, the defense of common employment 
or fellow-servant is open equally to public corporations as well 
as to private persons or corporations and to the extent which 
may be prescribed by law. 121 

977. Surface waters. 

In respect to the liability of public corporations for acts done 
affecting surface waters, either in the construction of public im- 

of Erie v. Caulkins, 85 Pa. 247. But Stork v. City of Philadelphia, 199 

see City of Chicago v. Dermody, Pa. 462, 49 Atl. 236; Hepburn v. 

61 111. 431. City of Philadelphia, 149 Pa. 335; 

us De Baker v. Southern Cal. R. Kollock v. City of Madison, 84 Wis. 

Co., 106 Cal. 257, 39 Pac. 610. A 458. But see Sullivan v. City of 

liability also attaches where the Holyoke, 135 Mass. 273; City of 

damage might have been pre- Beatrice v. Reid, 41 Neb. 214, 59 

vented by the exercise of reason- N. W. 770. 

able prudence in respect to the us City of Springfield v. Le 

plan and erection of the public Claire, 49 111. 476; City of East St. 

work. City of Chicago v. Joney, Louis v. Murphy, 89 111. App. 22; 

60 111. 383; City of Chicago v. Der- City of Louisville v. Shanahan, 22 

mody, 61 111. 431; Brooks v. Inhabi- Ky. L. R. 163, 56 S. W. 808; Pear- 

tants of Somerville, 106 Mass. 271; son v. Zable, 78 Ky. 170. 
Broadwell v. Kansas City, 75 120 City of Indianapolis v. Marold, 

Mo. 213; Schumacher v. City of 25 Ind. App. 428, 58 N. E. 512. See, 

New York, 40 App. Div. 320, 57 N. also, 1004 and 1009, post. 
Y. Supp. 968; City of Ironton v. 121 McDermott v. City of Boston, 

Kelley, 38 Ohio St. 50; City of Har- 133 Mass. 349; Toledo v. Cone, 41 

risburg v. Say lor, 187 Pa. 216; Ohio St. 149; Flynn v. City of 



$977 



LIABILITY FOR NEGLIGENCE. 



2261 



provements or their maintenance, the rule varies. In those juris- 
dictions where the common-law rule prevails, namely, that sur- 
face water is a common enemy which the owners of all lower es- 
tates are permitted to contend with in the manner they deem 
best, a public corporation will not be held liable for acts by which 
the flow of surface water has been diverted or changed in such 
a manner as to occasion damage. 122 In other states where the 
civil law is in force, that rule will regulate the action of public 
corporations in the construction or maintenance of improvements. 
This rule, as will be remembered, is to the effect that each lower 
estate is regarded as a servient one and is bound to permit surface 
water to pass over it in the manner and the channels in which it 
is naturally accustomed. 123 



Salem, 134 Mass. 351. But see Tur- 
ner v. City of Indianapolis, 96 Ind. 
51; Coots v. City of Detroit, 75 
Mich. 628, 5 L. R. A. 315. Dissent- 
ing opinion. Wild v. City of Pater- 
son, 47 N. J. Law, 406. 

122 Corcoran v. Benicia, 96 Cal. 1, 
30 Pac. 798; Lampe v. City & Coun- 
ty of San Francisco, 124 Cal. 546, 
57 Pac. 461; Byrne v. Town of 
Farmington, 64 Conn. 367, 30 Atl. 
138; City of Vincennes v. Rich- 
ards, 23 Ind. 381; Weis v. City of 
Madison, 75 Ind. 241; City of Ev- 
ansville v. Decker, 84 Ind. 325; 
Thibodaux v. Town of Thibodaux, 
46 La. Ann. 1528, 16 So. 450; Gardi- 
ner v. Inhabitants of Camden, 86 
Me. 377, 30 Atl. 13; Turner v. In- 
habitants of Dartmouth, 95 Mass. 
(13 Allen) 291; Keith v. City of 
Brockton, 136 Mass. 119; Breuck v. 
City of Holyoke, 167 Mass. 258, 45 
N. E. 732; Rice v. City of Flint, 67 
Mich. 401; Alden v. City of Minne- 
apolis, 24 Minn. 254; Follmann v. 
City of Mankato, 45 Minn. 457, 48 
N. W. 192; Dudley v. Village of 
Buffalo, 73 Minn. 347, 76 N. W. 44; 
Churchill v. Beebe, 48 Neb. 87, 66 
N. W. 992, 35 L. R. A. 442; City of 



Kearney v. Themanson, 48 Neb. 
74, 66 N. W. 996; Wakefield v. 
Newell, 12 R. I. 75; Murray v. Allen, 
20 R. I. 263, 38 Atl. 497; Jordan 
v. City of Benwood, 42 W. Va. 312, 
26 S. E. 266, 36 L. R. A. 519; 
Hoyt v. City of Hudson, 27 Wis. 
656; Waters v. Village of Bay 
View, 61 Wis. 642; Hart v. City of 
Baraboo, 101 Wis. 368, 77 N. W. 
744. See, also, 999, post. Addy 
v. City of Janesville, 70 Wis. 401, 
35 N. W. 931. But if a municipal 
corporation acts without lawful au- 
thority in making an improvement, 
it will be liable for the injury 
caused by the accumulation of sur- 
face water. 

123 Arn v. Kansas City, 4 Mc- 
Crary, 558, 14 Fed. 236; City of Al- 
bany v. Sikes, 94 Ga. 30, 20 S. E. 
257, 26 L. R. A. 653; Correll v. 
City of Cedar Rapids, 110 Iowa, 333, 
81 N. W. 724; Podhaisky v. City of 
Cedar Rapids, 106 Iowa, 543; Bow- 
man v. New Orleans, 27 La. Ann. 
501; Miller v. City of Morristown, 
47 N. J. Eq. 62, 20 Atl. 61; Town of 
Union v. Durkes, 38 N. J. Law, 21; 
Elliott v. Oil City, 129 Pa. 570, 18 
Atl. 553; Smith v. City of Alexan- 



2262 



LIABILITY FOR NEGLIGENCE. 



978, 979 



978. Nonliability for exercise of discretionary or legislative 
power. 

The rule of nonliability is also based, in some cases, upon the 
principle that if a public corporation in the exercise of some of 
its lawful powers, particularly the making of improvements, in 
a careful and skillful manner, causes consequential damages, it 
cannot be held responsible because they are the direct results of 
the exercise of a legislative, discretionary power. 12 * 

979. Liability imposed as result of negligence. 

The rule of nonliability, it has been said, presupposes the per- 
formance of the duty of the exercise of the power in a careful and 
skillful manner. 

Where the work has been negligently done, or the duty per- 
formed in some respect in a careless, unskillful and negligent man- 
ner, 125 whereby injury is caused through the accumulation of sur- 
face waters upon private property, 126 or by the collection, diver- 



dria, 33 Grat. (Va.) 208; Gillison 
v. City of Charleston, 16 W. Va. 
282. See, also, 999, post. But 
see Freburg v. City of Davenport, 
63 Iowa, 119; Knostman & Peter- 
son Furniture Co. v. City of Daven- 
port, 99 Iowa, 589, 68 N. W. 887; 
Gilfeather v. City of Council Bluffs, 
69 Iowa, 310. 

i2*Bronson v. Borough of Wall- 
ingford, 54 Conn. 513, 9 Atl. 393; 
Roll v. City of Augusta, 34 Ga. 
326; Templeton v. Voshloe, 72 Ind. 
134; Davis v. City of Crawfords- 
ville, 119 Ind. 1, 21 N. E. 449; City 
of Cumberland v. Willison, 50 Md. 
138; Kennison v. Beverly, 146 
Mass. 467; Lee v. City of Minne- 
apolis, 22 Minn. 13; Stewart v. 
City of Clinton, 79 Mo. 603; Miller 
v. Morristown, 47 N. J. Eq. 62, 20 
Atl. 61; Byrnes v. City of Cohoes, 
67 N. Y. 204; Watson v. City of 
Kingston, 114 N. Y. 88, 21 N. E. 
102; Paine v. Village of Delhi, 116 



N. Y. 224; Bush v. City of Port- 
land, 19 Or. 45, 23 Pac. 667; City 
of Allentown v. Kramer, 73 Pa. 406 ; 
Noble v. Village of St. Albans, 56 
Vt. 522; Heth v. City of Fond die 
Lac, 63 Wis. 228, 23 N. W. 495. But 
see Weis v. City of Madison, 75 
Ind. 241; Freburg v. City of Daven- 
port, 63 Iowa, 119; Boston Belting 
Co. v. City of Boston, 149 Mass. 44; 
Gilluly v. City of Madison, 63 Wis. 
518, distinguishing Heth v. City of 
Fond du Lac, 63 Wis. 228, 23 N. W. 
495. 

125 City of Denver v. Rhodes, 9 
Colo. 554, 13 Pac. 729; Benson v. 
City of Wilmington, 9 Houst. (Del.) 
359, 32 Atl. 1047; Burton v. City of 
Chattanooga, 75 Tenn. (7 Lea) 739; 
Jordan v. City of Mt. Pleasant, 15 
Utah, 449, 49 Pac. 746. See, also, 
999, post. 

126 Arn v. Kansas City, 14 Fed. 
236; City of Dixon v. Baker, 65 
111. 518; City of New Albany v. 



979 



LIABILITY FOR NEGLIGENCE. 



2263 



sion and discharge of them upon private property in such a man- 
ner as to occasion injury, 127 whatever may be the rule adopted, 
whether common-law or civil law, the corporation will be held re- 
sponsible for the damages it may have caused. 128 The authori- 
ties, however, are conflicting. 

Natural watercourse. A liability will also follow where a nat- 
ural watercourse has been negligently obstructed or destroyed. 129 
It is true, however, in this respect as in all cases where the ques- 



Lines, 21 Ind. App. 380, 51 N. B. 
346; City of Seymour v. Cummins, 
119 Ind. 148, 5 L. R. A. 126; City of 
Frostburg v. Dufty, 70 Md. 47; 
Ashley v. City of Port Huron, 35 
Mich. 296, reviewing many authori- 
ties. O'Brien v. City of St. Paul, 

25 Minn. 331 ; Gross v. City of Lam- 
pasas, 74 Tex. 195, 11 S. W. 1086; 
City of Dallas v. Cooper (Tex. Civ. 
App.) 34 S. W. 321. 

127 Gilmer v. City of Montgomery, 

26 Ala. 665; Larrabee v. Town of 
Coverdale, 131 Gal. 96, 63 Pac. 143; 
Brown v. City of Atlanta, 66 Ga. 
71; Nevins v. City of Peoria, 41 
111. 502; Town of Princeton v. 
Geiske, 93 Ind. 102; Hoffman v. 
City of Muscatine, 113 Iowa, 332, 

85 N. W. 17; Cahill v. City of Bal- 
timore, 93, Md. 233, 48 Atl. 705; 
City of Frostburg v. Dufty, 70 Md. 
47, 16 Atl. 642; Manning v. City of 
Lowell, 130 Mass. 21; Rychlicki v. 
City of St. Louis, 98 Mo. 497, 11 
S. W. 1001, 4 L. R. A. 594; Flanders 
v. City of Franklin, 70 N. H. 168, 
47 Atl. 88; Bradt v. City of Al- 
bany, 5 Hun (N. Y.) 591; Butler v. 
Village of Edgewater, 53 Hun, 633, 
6 N. Y. Supp. 174; Byrnes v. City 
of Cohoes, 67 N. Y. 204; Vogel v. 
City of New York, 92 N. Y. 10; 
Weir v. Borough of Plymouth, 148 
Pa. 566, 24 Atl. 94. 

128 City of Eufaula v. Simmons, 

86 Ala. 515, 6 So. 47; Lehn v. City 



& County of San Francisco, 66 
Cal. 76, 4 Pac. 965; City of Denver 
v. Rhodes, 9 Colo. 554, 13 Pac. 729; 
McArthur v. City of Dayton, 19 Ky. 
L. R. 82, 42 S. W. 343; Hitchins v. 
City of Frostburg, 68 Md. 100, 11 
Atl. 826; Stanchfield v. Newton, 142 
Mass. 110; Morley v. Village of 
Buchanan, 124 Mich. 128, 82 N. W. 
802; McAskill v. Hancock Tp., 129 
Mich. 74, 88 N. W. 78, 55 L. R. A. 
738; Seaman v. City of Marshall, 
116 Mich. 327, 74 N. W. 484; Kobbs 
v. City of Minneapolis, 22 Minn. 
159; Robbins v. Village of Will- 
mar, 71 Minn. 403, 73 N. W. 1097; 
Bedell v. Village of Sea Cliff, 18 
App. Div. 261, 46 N. Y. Supp. 226; 
City of Comanche v. Zettlemoyer 
(Tex. Civ. App.) 40 S. W. 641. 

129 City of Helena v. Thompson, 
29 Ark. 569; Los Angeles Cemetery 
Ass'n v. City of Los Angeles, 103 
Cal. 461; Kansas City v. Slang- 
strom, 53 Kan. 431, 36 Pac. 706; 
Parker v. City of Atchison, 58 
Kan. 29, 48 Pac. 631; Lalanne v. 
Savoy, 29 La. Ann. 516; Parker v. 
City of Lowell, 77 Mass. (11 Gray) 
353; Biggio v. City of Boston, 179 
Mass. 356, 60 N. E. 938; Boston 
Belting Co. v. City of Boston, 149 
Mass. 44; McClure v. City of Red 
Wing, 28 Minn. 186; Buchanan v. 
City of Duluth, 40 Minn. 402, 42 N. 
W. 204; Stoehr v. City of St. Paul, 
bert v. City of St. Paul, 68 Minn. 



2264: 



LIABILITY FOR NEGLIGENCE. 



tion of negligence arises, that the liability is dependent upon the 
facts alleged in each case to constitute negligence. 

Where the watercourse is obstructed by third parties, no lia- 
bility can arise on the part of the public authorities. 130 The rule 
stated in the first of this paragraph equally applies to obstruct- 
ing natural watercourses by bridges or culverts. 131 

980. Notice of injury or damage. 

In some states where either by rule or statute a liability is im- 
posed upon a public corporation to enable the one injured to suc- 
cessfully maintain an action, it is provided by law that a notice 
of the claim must be given to designated officials and within a 
prescribed time. This subject has been fully treated in other 
portions of this work. 132 The question has arisen whether such 
provisions apply both to injuries to persons and property or to 
either alone. 133 The application is determined largely by the 
phraseology of the statute though it is held in some cases that 



54 Minn. 549, 56 N. W. 250; Tau- 
519, 71 N. W. 664. No liability will 
result if the damage is caused by 
an unusual storm. 

Boye v. City of Albert Lea, 74 
Minn. 230, 76 N. W. 1131. It is 
within the corporate powers of the 
city of Albert Lea to dam the waters 
of the Shellrock river. Flanders 
v. City of Franklin, 70 N. H. 168, 
47 Atl. 88, City of Beatrice v. Leary, 
45 Neb. 149, 63 N. W. 370; West 
Orange Tp. v. Field, 37 N. J. Eq. 
(10 Stew.) 600; Ordway v. Village 
of Canisteo, 66 Hun, 569, 21 N. Y. 
Supp. 835; Rider v. City of Amster- 
dam, 31 Misc. 375, 65 N. Y. Supp. 
579; Noonan v. City of Albany, 79 
N. Y. 470; Haynes v. Burlington, 
38 Vt. 350. 

130 Stockhouse v. City of Lafay- 
ette, 26 Ind. 17; Callahan v. City of 
Des Moines, 63 Iowa, 705; City of 
Kansas City v. Brady, 52 Kan. 297, 
34 Pac. 884, affirmed 53 Kan. 312, 



36 Pac. 726; Lander v. Bath, 85 Me. 
141, 26 Atl. 1091; Perry v. City of 
Worcester, 72 Mass. (6 Gray) 544; 
City of Beatrice v. Knight, 45 Neb. 
546, 63 N. W. 838; Haynes v. Town 
of Burlington, 38 Vt. 350. 

isi City of Helena v. Thompson, 
29 Ark. 569; Mootry v. Town of 
Danbury, 45 Conn. 550; Kansas City 
v. Slangstrom, 53 Kan. 431; Wheel- 
er v. City of Worcester, 92 Mass. 
(10 Allen) 591; McClure v. City of 
Red Wing, 28 Minn. 186; Young v. 
Kansas City, 27 Mo. App. 101; 
Haynes v. Town of Burlington, 38 
Vt. 350; Bard en v. City of Portage, 
79 Wis. 126, 48 N. W. 210. But see 
Diamond Match Co. v. Town of 
New Haven, 55 Conn. 510, 13 Atl. 
409. See, also, Barnes v. City of 
Hannibal, 71 Mo. 449. 

132 See 484 et seq., ante, and 
1037, 1061 et seq., post. 

isa Cohen v. City of New York, 33 
Hun (N. Y.) 404. 



981-983 



LIABILITY FOR NEGLIGENCE. 



the term "damages" in referring to a notice necessary to be 
given applies only to injuries to property. 134 

981. Damages. 

When a plaintiff is successful in actions based on negligence, 
the damages recovered may be compensatory, punitive or both. 
"Where the defendant is, however, a public corporation, it is not 
common to allow the recovery of other than compensatory dam- 
ages, 135 although by statute the rule may be otherwise. 138 

982. Liability in respect to highways. 

The greater number of questions in connection with the subject 
of negligence of public corporations arise in respect to the duty 
to keep highways in a reasonably safe and fit condition for use, in 
a proper manner, by those entitled to the right. There are many 
conflicting decisions and to some extent a liability is created only 
by and, therefore, dependent upon the construction of some stat- 
utory provision. 

3. Of quasi corporations. 

The distinction between quasi corporations and municipal cor- 
porations proper is important and the determining element in a 
large number of adjudications. Public quasi corporations, it will 
be remembered, are regarded as mere political agencies having 
an arbitrarily imposed form of government, their duties strictly 
enjoined and limited by law and with simple conditions existing 



134 city of Warren v. Davis, 43 
Ohio St. 447. See, also, 1037 & 
1061 et seq., post. 

13 5 Wilson v. Town of Granby, 47 
Conn. 59; Burr v. Town of Plym- 
outh, 48 Conn. 460; City of Chicago 
v. Martin, 49 111. 241; City of Chi- 
cago v. Langlass, 52 111. 256; City 
of Jacksonville v. Lambert, 62 111. 
519; City of Chicago v. Kelly, 69 
111. 475; Bennett v. City of Marion, 
102 Iowa, 425, 71 N. W. 360; City 
of New Orleans v. Heres, 23 La. 

. 782; Littlefield v. Inhabitants 



of Biddeford, 29 Me. 310; Sanford 
v. Inhabitants of Augusta, 32 Me. 
536; Stover v. Inhabitants of Blue- 
hill, 51 Me. 439; Horrigan v. In- 
habitants of Clarksburg, 150 Mass. 
218, 22 N. E. 897, 5 L. R. A. 609; 
Farrelly v. City of Cincinnati, 2 
Disn. (Ohio) 516; Raymond v. Kese- 
berg, 91 Wis. 191, 64 N. W. 861. 
Liability limited to $5000. But see 
Whipple v. Walpole, 10 N. H. 130. 
ICG Swift v. Berry, 1 Root (Conn.) 
448. 



2206 



LIABILITY FOR NEGLIGENCE. 



983 



both in respect to private life and business affairs and govern- 
mental acts. The powers they are permitted to exercise and the 
duties they are required to perform are regarded as of govern- 
mental nature only and therefore to be exercised and performed 
for the benefit of the community or the public at large. The es- 
tablishment, improvement and maintenance of highways is con- 
sidered as one of various governmental functions. The rule, 
therefore, exists established by such a weight of authority as to 
be regarded universal that no liability attaches to a public quasi 
corporation for a failure to maintain in a reasonably fit and safe 
condition for public travel, the highways within their jurisdic- 
tion. 137 Even where the duty is specifically imposed by statute, 
it is still regarded, in some cases, as public in its character, not 
corporate, and no liability is thereby created. 138 

Exceptions. In a few states, however, a limited liability exists 
at common law or by force of some statute dealing only with des- 
ignated conditions. 139 In Iowa a liability attaches in respect to 
defective bridges only. 140 



137 Barnes v. District of Colum- 
bia, 91 U. S. 540; Covington County 
v. Kinney, 45 Ala. 176; Barbour 
County v. Horn, 48 Ala. 649; Scales 
v. Ordinary of Chattahoochee, 41 
Ga. 225; Town of Waltham v. Kem- 
per, 55 111. 346; Abbett v. John- 
son County Com'rs, 114 Ind. 61, 16 
N. E. 127; Jasper County Com'rs v. 
Allman, 142 Ind. 573, 42 N. E. 206, 
39 L. R. A. 58; Cones v. Benton 
County Com'rs, 137 Ind. 404, 37 
N. E. 272; Shrum v. Washington 
County Com'rs, 13 Ind. App. 585, 
41 N. E. 349; Yeager v. Tippecanoe 
Tp., 81 Ind. 46; Fulton County 
Com'rs v. Rickel, 106 Ind. 501; 
Packard v. Voltz, 94 Iowa, 277, 62 
N. W. 757; Eikenberry v. Bazaar 
Tp., 22 Kan. 556; Wheatly v. Mer- 
cer, 72 Ky. (9 Bush) 704; Sink- 
horn v. Lexington H. & P. Turn- 
pike R. Co., 23 Ky. L. R. 1479, 65 
S. W. 356; Frazer v. Inhabitants of 
Lewiston, 76 Me. 531; Niles High- 



way Com'rs v. Martin, 4 Mich. 557; 
Altno v. Town of Sibley, 30 Minn, 
186; Weltsch v. Town of Stark, 65 
Minn. 5, 67 N. W. 648; Peck v. Vil- 
lage of Batavia, 32 Barb. (N. Y.> 
634; Markey v. Queen's County, 
154 N. Y. 675, 49 N. E. 71, 39 L. R. 
A. 46; Reiss v. Town of Pelham, 
53 App. Div. 459, 65 N. Y. Supp. 
1033; Vail v. Town of Amenia, 4 
N. D. 239; Prindle v. Town of 
Fletcher, 39 Vt. 255. 

iss But see Willey v. City of Ells- 
worth, 64 Me. 57. 

139 Munson v. Town of Derby, 37 
Conn. 298; Pleasant Grove Tp. v. 
Ware, 7 Kan. App. 648, 53 Pac. 885; 
Calvert County Com'rs v. Gibson, 
36 Md. 229; Hartford County 
Com'rs v. Hamilton, 60 Md. 340; 
Richardson v. Inhabitants of Dan- 
vers, 176 Mass. 413, 57 N. E. 688. 
A bicycle is not a carriage within 
the meaning of Pub. St. c. 52, 1, 
which provides that highways shall 



984 



LIABILITY FOR NEGLIGENCE. 



2267 



984. Of chartered municipalities. 

Municipal corporations proper, on the other hand, are not only 
governmental agents but in a certain sense are regarded as quasi 
private corporations possessing special privileges which are ex- 
ercised for the benefit of their citizens alone. They possess local, 
private and proprietary powers which are exercised for the ad- 
vantage and convenience of a local community not solely for the 
benefit or advantage of the community or the public at large. 
They are governed almost universally by charters from the state, 
not arbitrarily imposed, but voluntarily assumed. The condi- 
tions of life are complex and varied. From these considerations 
the rule arises that they are charged with a liability express or 
implied for a failure to preserve and maintain the public ways 
within their limits in a reasonably safe condition for public 
travel. 141 The responsibility cannot be evaded by its delegation 



be kept in repair "so that the same 
may be reasonably safe and con- 
venient for travelers with their 
horses, teams, and carriages at all 
seasons of the year." Woodman 
v. Town of Nottingham, 49 N. H. 
387; Van Vane v. Inhabitants of 
Center Tp., 67 N. J. Law, 587, 52 Atl. 
359; McCalla v. Multnomah Coun- 
ty, 3 Or. 424; Gardner v. Wasco 
County, 37 Or. 392, 61 P. 834, 62 P. 
753; Dean v. New Milford Tp., 5 
Watts & S. (Pa.) 545; Burrell Tp. 
v. Uncapher, 117 Pa. 353, 11 Atl. 
619. 

Perry Tp. v. John, 79 Pa. 412. 
The original construction of roads 
is to be controlled by the topo- 
graphical features, population and 
taxable ability of the township and 
in an action to recover damages for 
injuries caused by the alleged nar- 
rowness of the way, it is error to 
exclude evidence that the road 
could not have been made wider 
at that point without incurring 
enormous expense such as the 
township could not bear. Shadier 



v. Blair County, 136 Pa. 488, 20 Atl. 
539. 

1*0 Chandler v. Fremont County, 
42 Iowa, 58; Huston v. Iowa Coun- 
ty, 43 Iowa, 456; Krause v. Davis 
County, 44 Iowa, 141; Miller v. 
Boone County, 95 Iowa, 5. 

"1 City of Jacksonville v. Smith 
(C. C. A.) 78 Fed. 292; City of Sel- 
ma v. Perkins, 68 Ala. 145; Lord v. 
City of Mobile, 113 Ala. 360; Doeg 
v. Cook, 126 Cal. 213, 58 Pac. 707; 
City of Denver v. Dunsmore, 7 Colo. 
328; City of Boulder v. Niles, 9 
Colo. 415, -12 Pac. 632; Mead v. 
Town of Derby, 40 Conn. 205; 
Makepeace v. City of Waterbury, 
74 Conn. 360, 50 Atl. 876; Hall v. 
City of Norwalk, 65 Conn. 310, 32 
Atl. 400; City of Savannah v. Cul- 
lens, 38 Ga. 334; Giffen v. City of 
Lewiston, 6 Idaho, 231, 55 Pac. 545; 
City of Pekin v. Newell, 26 111. 320. 
The liability exists though the 
street may have been constructed 
in a different manner from that au- 
thorized by law. City of Sterling 
V. Thomas, 60 111. 264; City of 



22G8 



LIABILITY FOR NEGLIGENCE. 



984 



Frankfort v. Coleman, 19 Ind. App. 
368, 49 N. E. 474. Upon the annex- 
ation of territory to a state the lia- 
bility exists in respect to the an- 
nexed streets. 

Town of Williamsport v. Lisk, 21 
Ind. App. 414, 52 N. E. 628; Byerly 
v. City of Anamosa, 79 Iowa, 204: 
Ford v. City of Des Moines, 106 
Iowa, 94; Cline v. Crescent City R. 
Co., 41 La. Ann. 1031, 6 So. 851; 
Bliss v. Inhabitants of Deerfield, 30 
Mass. (13 Pick.) 102; Raymond v. 
City of Haverhill, 168 Mass. 382; 
Fox v. City of Chelsea, 171 Mass. 
297; Johnson v. City of Worcester, 
172 Mass. 122; Nicodemo v. Inhabi- 
tants of Southborough, 173 Mass. 
455; Southwell v. City of Detroit, 
74 Mich. 438, 42 N. W. 118; Face v. 
City of Ionia, 90 Mich. 104, 51 N. W. 
184. Where the liability is imposed 
by statute it will be strictly con- 
strued. 

Roberts v. City of Detroit, 102 
Mich. 64, 60 N. W. 450, 27 L. R. A. 
572. There is no common-law lia- 
bility of a municipal corporation 
for injuries caused by a neglect to 
repair highways or sidewalks. Se- 
bert v. City of Alpena, 78 Mich. 165, 
*3 N. W. 1098; Moon v. City of 
Ionia, 81 Mich. 635; Shietart v. 
City of Detroit, 108 Mich. 309; 
Walker v. City of Ann Arbor, 111 
Mich. 1; Doak v. Saginaw Tp., 119 
Mich. 680; Shartle v. City of Minne- 
apolis, 17 Minn. 308 (Gil. 284); 
McHugh v. City of St. Paul, 67 
Minn. 441; Tarras v. City of Wi- 
nona, 71 Minn. 22; Hall v. City of 
Austin, 73 Minn. 134, 75 N. W. 1121; 
Cunningham v. City of Thief River 
Falls, 84 Minn. 21, 86 N. W. 763; 
May v. City of Anaconda, 26 Mont. 
140, 66 Pac. 759; City of Wahoo v. 
Reeder, 27 Neb. 770; McDonough 
v. Virginia City, 6 Nev. 90; Carter 



v. City of Rahway, 55 N. J. Law, 
177; Lane v. Town of Hancock, 67 
Hun, 623, 22 N. Y. Supp. 470; Sey- 
mour v. Village of Salamanca, 137 
N. Y. 364, 33 N. E. 304; City of 
Brooklyn v. Brooklyn City R. Co., 
47 N. Y. 475. The duty cannot be 
evaded by contract with third per- 
sons for its performance. 

Bieling v. City of Brooklyn, 120 
N. Y. 98, 24 N. E. 389; Ludlow v. 
City of Fargo, 3 N. D. 485, 57 X. W. 
506; City of Circleville v. Sohn, 59 
Ohio St. 285, 52 N. E. 788; City of 
Dayton v. Taylor's Adm'r, 62 Ohio 
St. 11, 56 N. E. 480; City of Guthrie 
v. Swan, 5 Okl. 779, 51 Pac. 562. 
Since municipal corporations have 
been granted the power to levy 
taxes for the opening, improving 
and maintaining of streets and 
have been given special powers of 
control over them, they are liable 
for personal injuries caused by 
negligence in permitting a street to 
be left in an unsafe condition even 
in the absence of an express stat- 
utory provision imposing such a lia- 
bility. 

Sheridan v. City of Salem, 14 Or. 
328, 12 Pac. 925; Farquar v. City 
of Roseburg, 18 Or. 271, 22 Pae. 
1103; Munn v. City of Pittsburg, 40 
Pa. 364 ; City of Barthold v. City of 
Philadelphia, 154 Pa. 109, 26 Atl. 
304; Seamans v. Fitts, 20 R. I. 443; 
State v. City of Loudon, 40 Tenn. 
(3 Head) 263; Hopkins v. Ogden 
City, 5 Utah, 390; City of Roanoke 
v. Harrison (Va.) 19 S. E. 179; 
Button v. City of Snohomish, 11 
Wash. 24, 39 Pac. 273; Griffin v. 
Town of Williamstown, 6 W. Va. 
312; Kittredge v. City of Milwau 
kee, 26 Wis. 46; Burns v. Town of 
Elba, 32 Wis. 605; McFarlane v. 
City of Milwaukee, 51 Wis. 691; 
Bills v. Town of Kaukauna, 94 Wis. 



985 



LIABILITY FOR NEGLIGENCE. 



2269 s 



to third parties either by contract, by imposing the duty upon 
abutting owners, or otherwise. 142 

985. Exceptions to the above rule. 

The principle stated in the preceding section is not followed in 
a number of states, notably in New England, where it held that 
chartered municipalities, unless the liability is imposed by stat- 
ute or charter, have no obligation resting upon them to maintain 
and repair their public ways. 143 The reasons for this are given in 



310. See, also, note 53 Cent. Law 
J. 123. 

142 City of Cleveland v. King, 132 
U. S. 295; City of Jacksonville v. 
Drew, 19 Fla. 106; City of Rock- 
ford v. Hildebrand, 61 111. 155; Ho- 
gan v. City of Chicago, 168 111. 551, 
48 N. E. 210; Gaff v. Hutchinson, 
38 Ind. 341; Rowell v. Williams, 29 
Iowa, 210; Union St. R. Co. v. 
Stone, 54 Kan. 83, 37 Pac. 1012; 
Wellcome v. Inhabitants of Leeds, 
51 Me. 313; Prentiss v. City of Bos- 
ton, 112 Mass. 43; Blessington v. 
City of Boston, 153 Mass. 409, 26 
N. E. 1113; Hayes v. West Bay 
City, 91 Mich. 418, 51 N. W. 1067; 
Estelle v. Village of Lake Crystal, 
27 Minn. 243; Blake v. City of St. 
Louis, 40 Mo. 569; Russell v. Town 
of Columbia, 74 Mo. 480; Carpenter 
v. Nashua, 58 N. H. 37; Davis v. 
City of Omaha, 47 Neb. 836, 66 N. 
W. 859; City of Lincoln v. Pirner, 
59 Neb. 634, 81 N. W. 846; Scanloii 
v. City of Watertown, 14 App. Div. 
1, 43 N. Y. Supp. 618; People v. 
City of Brooklyn, 65 N. Y. 349; 
City of Circleville v. Neuding, 41 
Ohio St. 465; McAllister v. City of 
Albany, 18 Or. 426, 23 Pac. 845; 
Mahony Tp. v. Scholly, 84 Pa. 136; 
Watson v. Tripp, 11 R. I. 98; Pat- 
terson v. City of Austin (Tex. Civ. 
App.) 29 S. W. 1139; Willard v. 



Town of Newbury, 22 Vt. 458; Mc- 
Coull v. City of Manchester, 85 Va. 
579, 8 S. E. 379; Sproul v. City of 
Seattle, 17 Wash. 256, 49 Pac. 489. 
i City of Ft. Smith v. York, 52 
Ark. 84, 12 S. W. 157, following 
City of Arkadelphia v. Windham, 
49 Ark. 139, 4 S. W. 450; Winbigler 
v. City of Los Angeles, 45 Cal. 36; 
Chope v. City of Eureka, 78 Cal. 
588, 21 Pac. 364, 4 L. R. A. 325; 
Arnold v. San Jose, 81 Cal. 618, 22 
Pac. 877; McGowan v. Town of 
Windham, 25 Conn. 86; Falls Vil- 
lage Water Power Co. v. Tibbetts, 
31 Conn. 165; Haines v. City of 
Lewiston, 84 Me. 18, 24 Atl. 430; 
Carter v. City of Rahway, 57 N. J. 
Law, 196, 30 Atl. 863, affirming 55 
N. J. Law, 177, 26 Atl. 96; Pray v, 
Jersey City, 32 N. J. Law, 394; 
Mattson v. City of Astoria, 39 Or. 
577, 65 Pac. 1066. The provisions 
of the city charter of Astoria ex- 
empting the city and the members 
of the council from liability on ac- 
count of damages resulting from 
defective streets is contrary to- 
Constitution, art. 1, 10, which 
guarantees to every person a rem- 
edy by due course of law for in- 
juries sustained by him in person 
or property. Taylor v. Peckham, 8 
R. I. 349; Parker v. Village of Rut- 
land, 56 Vt. 224. 




LIABILITY FOR NEGLIGENCE. Qgg 

.a leading decision 144 where all the authorities at that time were 
reviewed and considered. The question arising in this case was 
the liability of a city for an injury to a child caused by a de- 
fective school building, but the discussion in the decision includes 
generally the performance of governmental duties. A case in 
Arkansas 145 also considers fully the reason for this rule. In some 
of the states where the above common law is maintained, special 
liabilities have been imposed by statute. 

986. Reasons for different doctrines. 

From an examination of the authorities as cited in a few pre- 
ceding sections, it will be found that the courts, while maintain- 
ing substantially the same doctrine, namely, absolving quasi cor- 
porations from liability and imposing it upon municipal corpo- 
rations proper, are widely at variance in the legal reasons given 
for maintaining the distinction. As a matter of fact, both quasi 
and municipal corporations are alike subdivisions of the state or 
sovereign created for public, although local in each case, govern- 
mental purposes. A difference is not found altogether in the 
condition that the one is given greater powers than the other 
unless the power is given not for governmental purposes but to 
engage in some enterprise of a quasi private nature and more fre- 
quently to municipal corporations from which they derive a 
pecuniary benefit in their corporate or proprietary capacit; 
for example, power to construct lighting plants or waterworks, 
to supply light or water for sale to private consumers or to main- 
tain toll bridges or ferries from each of which a revenue would 
be derived. In this class of cases it is universally held that cor- 
porations are liable for their wrongful or negligent acts because 
done in what is termed their private or corporate character and 
not in their public capacity as governing agents in the dischar^- 
of duties imposed for the public or general benefit. 146 The gov- 
ernmental powers given to each class of corporations are con- 
ferred for political purposes and in each case because they are 
governmental agencies. As stated in the Arkansas case, 147 the 

i Hill v. City of Boston, 122 e Snider v. City of St. Paul, 51 

Mass. 344. Minn. 466, 53 N. W. 753, 18 L. R 

"5 Arkadelphia v. Windham, 49 A. 151. 

Ark. 139, 4 S. W. 450. T City of Arkadelphia v. Wind- 



986 



LIABILITY FOR NEGLIGENCE. 



2271 



duty of keeping in repair the public highways in their respective 
limits is imposed on both for the benefit of the public without any 
consideration or emolument received by either. Before the in- 
corporation of a town or city, the road district or county is 
charged with the duty of keeping its highways in repair; when 
the territory becomes incorporated as a city or town, the duty is 
simply transferred from one governmental agency to another. 
The mere incorporation does not deprive a certain district of its 
character as a governmental agent. The object, purpose, reason 
and character of the duty is the same in both cases. The appli- 
cation of the doctrine of liability in respect to keeping highways 
in repair to municipal corporations proper and the exemption 
in the case of quasi corporations should, it seems to the author, 
be better based upon certain special considerations of public pol- 
icy or upon the doctrine of stare decisis rather than upon a 
strictly legal principle sufficient to justify the distinction. How- 



am, 49 Ark. 139, 4 S. W. 450. The 
rule of nonliability in respect to 
quasi corporations is stated, and 
the suggestion made that it is diffi- 
cult to understand why the same 
rule should not apply and be en- 
forced as to incorporated towns and 
cities. The court further says: 
"For, like counties, they are a part 
of the machinery of the state, and 
are its auxiliaries in the important 
business of municipal rule and in- 
ternal administration, and their 
functions are almost wholly of a 
public nature. Like counties, their 
functions, rights and privileges, 
are under the control of the legis- 
lature, and may be changed, modi- 
fied or repealed, as a general rule, 
as the exigencies of the public ser- 
vice or the public welfare demand. 
Like counties, they can sustain no 
right or privilege, or their exist- 
ence, upon anything like a contract 
between them and the state, be- 
cause there is not and cannot be 
any reciprocity of stipulation, and 



their objects and duties are wholly 
incompatible with everything of 
the nature of a compact. The duty 
of keeping in repair the public 
highways in their respective lim- 
its is imposed on both for the ben- 
efit of the public, without any con- 
sideration or emolument received 
by either. Before the incorpora- 
tion of the town or city the county 
was charged with the duty of keep- 
ing its highways in repair. When 
the town or city becomes incor- 
porated that duty is transferred to 
the town or city, from one govern- 
mental agency to another. The 
object, purpose, reason and charac- 
ter of the duty are the same in both 
cases. This being true, there can be 
no reason why the town or city 
shall be any more liable to a pri- 
vate action for neglect to perform 
this duty than the county previous- 
ly was, unless the statute trans- 
ferring the duty clearly manifests 
an intention in the legislature to 
impose this liability." 



2272 LIABILITY FOR NEGLIGENCE 

ever, in some instances, the suggestion has been made as different 
from all others, that since a municipal corporation proper de- 
rives or has the right to derive a revenue from the use of ita 
streets in the granting of privileges or licenses to quasi public 
corporations or individuals engaged in the business of supplying: 
some public utility, so called, that the duty should be imposed 
upon it of keeping in repair such highways. While it is true 
that the general principle of law exists founded in reason, as it 
has been said: "That where one suffers an injury by the neg- 
lect of any duty or obligation owing him which rests upon an- 
other, the person injured has his action;" yet, the application of 
this principle has, by universal consent, been withheld from the 
sovereign and its properly delegated agencies. 148 The tendency 
to enlarge the liability of municipal corporations in the discharge 
of governmental duties seem to be founded not upon any legal 
principle or ground of public policy, but rather the reverse. A 
public, governmental, or political duty is one which all subordi- 
nate corporations owe to the state or the sovereignty which cre- 
ates them. A private or corporate duty, the basis of liability, is 
a proprietary one due to the individual citizens who may com- 
pose the public corporation and who sustain towards it a position 
analogous to the stockholders or members of a private corpora- 
tion. 

987. The duty to construct or improve. 

The duty to construct or improve public highways is regarded 
as coming within the class of discretionary or legislative duties 
and for a failure to exercise this duty or in some particular re- 
spect there can arise no liability. The rule is applied to all classes 
of public corporations. 149 The reason is apparent. Local govern- 
mental agents are given by the legislature ample and, in many 
eases, exclusive powers to deal with all questions pertaining to 
the construction of public improvements because of their greater 
familiarity and knowledge of local conditions and necessities ami 
further because these are almost universally constructed from 
local taxation. The determination of the necessity or the feasi- 

. 

i4s See 953 et seq., ante. fur, 74 Ky. (11 Bush) 550. See 

1*8 City of Henderson v. Sande- 341 et seq., and 422 et seq. 



988 



LIABILITY FOR NEGLIGENCE. 



2273 



bility of exercising these powers in respect to the subject under 
consideration is clearly a legislative or discretionary one; one 
not only vested in but consequently resting upon the public au- 
thorities and, therefore, no liability can arise for its exercise or 
for a failure to take action. 

988. Character of duty in respect to defective highways. 

The rules to be given in this and following sections apply to 
all corporations upon which the duty rests except as they may be 
modified by local statutes. As it is impossible in this work to 
enter into the necessary detail in this respect, the reader is re- 
ferred to local decisions for a determination of questions arising 
under local laws. The duty required is to keep public highways 
in a reasonably safe and fit condition for ordinary travel by those 
to whom the right is given and who are using them in a proper 
manner or, 150 as stated in another way, the duty is to exercise rea- 
sonable care in maintaining public highways in a safe condition 
for ordinary travel. 151 Under no circumstances or conditions is 
the corporation upon which the duty is imposed to be regarded 
as an insurer. This principle cannot be stated too emphatically. 152 



iso City of Denver v. Cochran, 17 
Colo. App. 72, 67 Pac. 23. 

isi City of Hannibal v. Campbell, 
86 Fed. 297, 30 C. C. A. 63; Bie- 
siegel v. Town of Seymour, 58 
Conn. 43, 19 Atl. 372; Pierce v. 
City of Wilmington, 2 Marv. (Del.) 
306, 43 Atl. 162; City of Colum- 
bus v. Ogletree, 102 Ga. 293; Vil- 
lage of Mansfield v. Moore, 124 111. 
133, 16 N. E. 246; City of Salem v. 
Webster, 192 111. 369, 61 N. E. 323, 
affirming 95 111. App. 120; City of 
Elgin v. Thompson, 98 111. App. 
358; Town of Worthington v. Mor- 
gan, 17 Ind. App. 603, 47 N. E. 235; 
Graham v. Town of Oxford, 105 
Iowa, 705; City of Covington v. 
Bryant, 70 Ky. (7 Bush) 248. The 
rule applies to streets in a city up- 
on which repairs or improvements 
are being made. Merrill v. Inhabi- 
tants of Hampden, 26 Me. 234; 
Abb. Corp. Vol. Ill 19 



Church v. Inhabitants of Cherry- 
field, 33 Me. 460; Blood v. Inhabi- 
tants of Hubbardston, 121 Mass. 233. 
The fact that the defect may have 
been increased through the action 
of the elements will not affect the 
liability of a town. Chilton v. City 
of St. Joseph, 143 Mo. 192; Twist v. 
City of Rochester, 165 N. Y. 619, 59 
N. E. 1131; Bishop v. Schulkill 
Tp. (Pa.) 8 Atl. 449; Moore v. City 
of Richmond, 85 Va. 538, 8 S. E. 
387; Lorence v. City of Ellens- 
burgh, 13 Wash. 341, 43 Pac. 20; 
Sutton v. City of Snohomish, 11 
Wash. 24, 39 Pac. 273; Taylor v. 
City of Ballard, z4 Wash. 191, 64 
Pac. 143; Waggener v. Town of 
Point Pleasant, 42 W. Va. 798, 26 S. 
E. 352; Becker v. City of La Crosse, 
99 Wis. 414, 40 L. R. A. 829. 

152 city of Boulder v. Niles, 9 
Colo. 415, 12 Pac. 632; City of Den- 






2274: LIABILITY FOR NEGLIGENCE. 989 

No;- is it its duty to protect the public against latent defects. 153 
It is bound to exercise reasonable care only in the performance 
of its obligations and this reasonable care is a varying one. Pub- 
lic highways are liable to be used by all classes and conditions of 
men, the young, the old, the vigorous and the weak, at all seasons 
of the year and at all times of the day and night, for different 
kinds of vehicles and different classes of travel. In short, they 
are liable to be used and are used under innumerable and varying 
circumstances. The duty to exercise reasonable care, a negligent 
performance of which may be the basis of a liability, is not, there- 
fore, fixed, absolute and unvarying but one which differs as re- 
quired by changing conditions. 154 

Duty; when absolute. In a special sense the duty, when one 
exists, is absolute, namely, the public corporation is liable for a 
failure to properly perform the duty whether the defect was oc- 
casioned by its own acts or lack of attention or through the de- 
fects of third parties. 155 The fact that a defect may have been 
caused by the act of private persons will afford no defense if it 
is of such a character as to be regarded as a violation of the duty 
imposed in the first instance upon the public authorities. 156 

989. Basis of liability. 

The basis of liability as established by adjudicated cases is de- 
pendent upon the character or nature of the duty unless arbi- 

ver v. Moewes, 15 Colo. App. 28, 60 Whether the use of a bridge by a 

Pac. 986; City of Rock Island v. threshing outfit is an unusual and 

Drost, 71 111. App. 613; City of Chi- extraordinary one so as to exempt 

cago v. McGiven, 78 111. 347; Mag- a county from liability is a ques- 

aha v. City of Hagerstown, 95 Md. tion for the jury. Foster v. Lyon 

2, 51 Atl. 832; Craig v. City of County Com'rs, 63 Kan. 43, 64 Pac. 

Sedalia, 63 Mo. 417; Turner v. City 1037; Brendlinger v. New Hanover 

of Newburg, 109 N. Y. 301, 16 N. E. Tp., 148 Pa. 93, 23 Atl. 1105. Lia- 

344. bility affected by nature of soil. 

inn Wakeham v. St. Clair Tp., 91 Seward v. Town of Milford, 21 Wis. 

Mich. 15, 51 N. W. 696. See 1041, 485. Highways are made to be 

post. traveled by night as well as day. 

is* City of Milledgeville v. Cooley, IBS City of Mt. Carmel v. Black- 

55 Ga. 17; City of Rome v. Dodge, burn, 53 111. App. 658. See, also, 

58 Ga. 2^8. The duty extends to 994, post. 

night travel. Yordy v. Marshall ise Eginoire v. Union County, 112 

County, 80 Iowa, 405, 45 N. W. 1042. Iowa, 558, 84 N. W. 758; City of 



6 90 



LIABILITY FOR NEGLIGENCE. 



2275 



trarily imposed by statute. The duty is supposed to be one which 
appertains to the corporation in its private or corporate capacity 
and which it enjoys for the local advantage and emolument of its 
citizens. It is not one imposed as a governmental or public duty 
except as modified by the principles noted. 

990. Character of highways to which duty applies. 

The duty wherever existing applies only to a public highway 
or street. 157 The importance of the discussion in previous sections 
in respect to the establishment and discontinuance of public high- 
ways will be therefore appreciated. 158 No liability will attach if 
the injury has occurred by reason of a defect in a highway not 
legally established or public in its character. 159 The rule elim- 
inates from a liability all private ways. 160 



Kansas City v. Orr, 62 Kan. 61, 61 
Pac. 397, 50 L. R. A. 783. See, also, 
994, post. 

is? city of New York v. Sheffield, 
71 U. S. (4 Wall.) 189. A city may 
be estopped to deny legal establish- 
ment of highway. Lewman v. An- 
drews, 129 Ala. 170, 29 So. 692; 
City of Atlanta v. Milam, 95 Ga. 
135; Byerly v. City of Anamosa, 79 
Iowa, 204, 44 N. W. 359; Reading 
Tp. v. Telfer, 57 Kan. 798, 48 Pac. 
134; St. Paul & D. R. Co. v. City of 
Duluth, 56 Minn. 494, 58 N. W. 159, 
23 L. R. A. 88; Hunter v. Weston, 
111 Mo. 176, 19 S. W. 1098, 17 L. R. 
A. 633; Boyd v. City of Springfield, 
62 Mo. App. 456; Beaudean v. City 
of Cape Girardeau, 71 Mo. 392; 
Meiners v. City of St. Louis, 130 
Mo. 274, 32 S. W. 637; Lambert v. 
Pembroke, 66 N. H. 280; Donahue 
v. State, 112 N. Y. 142, 19 N. E. 419, 
2 L. R. A. 576; Blair v. Granger, 24 
R. I. 17, 51 Atl. 1042; Nellums v. 
City of Nashville, 106 Tenn. 222, 61 
S. W. 88; City of Waxahachie v. 
Connor (Tex. Civ. App.) 35 S. W. 
692; Still v. City of Houston, 27 



Tex. Civ. App. 447, 66 S. W. 76; 
Whitney v. Town of Essex, 42 Vt. 
520; City of Winchester v. Carroll, 
99 Va. 727, 40 S. E. 37; Brabon v. 
City of Seattle, 29 Wash. 6, 69 Pac. 
365. 

IBS See 423 et seq., and 723 et 
seq., ante. 

159 City of Sandersville v. Hurst, 
11 Ga. 453, 36 S. E. 757; Cochran v. 
Town of Shepherdsville, 19 Ky. L. 
R. 1192, 43 S. W. 250; Ogle v. City 
of Cumberland, 90 Md. 59, 44 Atl. 
1015; Drury v. Inhabitants of Wor- 
cester, 38 Mass. (21 Pick.) 44; Sul- 
livan v. City of Boston, 126 Mass. 
540; Garuett v. City of Slater, 56 
Mo. App. 207; Downend v. Kansas 
City, 156 Mo. 60, 56 S. W, 902, 51 
L. R. A. 170, citing many cases. 
Village of Imperial v. Wright, 34 
Neb. 732, 52 N. W. 374; Veeder v. 
Village of Little Falls, 100 N. Y. 
343; Horey v. Village of Haver- 
straw, 124 N. Y. 273, 26 N. E. 532; 
Kaseman v. Borough of Sunbury, 
197 Pa. 162, 46 Atl. 1032; Brewer 
v. Sullivan County, 199 Pa. 594, 49 
Atl. 259; Blair v. Granger, 24 R. L 




2276 



LIABILITY FOR NEGLIGENCE. 



991 



Discontinuance of highway. Since the liability attaches only 
in case of a legal highway, upon the discontinuance of one there 
is a consequent release from the obligation to maintain in a rea- 
sonably safe condition for ordinary travel. 161 



991. Used portion only. 

The duty applies not only to legally established public high- 
Avays, but further only to that portion of the way which is used 
ordinarily by the public as a traveled way or street. 162 Since the 
duty is a varying one under different conditions, the courts there- 
fore apply a different rule in this regard to city streets as com- 
pared with country or suburban ways and also streets lying in the 
outskirts of an incorporated city or town. 163 The duty to main- 



17, 51 Atl. 1042; Hill v. Laurens 
County, 34 S. C. 141, 13 S. E. 318; 
Page v. Town of Weathersfield, 13 
Vt. 424. But see Gallagher v. City 
of St. Paul, 28 Fed. 305. 

i6 will v. Village of Mendon, 108 
Mich. 251, 66 N. W. 58; Dickinson 
v. Town of Rockingham, 45 Vt. 99. 
But the rule is different where a 
private way is used temporarily as 
a public one. 

ii Nicodemo v. Inhabitants of 
Southborough, 173 Mass. 455, 53 N. 
E. 887; Blodgett v. Town of Royal- 
ton, 17 Vt. 41; Hanley v. City of 
Huntington, 37 W. Va. 578, 16 S. E. 
807; Schuenke v. Town of Pine 
River, 84 Wis. 669, 54 N. W. 1007. 

162 city of Hannibal v. Campbell 
(C. C. A.) 86 Fed. 297; O'Neil v. 
Town of East Windsor, 63 Cotm. 
150, 27 Atl. 237. Question for jury. 
Village of Rankin v. Smith, 63 111. 
App. 522; City of Henderson v. 
White, 20 Ky. L. R. 1525, 49 S. W. 
764; Johnson v. Inhabitants of 
Whitfield, 18 Me. 286; Hunt v. Rich, 
38 Me. 195; Perkins v. Inhabitants 
of Fayette, 68 Me. 152; Brown v. 
Inhabitants of Skowhegan, 82 Me. 



273, 19 Atl. 399; Tasker v. Inhabi- 
tants of Farmingdale, 85 Me. 523, 27 
Atl. 464; Marshall v. Inhabitants 
of Ipswich, 110 Mass. 522; Moran 
v. Inhabitants of Palmer, 162 Mass. 
196, 38 N. E. 442; Keyes v. Village 
of Marcellus, 50 Mich. 439; McAr- 
thur v. City of Saginaw, 58 Mich. 
357; Treise v. City of St. Paul, 36 
Minn. 526, 32 N. W. 857; McHugh 
v. City of St. Paul, 67 Minn. 441, 
70 N. W. 5; Kling v. Kansas City, 
27 Mo. App. 231; Saltmarsh v. 
Bow, 56 N. H. 428; Newell v. Town 
of Stony Point, 59 App. Div. 237, 69 
N. Y. Supp. 583; Potter v. Town of 
Castleton, 53 Vt. 435; Wheeler v. 
Town of Westport, 30 Wis. 392; 
Matthews v. Town of Baraboo, 39 
Wis. 674; Rhyner v. City of Mena- 
sha, 97 Wis. 523, 73 N. W. 41; 
James v. .City of Portage, 48 Wis. 
677. But see Cobb v. Inhabitants 
of Standish, 14 Me. 198; Kelley v. 
Town of Fond du Lac, 31 Wis. 179. 
is Hunter v. Weston, 111 Mo. 
184; Crystal v. City of Des Moines, 
65 Iowa, 502; Lamb v. City of 
Cedar Rapids, 108 Iowa, 629, 79 N. 
W. 366; Fockler v. Kansas City, 94 



991 



LIABILITY FOR NEGLIGENCE. 



2277 



tain in each of these cases being based upon the necessities of the 
public, a public way is established and maintained for the use 
of the community as a means of communication and of ingress 
and egress to adjoining property. The extent and the character 
of the travel resulting from urban or suburban conditions changes 
the measure of care to be applied and consequently, the duty. 164 
What portion must be improved. The subject of the preceding 
paragraph naturally leads to a consideration of the duty of the 
public corporation in respect to the extent of the highway im- 
proved or kept in repair and to which, therefore, its duty will 
apply. This duty varies with the character of the way. 165 A 
suburban road or street in the outlying district of a town or city 
upon which there is light travel, and that infrequently, does not 
require improvement and repair to the same extent so far as sur- 
face is concerned as a street located in the business or central 
part of a city where the traffic is extensive and constant and 
where the public necessities require the use of the entire high- 
way between its extreme limits. The duty, therefore, arises in 
the latter case to improve and keep it in repair to the extent de- 
manded by the public necessities and its liability will be meas- 
ured by the extent of that duty. 166 



Mo. App. 464, 68 S. W. 363; Koss- 
man v. City of St. Louis, 153 Mo. 
293, 54 S. W. 513. 

164 village of Mt. Morris v. 
Kanode, 98 111. App. 373; Fulliam v. 
City of Muscatine, 70 Iowa, 436, 30 
N. W. 861. It is not the duty of a 
city to keep every street safe 
throughout its entire width regard- 
less of location, amount of travel 
or other conditions. City of Mays- 
ville v. Guilfoyle, 23 Ky. L. R. 43, 

62 S. W. 493; Dickey v. Maine Tel. 
Co., 46 Me. 483; Craig v. City of 
Sedalia, 63 Mo. 417; City of Ord v. 
Nash, 50 Neb. 335, 69 N. W. 964; 
McCormick v. City of Amsterdam, 

63 Hun, 632, 18 N. Y. Supp. 272; 
Cassedy v. Town of Stockbridge, 21 
Vt. 391; Sessions v. Town of New- 
port, 23 Vt. 9. 



165 Johnson v. Sioux City, 114 
Iowa, 137, 86 N. W. 212; City of 
Henderson v. Sandefur, 74 Ky. (11 
Bush) 550; Craig v. City of Sedalia, 
63 Mo. 417; Bagley v. Town of Lud- 
low, 41 Vt. 425. 

ice Seward v. Wilmington, 2 
Marv. (Del.) 189, 42 Atl. 451; City 
of Columbus v. Ogletree, 102 Ga. 
293, 29 S. E. 749. The fact that the 
local taxes assessed were insuf- 
ficient to keep the streets in a cer- 
tain district in proper repair is no 
defense. Town of Odon v. Dobbs, 
25 Ind. App. 522, 58 N. E. 562. The 
duty is to keep the streets in a 
reasonable safe condition for travel, 
not alone in the center of the street 
but from curb to curb. Barr v. 
Kansas City, 105 Mo. 550, 16 S. W. 
483; Fritz v. Kansas City, 84 Mo. 




2278 



LIABILITY FOR NEGLIGENCE. 



992 



992. The duty; to whom due. 

A highway is established primarily as a means of communica- 
tion for ordinary travel. The duty, therefore, of keeping it in the 
reasonably safe condition required by law does not operate in 
favor of every one who may be upon or within its limits. 167 Per- 
sons, therefore, who are using a highway for a purpose not con- 
sistent with the true one cannot recover for injuries sustained by 
them. 108 Public ways cannot be used as play grounds 169 for sight- 
seeing, loafing, or similar purposes. 170 The rule as given in a 



632; City of South Omaha v. Powell, 
50 Neb. 798, 70 N. W. 391; Monon- 
gahela City v. Fischer, 111 Pa. 9; 
Musick v. Borough of Latrobe, 184 
Pa. 375, 39 Atl. 226; Whitney v. 
Town of Essex, 38 Vt. 270; Mochler 
v. Town of Shaftsbury, 46 Vt. 580. 

167 Smith v. City of Leavenworth, 
15 Kan. 81; Hawes v. Town of Fox 
Lake, 33 Wis. 438. 

168 Sykes v. Town of Pawlet, 43 
Vt. 446. 

169 Ricketts v. Village of Mark- 
dale, 31 Ont. 180; City of Chicago 
v. Starr, 42 111. 175; City of Indian- 
apolis v. Emmelman, 108 Ind. 530; 
Tighe v. City of Lowell, 119 Mass. 
472; Lyons v. Inhabitants of Brook- 
line, 119 Mass. 491; Hamilton v. 
City of Detroit, 105 Mich. 514, 63 
N. W. 511; Donoho v. Vulcan Iron 
Works, 75 Mo. 401; Jackson v. City 
of Greenville, 72 Miss. 220, 16 So. 
382; City of Omaha v. Richards, 49 
Neb. 244, 68 N. W. 528. Question 
of negligence one for jury. City of 
Omaha v. Bowman, 52 Neb. 293, 72 
N. W. 316, 40 L. R. A. 531. A city 
owes no duty beyond that which de- 
volves on a private owner of prop- 
erty similarly situated to prevent a 
child from playing upon a pond 
created by it on private property. 

Gaughan v. City of Philadelphia, 
119 Pa. 503, 13 Atl. 300; Clark v. 



City of Richmond, 83 Va. 355, 5 S. 
E. 369. But see City of Aurora v. 
Siedelman, 34 111. App. 285; City of 
Waverly v. Reesor, 93 111. App. 649; 
Village of Bath v. Blake, 97 111. App. 
35; City of Chicago v. Keefe, 114 
111. 222. Boy driving hoop. City of 
Elwood v. Addison, 26 Ind. App. 28, 
59 N. E. 47; Graham v. City of Bos- 
ton, 156 Mass. 75, 30 N. E. 170; 
City of Vicksburg v. McLain, 67 
Miss. 4, 6 So. 774; Ramsay v. Na- 
tional Contracting Co., 49 App. Div. 
11, 63 N. Y. Supp. 286; Gibson v. 
City of Huntington, 38 W. Va. 177, 
18 S. E. 447, 22 L. R. A. 561. 

170 Stinson v. City of Gardiner, 42 
Me. 248; Leslie v. City of Lewis- 
ton, 62 Me. 468; Philbrick v. In- 
habitants of Pittston, 63 Me. 477; 
McCarthy v. City of Portland, 67 
Me. 167; Stickney v. City of Salem, 
85 Mass. (3 Allen) 374; McDougal v. 
City of Salem, 110 Mass. 21; Tighe 
v. City of Lowell, 119 Mass. 472; 
Lyons v. Inhabitants of Brookline, 
119 Mass. 491; Hamilton v. City of 
Detroit, 105 Mich. 514, 63 N. W. 
511; Borough of Norristown v. 
Moyer, 67 Pa. 355; Sykes v. Town 
of Pawlet, 43 Vt. 446; Fay v. Kent, 
55 Vt. 557; Clark v. City of Rich- 
mond, 83 Va. 355; Strong v. City of 
Steven's Point, 62 Wis. 255, 22 N. 
W. 425. See, also, 1055, post. 



992 



LIABILITY FOR NEGLIGENCE. 



2279 



recent authority 171 is as follows: "The test to be applied in order 
to determine whether or not an injured person was a traveler at 
the time when he received his injury, so far as any test can be 
laid down, is whether his acts at that time could reasonably be 
regarded as the natural and ordinary incidents of travel upon 
the highway and as consistent with an intention on his part to 
continue upon and over the highway for the usual and proper 
purposes of travel." The question is one of fact ordinarily for 
the jury to determine. "Unless the character of his acts at that 
time make it perfectly clear that he had ceased to use the high- 
way for the proper purposes of travel, in which case it becomes 
the duty of the court to take the case from the jury." 172 Neither 
are public authorities bound to provide against the use of a pub- 
lic highway by unusual or extraordinary vehicles or objects or 
modes of locomotion 173 or unusual loads. 17 * 



it see Mayor & Council of Jack- 
son v. Boone, 93 Ga. 662, 20 S. E. 
i6; Duffy v. City of Dubuque, 63 
Iowa, 171; Smethurst v. Barton 

luare Ind. Cong. Church, 148 
lass. 261, 19 N. E. 387, 2 L. R. A. 
595; Graham v. City of Boston, 156 
lass. 75, 30 N. E. 170; Nesbitt v. 
]ity of Greenville, 69 Miss. 22, 10 
So. 452; Varney v. Manchester, 58 
N. H. 430; McGuire v. Spence, 91 N. 
Y. 303; Reed v. City of Madison, 83 
AVis. 171, 53 N. W. 547, 17 L. R. A. 
733. 

"I Williams, Mun. Liab. Tort, p. 
122. 

172 Williams, Mun. Liab. Tort, p. 
123. Hunt v. City of Salem, 121 
Mass. 294; Hardy v. Keene, 52 N. 
H. 370. 

i Bartlett v. Inhabitants of Kit- 
tery, 68 Me. 358; Heib v. Town of 
Big Flats, 66 App. Div. 88, 73 N. Y. 
Supp. 86. Considering N. Y. Gen. 
Laws c. 19, 154, which provides 
that no town shall be liable for 
damage resulting from the break- 
ing of any bridge by transporta- 



tion of any vehicle or load weigh- 
ing four tons or over. 

Walker v. Village of Ontario, 111 
Wis. 113, 86 N. W. 566. But see 
Yordy v. Marshall County, 80 Iowa, 
405, 45 N. W. 1042. Question for 
jury. Foster v. Lyon County Com'rs, 
63 Kan. 43, 64 Pac. 1037. Thresh- 
ing engine. Gregory v. Inhabitants 
of Adams, 80 Mass. (14 Gray) 242. 
Liability for injury sustained by an 
elephant while being lead through 
a defective highway. 

"4 Lee v. Delaware, L. & W. R. 
Co., 62 App. Div. 624, 71 N. Y. Supp. 
120; Bush v. Delaware, L. & W. R. 
Co., 166 N. Y. 210, 59 N. E. 838, af- 
firming 54 App. Div. 616, 66 N. Y. 
Supp. 1128. Construing highway 
laws 1890, c. 568, 154, exempting 
towns from liability when loads of 
four tons or over use public bridges. 
McCormick v. Washington Tp., 112 
Pa. 185. Steam threshing machine 
and traction engine. Megargee v. 
City of Philadelphia, 153 Pa. 340, 
25 Atl. 1130, 19 L. R. A. 221; Barks- 
dale v. City of Laurens, 58 S. C. 



2230 



LIABILITY 1 OR NEGLIGENCE. 



992 



(a) Unmanageable horses. The duty is not moreover imposed 
for the benefit of runaway teams 175 or those who may be using un- 
manageable horses, 176 those riding or driving at an unusual rate 
of speed, 177 or not driving with ordinary skill and diligence, 178 



413, 36 S. E. 661; Howe v. Town of 
Castleton, 25 Vt. 162; Hawkes v. 
Town of Chester, 70 Vt. 271, 40 Atl. 
727; Welch v. Town of Geneva, 110 
Wis. 388, 85 N. W. 970. 

175 Davis v. Inhabitants of Dud- 
ley,' 86 Mass. (4 Allen) 557; Titus 
v. Inhabitants of Northbridge, 97 
Mass. 258; Fogg v. Inhabitants of 
Nahant, 98 Mass. 578; Howe v. City 
of Lowell, 101 Mass. 99; Bemis v. 
Inhabitants of Arlington, 114 Mass. 
507; Ivory v. Town of Deerpark, 
116 N. Y. 47ft 22 N. E. 1080; Wag- 
ner v. Township of Jackson, 133 Pa. 
61, 19 Atl. 312. Question for jury. 
West Mahoney Tp. v. Watson, 112 
Pa. 574, 3 Atl. 866; Smith v. County 
Court, 33 W. Va. 713; Hungerman 
v. City of Wheeling, 46 W. Va. 761, 
34 S. E. 778; Trexler v. Greenwich 
Tp.. 168 Pa. 214, 31 Atl. 1090; Golds- 
worthy v. Town of Linden, 75 Wis. 
24, 43 N. W. 656. But see Ward v. 
Town of North Haven, 43 Conn. 
148; City of Joliet v. Shufeldt, 144 
111. 403, 32 N. E. 969, 18 L. R. A. 
750, affirming 42 111. App. 208; By- 
erly v. City of Anamosa, 79 Iowa, 
204, 44 N. W. 359; City of Topeka 
v. Tuttle, 5 Kan. 312; Union St. R. 
Co. v. Stone, 54 Kan. 83, 37 Pac. 
1012. 

i76Willey v. Inhabitants of Bel- 
fast, 61 Me. 569. But the rule is 
otherwise if the horse is kind, well 
broken, and in charge of a reasona- 
bly skillful and careful driver. 
Jennings v. Inhabitants of Wayne, 
63 Me. 468; Card v. City of Ells- 
worth, 65 Me. 547; Perkins v. In- 
habitants of Fayette, 68 Me. 152; 



Spaulding v. Inhabitants of Wins- 
low, 74 Me. 528; Richards v. Inhabi- 
tants of Enfield, 79 Mass. (13 Gray) 
344; Babson v. Inhabitants of Rock- 
port, 101 Mass. 93; Kuhn v. Walker 
Tp., 97 Mich. 306; Kingsley v. 
Bloomingdale Tp., 109 Mich. 3.40, 
67 N. W. 333; Glasier v. Town of 
Hebron, 131 N. Y. 447, 30 N. E. 239, 
reversing 62 Hun, 137, 16 N. Y. 
Supp. 503; Jackson Tp. v. Wagner, 
127 Pa. 184, 17 Atl. 903. See, how- 
ever, Wagner v. Jackson Tp., 133 
Pa. 61, 19 Atl. 312. where the ques- 
tion of negligence was held to be 
one for the jury. Worrilow v. Up- 
per Chichester Tp., 149 Pa. 40, 24 
Atl. 85; Schaeffer v. Jackson Tp., 
150 Pa. 145, 24 Atl. 629, 18 L. R. A. 
100; Trexler v. Greenwich Tp., 168 
Pa. 214, 31 Atl. 1090; Brown v. 
Laurens County, 38 S. C. 282, 17 S. 
E. 21; Mason v. Spartanburg Coun- 
ty, 40 S. C. 390, 19 S. E. 15; Jack- 
son v. Town of Bellevieu, 30 Wis. 
250. See, also, 1055, post. But 
see Aldrich v. Inhabitants of Gor- 
ham, 77 Me. 287; Woods v. Inhabi- 
tants of Groton, 111 Mass. 357; 
Gushing v. Inhabitants of Bedford, 
125 Mass. 526; Simons v. Casco Tp., 
105 Mich. 588, 63 N. W. 500; Ivory 
v. Town of Deerpark, 116 N. Y. 476, 
22 N. E. 1080; Kitchen v. Union Tp., 
171 Pa. 145, a3 Atl. 76; Yeaw v. 
Williams, 15 R. I. 20, 23 Atl. 33; 
Houfe v. Town of Fulton, 29 Wis. 
296. 

!" Carswell v. City of Wilming- 
ton, 2 Marv. (Del.) 360, 43 Atl. 169; 
Anderson v. City of Wilmington, 2 
Pen. (Del.) 28, 43 Atl. 841; Me- 



993 



LIABILITY FOR NEGLIGENCE. 



2281 



using modes of locomotion unusual or extraordinary in their 
character ; 179 but a recovery may be had if the act complained of 
as a defense did not in any way contribute to produce the in- 
injury. 180 

(b) Violation of ordinance. The duty also operates in favor 
only of those who are using public ways for lawful purposes and 
in a lawful manner, and if injuries occur by reason of defects to 
those who may be at the time violating some ordinance in respect 
to the use of streets, or otherwise, where the violation directly 
contributes to the injury, they cannot recover. 181 

993. When due. 

The duty to maintain public highways in a reasonably safe con- 
dition for ordinary travel is not only limited in its nature and 
application both in respect to character of the highway and the 
persons using it, but also in connection with the condition when 
the liability will accrue. To entitle one to recover for an injury 
received on account of a defective highway, negligence must be 
shown on the part of the public corporation charged with the 
duty of maintaining the highway in a reasonably safe condition. 



Carthy v. City of Portland, 67 Me. 
167; Heland v. City of Lowell, 85 
Mass. (3 Allen) 407; Mullen v. City 
of Owosso, 100 Mich. 103, 58 N. W. 
63, 23 L. R. A. 693;' Abbott v. Town 
of Wolcott, 38 Vt. 666. But see 
Fernbach v. City of Waterloo 
(Iowa) 34 N. W. 610. 

ITS Adams v. Inhabitants of Car- 
lisle, 38 Mass. (21 Pick.) 146. See 
1055, post. 

179 Gregory v. Inhabitants of 
Adams, 80 Mass. (14 Gray) 242. 
"The obligation of these municipal 
corporations is, not to keep all their 
highways and bridges in the high- 
est possible state of repair, or so as 
to afford the utmost convenience to 
those who have occasion to use 
them. * * * * They are not re- 
quired to make preparations for the 
safety or convenience of those who 



undertake to use those ways in an 
unusual or extraordinary manner, 
involving peculiar and special peril 
and danger, whether it be in re- 
spect to the kind or character of 
animals lead or driven, or the mag- 
nitude or construction of carriages 
used, or the bulk or weight of prop- 
erty transported." 

iso Baker v. City of Portland, 58 
Me. 199; City of Marshal v. McAl- 
lister, 18 Tex. Civ. App. 159, 43 S. 
W. 1043. 

isi Baker v. City of Portland, 58 
Me. 199; Arey v. City of Newton, 
148 Mass. 598, 20 N. E. 327; Mullen 
v. City of Owosso, 100 Mich. 103, 
58 N. W. 66a, 23 L. R. A. 693. But 
see City of Pueblo v. Smith, 3 Colo. 
App. 386, 33 Pac. 685. See, also, 
1056, post. 



2282 



LIABILITY FOR NEGLIGENCE. 



993 



Negligence is the basis of the right to recover. 182 It is not the ex- 
istence of the duty or even of the defect, but negligent action of 
the corporation in respect to the performance of the duty which 
creates the cause of action. 

(a) Special injury. Again, the person injured must not only 
show negligence on the part of the public authorities but further 
a, special injury to himself which is the result of that negli- 
gence. 183 Damage which he may have suffered in common with 
the public or others will not give him the right to recover. 184 

(b) Proximate cause. Negligence must be proven, a special in- 
jury, and further the fact that the breach of the duty complained 
of was the proximate cause of the injury complained of. 185 It is 
sufficient in the greater number of states to establish the failure 
to perform the duty as the proximate cause although there may 
be other causes concurring or contributing to the injury. 186 In 



182 city of Chicago v. Glanville, 
18 111. App. 308; Town of Rushville 
v. Poe, 85 Ind. 83; Patton v. Mont- 
gomery County Com'rs, 96 Ind. 131; 
Davis v. City of Crawfordsville, 119 
Ind. 1; Cooper v. Mills Co., 69 Iowa, 
350, 28 N. W. 633; Graham v. Town 
of Oxford, 105 Iowa, 705, 75 N. W. 
473; Nickols v. Inhabitants of 
Athens, 66 Me. 402; Flanders v. 
Norwood, 141 Mass. 17, 5 N. E. 256; 
Roberts v. City of Detroit, 102 
Mich. 64, 60 N. W. 450, 27 L. R. A. 
572; Medina Tp. v. Perkins, 48 
Mich. 67, 11 N. W. 810; Hunt v. 
Mayor, etc. of New York, 109 N. Y. 
134, 16 N. E. 320; Village of Oak 
Harbor v. Kallagher, 52 Ohio St. 
183, 39 N. E. 144; Lehigh Co. v. 
Hoffort, 116 Pa. 119. 

iss Halsey v. Rapid Transit St. R. 
Co., 47 N. J. Eq. 380, 20 Atl. 859. 
See 952, ante. 

184 Griffin v. Sanbornton, 44 N. H. 
246; Hale v. Town of Weston, 40 
W. Va. 313, 21 S. E. 742. 

iss City of Rockford v. Tripp, 83 
111. 247; City of Vincennes v. 



Thuis, 28 Ind. App. 523, 63 N. E. 
315; Smith v. City of Leavenworth, 
15 Kan. 81; Brown v. Watson, 47 
Me. 161; Moulton v. Inhabitants of 
Sanford, 51 Me. 127; Raymond v. 
City of Haverhill, 168 Mass. 382, 47 
N. E. 101; Kelley v. City of Boston, 
180 Mass. 233, 62 N. E. 259; Davis 
v. Inhabitants of Longmeadow, 169 
Mass. 551; Hembling v. City of 
Grand Rapids, 99 Mich. 292, 58 N. 
W. 310; Smith v. Walker Tp., 117 
Mich. 14, 75 N. W. 141; Butler v. 
Town of Oxford, 69 Miss, 618, 13 
So. 626; Merrill v. Claremont, 58 
N. H. 468; Ehrgott v. City of New 
York, 96 N. Y. 264; Ohl v. Bethle- 
hem Tp., 199 Pa. 588, 49 Atl. 288; 
McGough v. Bates, 21 R. I. 213, 42 
Atl. 873; Hodge v. Town of Ben- 
nington, 43 Vt. 450; Smith v. County 
Court, 33 W. Va. 713, 11 S. E. 1, 8 
L. R. A. 82. See, also, 952, ante, 
and 1059, post. 

i8c Lincoln Tp. v. Koenig, 10 Kan. 
App. 504, 63 Pac. 90; Plymouth Tp. 
v. Graver, 125 Pa. 24, 17 Atl. 249; 
City of San Antonio v. Porter, 24. 



994, 995 LIABILITY FOR NEGLIGENCE. 2283 

some states, however, the rule obtains that the defect complained 
of must not only be the proximate cause but the sole cause of the 
injury 187 and that a concurrent, casual connection of acts of the 
injured one, however slight, will destroy the right to recover 
damages. 188 

994. Same subject; when imposed by statute. 

Liability may accrue when specifically imposed by statute or 
upon the giving of notice of the injury to designated public au- 
thorities, 189 the notice to contain the statement of facts required 
by law, usually recitals in respect to the place and time, 190 the 
nature 191 and the extent of the injury. 192 Statutes of this char- 
acter are strictly construed in favor of the public corporation 
and the right to recover will be lost if the statutory notice is 
not given in the manner and within the time so prescribed. 193 
"When a statute creates a liability against a public corporation 
where none before existed at common law, the rule of strict con- 
struction invariably applies. 

995. Defect occasioned by private persons. 

Where a duty is imposed or exists in respect to the maintenance 
of public ways from defects, the cause of such defects is imma- 
terial. They may be occasioned by the failure of the corporation 

Tex. Civ. App. 444, 59 S. W. 922; Kan. App. 439, 61 Pac. 985; Wilton 

Stickney v. Town of Maidstone, 30 v. City of Flint, 128 Mich. 156, 87 

Vt. 738. N. W. 86; White v. Town of Stowe, 

IST Howe v. City of Lowell, 101 54 Vt. 510. 

Mass. 99; Hawes v. Town of Fox isi Wood v. Borough of Stafford 

Lake, 33, Wis. 438. But see Lund Springs, 74 Conn. 437, 51 Atl. 129; 

v. Inhabitants of Tyngsboro, 65 Farrell v. Inhabitants of Oldtown, 

Mass. (11 Gush.) 563. 69 Me. 72. 

IBS Moulton v. Inhabitants of San- i2 See 485 et seq., ante, and 

ford, 51 Me. 127; Lavery v. Man- 1061 et seq., post. 
Chester, 58 N. H. 444. iss Weber v. Town of Greenfield, 

"City of Denver v. Williams, 12 74 Wis. 234, 42 N. W. 101; Ziegler 

Colo. 475, 21 Pac. 617; Winsor v. v. City of West Bend, 102 Wis. 17, 

Tripp, 12 R. I. 454; Campbell v. 78 N. W. 164. But see Gitchell v. 

Town of Fair Haven, 54 Vt. 336. Andover, 59 N. H. 363. See 1061 

See 1037, and 1061 et seq., post. et seq., post. 

190 City of Ottawa v. Black, 10 



J2S4 



LIABILITY FOR NEGLIGENCE. 



996 



itself or through the acts of third parties. In the latter case 
equally with the former condition the corporation against which 
a liability attaches will be held responsible. 184 

996. Liability arising from construction. 

The duty whenever existing, and a liability from a consequent 
failure to carefully and properly perform it arises, both in respect 
to the construction of the highway with its appurtenances and 
its condition. In the following sections will be considered the 
principles, so far as they can be stated, relating to the construc- 
tion and following these a statement of the law in respect to the 
maintenance or condition of a highway. As stated in a previous 



104 District of Columbia v. Wood- 
bury, 136 U. S. 450; Robbins v. City 
of Chicago, 71 U. S. (4 Wall.) 657; 
District of Columbia v. Sullivan, 11 
App. D. C. 533; Anderson v. City of 
Wilmington, 8 Houst. (Del.) 516, 19 
Atl. 509; Parker v. City of Macon, 

39 Ga. 725; City of Peoria v. Gerber, 
168 111. 318, 48 N. E. 152; Gaff v. 
Hutchinson, 38 Ind. 341; Senhenn 
v. City of Evansville, 140 Ind. 675, 

40 N. E. 69; Town of Centerville v. 
Woods, 57 Ind. 192; City of Evans- 
ville v. Senhenn, 26 Ind. App. 362, 
59 N. E. 86a; Town of Elkhart v. 
Ritter, 66 Ind. 136; Michigan City 
v. Boeckling, 122 Ind. 39, 23 N. E. 
518; Duffy v. City of Dubuque, 63 
Iowa, 171; Fletcher v. City of Ells- 
worth, 53 Kan. 751; Union St. R. 
Co. v. Stone, 54 Kan. 83; Kansas 
City v. Hart, 60 Kan. 684; Paducah 
R. & L. Co. v. Ledsinger, 23 Ky. L. 
R. 441, 63 S. W. 11; Wellcome v. 
Inhabitants of Leeds, 51 Me. 313; 
Hawkes v. Inhabitants of North 
Hampton, 116 Mass. 420; Lawrence 
v. City of New Bedford, 160 Mass. 
227, 35 N. E. 459; Southwell v. City 
of Detroit, 74 Mich. 438, 42 N. W. 
118; Campbell v. City of Stillwater, 
32 Minn. 308; Welsh v. City of St. 



Louis, 73 Mo. 71; Grogan v. Broad- 
way Foundry Co., 87 Mo. 321; Ham- 
ford v. Kansas City, 103 Mo. 172, 15 
S. W. 753; City of Natchez v. 
Shields, 74 Miss. 871, 21 So. 797; 
Sides v. Portsmouth, 59 N. H. 24; 
Davis v. City of Omaha, 47 Neb. 
83,6, 66 N. W. 859; Byrne v. City 
of Syracuse, 79 Hun, 555, 29 N. Y. 
Supp. 912; Masterton v. Village of 
Mt. Vernon, 58 N. Y. 391; McGarry 
v. Loomis, 63 N. Y. 104; Rehberg 
v. City of New York, 91 N. Y. 137; 
McGuire v. Spence, 91 N. Y. 303; 
Bryant v. Town of Randolph, 133 
N. Y. 70, 30 N. E. 657; Pettengill v. 
City of Yonkers, 116 N. Y. 558, 22 
N. E. 1095; City of Zanesville v. 
Fannan, 53 Ohio St. 605, 42 N. E. 
703; Aston Tp. v. McClure, 102 Pa. 
322; Mills v. City of Philadelphia, 
187 Pa. 287, 40 Atl. 821; White v. 
City of San Antonio (Tex. Civ. 
App.) 25 S. W. 1131; McCoull v. 
City of Manchester, 85 Va. 579, 8 
S. E. 379, 2 L. R. A. 691; Raymond 
v. City of Sheboygan, 76 Wis. 335, 
45 N. W. 125; McClure v. City of 
Sparta, 84 Wis. 269, 54 N. W. 337; 
Taake v. City of Seattle, 18 Wash. 
178, 51 Pac. 362. 



997 LIABILITY FOR NEGLIGENCE. 2285- 

section, 105 the duty is a varying one. The existence of the same 
defect either in construction or condition does not necessarily 
lead to the presumption of negligence on the part of the public 
corporation. This must be established as dependent upon the 
facts in each particular instance where a liability is claimed and 
necessarily where there will .be found in the reports numberless 
cases which consider and pass upon particular circumstances. 
No attempt will be made to make an exhaustive citation of au- 
thorities. This is impossible in the space assigned to the subject 
in this work. 

997. Defective plan. 

The law seems to be well established, as stated in sections 959 
et seq., that ordinarily no liability follows from the adoption of 
a reasonable plan of sewage or drainage devised by reasonably, 
competent and skillful officials or engineers. In respect to the 
adoption of a plan for the establishment or improvement of high- 
ways, the law is not so clearly settled and there will be found 
conflicting cases. 196 Some hold that where a plan for the estab- 
lishment or improvement of a highway has been devised by care- 
ful and reasonably competent officials or employes which is de- 
fective and by reason of such defects injuries occur, that no lia- 
bility will follow. 197 The adoption of the plan is held to be a 
legislative or a discretionary act requiring the application of 
judgment that, therefore, the usual rule of law applies which per- 

195 See 988, ante. 131, 48 N. E. 328; Gould v. City of 

196 Hughes v. City of Baltimore, Topeka, 32 Kan. 485. If the plan is 
Tournay, 243. Fed. Cas. No. 6,844. manifestly and unquestionably dan- 
See, also, cases cited in the follow- gerous and unsafe a city is liable 
ing three notes. but not otherwise. Lincoln Tp. v. 

197 Northern Transp. Co. v. City Koenig, 10 Kan. App. 504, 63 Pac. 
of Chicago, 99 TJ. S. 635. A city is 90. Question for jury. Toolan v. 
not liable for consequent damages City of Lansing, 38 Mich. 315; Fos- 
caused by the proper construction ter v. City of St. Louis, 71 Mo. 157; 
of a tunnel lawfully authorized. Rhinelander v. City of Lockport, 60 
Johnston v. District of Columbia, Hun, 582, 14 N. Y. Supp. 850; 
118 TJ. S. 19; Bannagan v. District Schreiber v. City of New York, 11 
of Columbia, 2 Mackey (D. C.) 285; Misc. 551, 32 N. Y. Supp. 744; Ur- 
Sievers v. City & County of San quhart v. City of Ogdensburg, 91 
Francisco, 115 Cal. 648, 47 Pac. 687; N. Y. 67; Alexander v. Brady, 61 
English v. City of Danville, 170 111. Ohio St. 174, 55 N. E. 173. 



2286 LIABILITY FOR NEGLIGENCE. 098 

tains ordinarily to acts of this character. 198 On the other hand, 
it might be said the weight of authority sustains the doctrine that 
if injuries occur through the adoption of a defective plan of im- 
provement provided the other essentials of actionable negligence 
are to be found, a liability follows. 199 A legal reason for the dis- 
tinction between sewers and highways does not clearly appear. 
It is held by some authorities that the construction, and by this 
term is now meant all steps preliminary to actual work, of both 
sewers, drains and highways, is a municipal or local duty, a fail- 
ure to properly perform which will lead to corresponding liabil- 
ity. Some authorities place in the list of municipal, corporate or 
local duties the construction of highways but not that of sewers 
or drains imposing a liability in respect to the form and permit- 
ting an exemption in the case of the latter. The distinction is 
more interesting than substantial for the authorities are well di- 
vided along these lines. 200 

998. Work of construction or repair. 

While the adjudications are not uniform as to the precise char- 
acter which should be ascribed to the adoption of a plan of im- 
provement of public highways there is no doubt that the actual 
work of construction of the improvement or the making of repairs 
is regarded as a ministerial act. 201 If it is negligently performed, 

iss City of Peru v. Brown, 10 Ind. Collett v. City of New York, 51 App. 

App. 597, 38 N. E. 223; Champion Div. 394, 64 N. Y. Supp. 693. See, 

v. Town of Crandon, 84 Wis. 405, also, Borough of Norristown v. 

54 N. W. 775, 19 L. R. A. 856. Moyer, 67 Pa. 365. Also, note, 51 

IBS Kane v. City of Indianapolis, Cent. Law J. 185. But see Heiss v. 

82 Fe;l. 770; City of Springfield -v. City of Lancaster, 203 Pa. 260, 52 

Le Claire, 49 111. 476; City of Chi- Atl. 201. A failure to bridge over 

cago v. Seben, 165 111. 371, 46 N. E. a gutter not a negligence. 

244; City of North Vernon v. Voeg- 200 judge v. City of Menden, 38 

ler, 103 Ind. 314; Smith v. City of Conn. 90; Bigelow v. Inhabitants of 

Pella, 86 Iowa, 236; Sawyer v. City Randolph, 80 Mass. (14 Gray) 541; 

of Newburyport, 157 Mass. 430, 32 Bates v. Inhabitants of Westbor- 

N. E. 653;' Blyhl v. Village of Wat- ough, 151 Mass. 174, 23 N. E. 1070, 

erville, 57 Minn. 115, 58 N. W. 817; 7 L. R. A. 156; Donovan v. New 

Monk v. Town of New Utrecht, 104 York Board of Education, 85 N. Y. 

N. Y. 552, 11 N. E. 268; Requa v. 117; Gilman v. Town of Laconia, 

City of Rochester, 45 N. Y. 129; 55 N. H. 130. 

Lehmann v. City of Brooklyn, 30 201 Nevins v. City of Peoria, 41 

App. Div. 305, 51 N. Y. Supp. 524; 111. 502; Delphi v. Evans, 36 Ind. 



3 999 LIABILITY FOR NEGLIGENCE. 2287 

therefore, and one receives an injury by reason of this fact, a lia- 
bility will attach for the special damages which may be proxi- 
mately caused by the negligent performance of the duty to care- 
fully and skillfully construct. 202 The obligation also attaches 
during the progress of repairs. 203 

999. Change of grade or taking of property. 

Through a change of grade, under lawful authority, damages 
to private property direct or consequential may follow. The 
question of a liability, whether statutory or otherwise, has been 
fully considered in sections 810* et seq., to which reference is 
made. 

Taking of or injury to property. The principle of law uni- 
versally obtains that private property cannot be taken for public 
use without the payment of just compensation, first had or re- 
ceived, the word "taken" receiving such a broad construction as 
to include the right to recover for injuries to property rights less 
than an actual physical taking. The subject of eminent domain 
which includes a discussion of the meaning of these words and 
phrases has been previously considered in sections 743 et seq. 
Constitutional provisions also protect private property rights 
against seizure or injury without due process of law. These 
fundamental principles prohibit all classes or grades of public 
corporations from taking or injuring private property in the con- 
struction or improvement of public highways without the pay- 
ment of just compensation or without due process of law. If, 

90; Town of Princeton v. Gieske, 93 Atl. 826; Gilman v. Town of La- 

Ind. 102; Perry v. City of Worces- conia, 55 N. H. 130; Keating v. 

ter, 72 Mass. (6 Gray) 544; Nichols City of Cincinnati, 38 Ohio St. 141. 
v. City of St. Paul, 44 Minn. 494, 47 203 Robbins v. City of Chicago, 71 

N. W. 168; Davis v. City of Jack- TJ. S. (4 Wall.) 657; Mulligan v. 

son, 61 Mich. 530, 28 N. W. 526; City of New Britain, 69 Conn. 96, 

Lacour v. City of New York, 10 N. 36 Atl. 1005; Jones v. Collins, 177 

Y. Super. Ct. (3 Duer) 406; Bor- Mass. 444, 59 N. E. 64; Beattie v. 

ough of Easton v. Neff, 102 Pa. 474; City of Detroit, 129 Mich. 20, 88 N. 

Crossett v. City of Janesville, 28 W. 71; Ray v. City of Poplar Bluff, 

Wis. 420. 70 Mo. App. 252; Sauthof v. 

202 City of Durango v. Luttrell, 18 Granger, 19 R. I. 606, 35 Atl. 300. 

Colo. 123, 31 Pac. 853; Templin v. But see Mills v. City of Philadel- 

lowa City, 14 Iowa, 59; Hitchins v. phia, 187 Pa. 287, 40 Atl. 821. 
Town of Frostburg, 68 Md. 100, 11 



LIABILITY FOR NEGLIGENCE. 



1000' 



therefore, they in their construction or maintenance destroy, take 
or injure 204 private property, whether this is done in the adoption 
of the plan or in the actual work involved in the making of the 
improvement, they will be held liable for the damages sustained. 205 

1000. Surface water injuries from plan or construction. 

Many of the adjudicated cases are based upon a defective plan 
or construction of a highway which causes injury to private prop- 
erty through the accumulation or the diversion of surface waters. 
These for purposes of convenience are cited under this sec- 
tion. Where surface waters are collected in unusual quantities 20e 
or diverted and discharged 207 upon private property to its injury 



204 Long v. City of Elberton, 109 
Ga. 28, 34 S. E. 333, 46 L. R. A. 428. 
The mere erection of a prison with- 
in the city limits is not an invasion 
of the property rights of adjacent 
owners and no liability will follow. 
Barfield v. Macon County, 109 Ga. 
386, 34 S. E. 596; Fiske Wharf & 
Warehouse Co. v. City of Boston, 
178 Mass. 526, 60 N. E. 7; Worces- 
ter Gas Light Co. v. County Com'rs, 
138 Mass. 289; Town Council of 
Akron v. McComb, 18 Ohio, 229. 

205 City of Bloomington v. Bro- 
kaw, 77 111. 194; Kemper v. City of 
Louisville, 77 Ky. (14 Bush) 87; 
Inman v. Tripp, 11 R. I. 520. 

200 Stanford v. City & County of 
San Francisco, 111 Gal. 198, 43 Pac. 
605; Phinizy v. City of Augusta, 47 
Ga. 260; City of Elgin v. Welch, 16 
111. App. 483. The right of recovery 
follows the title to the premises in- 
jured. City of Alton v. Hope, 68 
111. 167; Roll v. City of Indianapolis, 
52 Ind. 547; Town of Thorntown v. 
Fugate, 21 Ind. App. 537, 52 N. E. 
763; Murphy v. City of Indianapolis, 
83 Ind. 76; Town of Sullivan v. 
Phillips, 110 Ind. 320; City of Louis- 
ville v. Seifert, 21 Ky. L. R. 328, 



51 S. W. 310; Schuett v. City of 
Stillwater, 80 Minn. 287, 83. N. W. 
180. It is the duty of the city to 
take care of surface water so as to 
avoid injury to private property, ac- 
cumulated because of street grad- 
ing, when this can be done and at 
a reasonable expense. Carson v. 
City of Springfield, 53 Mo. App. 
289; Bowman v. City of Omaha, 59 
Neb. 84, 80 N. W. 259. Liability 
for death of child in pond partly 
within the city street. Schumacher 
v. City of New York, 166 N. Y. 103, 
59 N. E. 773; City of Comanche v.. 
Zettlemoyer (Tex. Civ. App.) 40 S.. 
W. 641; Powell v. Town of Wythe- 
ville, 95 Va. 73, 27 S. E. 805; Spel- 
man v. City of Portage, 41 Wis. 144. 
But see Collins v. City of Waltham, 
151 Mass. 196, 24 N. E. 327; Rycn- 
licki v. City of St. Louis, 115 Mo. 
662, 22 S. W. 908. See, also, 977' 
et seq., ante. 

207 Arndt v. City of Cullman, 132 
Ala. 540, 31 So. 478; Geurkink v. 
City of Petaluma, 112 Cal. 306, 4*> 
Pac. 570; Aicher v. City of Denver, 
10 Colo. App. 413, 52 Pac. 86; Ivey 
v. City of Macon, 102 Ga. 141; City 
of Peoria v. Crawl, 28 111. App. 154,. 



1001 LIABILITY FOR NEGLIGENCE. 2289 

by reason of the negligent construction or plan of an improve- 
ment, a liability will follow. A distinction seems to be made in 
this line of cases between an accumulation and diversion and a 
mere shifting of the flow of surface waters as they ordinarily 
gather upon the surface of the ground. In the latter case no lia.- 
bility seems to result. 208 

1001. Duty in respect to maintenance of public highways. 

By far the greater number of decided cases relate to defects 
arising from a negligent maintenance or repair of public high- 
ways. Attention is again called to the duty of the public corpora- 
tion. It is not that of an insurer; it varies under different condi- 
tions and circumstances. It is not an absolute or an unvarying 
one ; it is simply the duty to keep in a reasonably safe condition 
for ordinary travel the public ways for the use of those having 
the right and exercising the privilege of travel. It is affected by 
the character and extent of travel, the age or condition of the 
traveler, the purpose for which used, the extent of use, the means 
at the disposition of the corporation for the purpose of repair or 
improvement, 209 questions of proximate cause, 210 notice to the cor- 
poration, 211 contributory negligence, 212 special injury to the one 

City of Aurora v. Reed, 57 111. 29; 56 Vt. 522. See, also, 977 et seq., 

City of Effingham v. Surrells, 77 ante. 

111. App. 460; City of New Albany 203 Downs v. City of Ansonia, T6 

v. Lines, 21 Ind. App. 380, 51 N. E. Conn. 33, 46 Atl. 243; City of At- 

346; Rice v. City of Flint, 67 Mich. lanta v. Word, 78 Ga. 276; Hirth v. 

401, 34 N. W. 719; Pye v. City of City of Indianapolis, 18 Ind. App. 

Mankato, 36 Minn. 373, 31 N. W. 673, 48 N. E. 876; Hoffman v. City 

863; Taubert v. City of St. Paul, 68 of Muscatine, 113 Iowa, 332, 85 N. 

Minn. 519; Barnes v. City of Hanni- W. 17; Alden v. Minneapolis, 24 

bal, 71 Mo. 449; City of Beatrice v. Minn. 254; Imler v. City of Spring- 

Leary, 45 Neb. 149; Andrews v. field, 55 Mo. 119; Cannon v. City 

Village of Steele City, 2 Neb. of St. Joseph, 67 Mo. App. 367; 

Unoff, 676, 89 N. W. 739; McCarthy Rutherford- v. Village of Holley, 105 

v. Village of Far Rockaway, 3, App. N. Y. 632, 11 N. E. 818; Heth v. 

Div. 379, 38 N. Y. Supp. 989; Schu- City of Fond du Lac, 63 Wis. 228. 

macher v. City of York, 166 N. Y. 200 See 1031 and 1060, post. 

103, 59 N. E. 773; Bohan v. Avoca 210 see 952, ante, and 993, and 

Borough, 154 Pa. 404, 26 Atl. 604; 1059, post. 

City of Houston v. Bryan, 21 Tex. 211 See 1033 et seq., post. 

Civ. App. 553, 22 S. W. 231. But 212 See 1043 et seq., post, 
see Noble v. Village of St. Albans, 
Abb. Corp. Vol. Ill 20. 



2290 LIABILITY FOR NEGLIGENCE. 1002 

claiming damages, 213 whether the way is urban or suburban and 
others which have been or will be suggested in the preceding and 
following sections. As already stated, the decisions are many 
and a few only of the leading and latest authorities will be cited. 

1002. Lights. 

The lighting of streets or highways is commonly regarded as a 
governmental duty of a discretionary character and no absolute 
obligation, therefore, rests upon a public corporation to perform 
it. 214 Where a municipality has undertaken the lighting of public 
ways or is specifically charged with the duty in some cases it has 
been held liable for a failure to light them in the usual manner. 215 
The modifications of the rule first stated in the section are not im- 
portant or usual and if such a duty should be held as existing, it 
is in common with others affected by the considerations named in 
the preceding section. What will be regarded as an insufficient 
or negligent lighting of a business street in a densely populated 
city would be considered as more than necessary in respect to a 
street in an outlying district of the same city or an urban high- 
way. 216 If repairs or improvements are being made or obstruc- 
tions left in the street, the public should be warned against the 
dangerous place by suitable lights or other means. 217 

*is See 952 and 993, ante. York, 51 App. Div. 394, 64 N. Y. 

214 City of Halifax v. Lordly, 20 Supp. 693 ; Canavan v. City of Oil 
an. Sup. Ct. R. 505; Oliver v. City City, 183 Pa. 611, 38 All. 1096; City 
-of Denver, 13 Colo. App. 345, 57 of Winchester v. Carroll, 99 Va. 727, 

Pac. 729; Gaskins v. City of At- 40 S. E. 37. 

lanta, 73 Ga. 746; City of Vin- 216 City of Columbus v. Sims, 94 

cennes v. Thuis, 28 Ind. App. 523, Ga. 483, 20 S. 322; City of Chicago 

'63 N. E. 315; Randall v. Eastern R. v. Apel, 50 111. App. 133; City of Chi- 

Co., 106 Mass. 276; Lyon v. City of cago v. McDonald, 57 111. App. 250; 

Cambridge, 136 Mass. 419; Van Wie v. City of Mount Vernon, 

'O'Rourke v. City of New York, 17 26 App. Div. 330, 49 N. Y. Supp. 77!; 

App. Div. 349, 45 N. Y. Supp. 261; O'Rourke v. City of Sioux Falls, 4 

Monongahela City v. Fischer, 111 S. D. 47, 54 N. W. 1044, 19 L. R. 

Pa. 9. A. 789. 

215 City of Freeport v. Isbell, 83 21- King v. City of Cleveland, 28 
111. 440; City of Chicago v. Baker, Fed. 835; City of Indianapolis v. 
195 111. 54, 62 N. E. 892; McHugh Marold, 25 Ind. App. 428, 58 N. E. 
v. City of St. Paul, 67 Minn. 441, 70 512; Kansas City v. Birmingnam, 
N. W. 5; Collett v. City of New 45 Kan. 212, 25 Pac. 569; Kimball 



1003 LIABILITY FOR NEGLIGENCE. 2291 

1003. Barriers and railings. 

The duty is also imposed in many instances of maintaining bar- 
riers and railings as a means of protection to travelers in danger- 
ous places, 218 embankments, 219 approaches to or on bridges, 220 or 



v. City of Bath, 38 Me. 219; City of 
Baltimore v. O'Donnell, 53 Md. 110; 
Powers v. City of Boston, 154 Mass. 
60, 27 N. E. 995; Walker v. City of 
Ann Arbor, 111 Mich. 1, 69 N. W. 
87; Baker v. City of Grand Rapids, 
111 Mich. 447, 69 N. W. 740. Negli- 
gence, question for jury. Miller v. 
City of St. Paul, 38 Minn. 134, 36 
N. W. 271; Davenport v. City of 
Hannibal, 108 Mo. 471, 18 S. W. 
1122; Village of Seneca Falls v. 
Zalinski, 8 Hun (N. Y.) 571; Van 
Vranken v. Village of Clifton 
Springs, 86 Hun, 67, 33 N. Y. Supp. 
329; Snowden v. Town of Somerset, 
171 N. Y. 99, 63 N. E. 952; Foy v. 
City of Winston, 126 N. C. 381, 35 
S. E. 609. See 1003, post. 

zisRobbins v. Chicago City, 71 U. 
S. (4 Wall.) 657; City of Chicago v. 
McDonald, 57 111. App. 250; City of 
Chicago v. Baker, 95 111. App. 413; 
Town of Worthington v. Morgan, 
17 Ind. App. 603; Wetmore Tp. v. 
Chamberlain, 64 Kan. 327, 67 Pac. 
845. Bridge while being repaired. 
Wakeham v. St. Glair Tp., 91 Mich. 
15, 51 N. W. 696; Pratt v. Amherst, 
140 Mass. 167. Question for jury. 
Lineburg v. City of St. Paul, 71 
Minn. 245, 73 N. W. 723; City of 
Ord v. Nash, 50 Neb. 335; Tomp- 
kins v. City of Oswego, 61 Hun, 
619, 15 N. Y. Supp. 371; Coney v. 
Town of Gilboa, 55 App. Div. Ill, 
67 N. Y. Supp. 116. Question for 
jury. Lane v. Town of Hancock, 
142 N. Y. 510, 37 N. E. 473. The 
financial ability of a town is ma- 
terial. Wellman v. Borough of Sus- 



quehanna Depot, 167 Pa. 239, 31 Atl. 
566; Trexler v. Greenwich Tp., 168 
Pa. 214, 31 Atl. 1090; Davis v. Sny- 
der Tp., 196 Pa. 273, 46 Atl. 301; 
City of San Antonio v. Porter, 24 
Tex. Civ. App. 444, 59 S. W. 922; 
Peacock v. City of Dallas, 89 Tex. 
438; Orme v. City of Richmond, 79 
Va. 86. But see Beardsley v. City 
of Hartford, 50 Conn. 529; Scannal 
v. City of Cambridge, 163 Mass. 91, 
39 N. E. 790; City of Denison v. 
Warren (Tex. Civ. App.) 36 S. W. 
296; Hein v. Village of Fairchild, 87 
Wis. 258. 

219 City of Mancnester v. Eric- 
son, 105 U. S. 347. Question for 
jury. City of Wyandotte v. Gibson, 
25 Kan. 236; Woods v. Inhabitants 
of Groton, 111 Mass. 357; Malloy v. 
Walker Tp., 77 Mich. 448, 43 N. W. 
1012, 6 L. R. A. 695; Bryant v. 
Town of Randolph, 60 Hun, 581, 14 
N. Y. Supp. 844. Question for jury. 
Glasier v. Town of Hebron, 82 
Hun, 311, 31 N. Y. Supp. 236. Where 
a highway is seventeen feet wide 
and level, no barrier is required. 
Kitchen v. Union Tp., 171 Pa. 145, 
33 Atl. 76. But see Knowlton v. 
City of Augusta, 84 Me. 572, 24 Atl. 
1039; Logan v. City of New Bed- 
ford, 157 Mass. 534, 32 N. E. 910; 
Waller v. Town of Hebron, 5 App. 
Div. 577, 39 N. Y. Supp. 381; 
Patchen v. Town of Walton, 17 App. 
Div. 158, 45 N. Y. Supp. 145. 

220 City of Chicago v. Wright, 68 
111. 586; Van Winter v. Henry Coun- 
ty, 61 Iowa, 684; Faulk v. Iowa 
County, 103 Iowa, 442, 72 N. W. 



2292 



LIABILITY FOR NEGLIGENCE. 



in the vicinity of excavations, 221 or while repairs are being 
made. 222 The duty it must be remembered, however, is a varying 
one and no rule can be stated which will apply to all conditions or 
under all circumstances. A liability does not ordinarily attach 
for a failure to maintain barriers and railings of such a character 
or in such a place to guard against accidents occurring by reason 
of unmanageable, runaway, or frightened horses, 223 or where 
there is no dangerous place near enough to be reached without 
straying. 224 



757; City of Rosedale v. Golding, 
55 Kan. 167, 40 Pac. 284; Hand v. 
Inhabitants of Brookline, 126 Mass. 
324; Lauder v. St. Clair Tp., 125 
Mich. 479, 85 N. W. 4; Grant v. 
City of Brainerd, 86 Minn. 126 90 
N. W. 307; Norris v. Litchfield, 35 
N. H. 271; Pelkey v. Town of Sara- 
nac, 67 App. Div. 337, 73 N. Y. Supp. 
493; Strader v. Monroe County, 202 
Pa. 626, 51 All. 1100; Gulf, C. & S. 
F. R. Co. v. Sandifer, 29 Tex. Civ. 
App. 356, 69 S. W. 461; Fidelity & 
Casualty Co. v. City of Seattle, 16 
Wash. 445, 47 Pac. 963. But see 
Moody v. Town of Bristol, 71 Vt. 
473, 45 All. 1038. 

221 City of Chicago v. Baker, 195 
111. 54, 62 N. E. 892; Puffer v. In- 
habitants of Orange, 122 Mass. 389. 
But the dangerous place must be 
near the highway. Noll v. City of 
Seattle, 29 Wash. 28, 69 Pac. 382. 
But see Goodin v. City of Des 
Moines, 55 Iowa, 67. 

222 D'Amico v. City of Boston, 176 
Mass. 599, 58 N. E. 158; Jones v. 
Collins, 177 Mass. 444, 59 N. E. 64; 
Cartwright v. Town of Belmont, 58 
Wis. 370. 

223 city of Hannibal v. Campbell 
(C. C. A.) 86 Fed. 297; Swart v. 
District of Columbia, 17 App. D. C. 
407; City of Rockford v. Russell, 9 
111. App. 229. Question for jury. 
Moss v. City of Burlington, 60 Iowa, 



438 ; Hudson v. Inhabitants of Marl- 
borough, 154 Mass. 218, 28 N. E. 
147; Richardson v. City of Boston, 
156 Mass. 145, 30 N. E. 478; Cook v. 
City of Charlestown, 98 Mass. 80; 
Higgins v. City of Boston, 148 Mass. 
484, 20 N. E. 105; Tisdale v. Town 
of Bridgewater, 167 Mass. 248. 
Question for jury. Stacy v. Town of 
Phelps, 47 Hun (N. Y.) 54; Hubbell 
v. City of Yonkers, 104 N. Y. 434, 
10 N. E. 858; Glasier v. Town of 
Hebron, 131 N. Y. 447, 30 N. E. 
239, 579, reversing 62 Hun, 137, 
16 N. Y. Supp. 503; Borough of 
Pittston v. Hart, 89 Pa. 389; Heister 
v. Fawn Tp., 189 Pa. 253, 42 Atl. 
121; City of San Antonio v. Porter, 
24 Tex. Civ. App. 444, 59 S. W. 922; 
Gulf, C. & S. F. R. Co. v. Sandifer, 
29 Tex. Civ. App. 356, 64 S. W. 461. 
But see Ward v. Town of Nortb 
Haven, 43 Conn. 148; Wilson v. City 
of Atlanta, 60 Ga. 473; City of Dan- 
ville v. Makemson, 32 111. App. 112; 
Hinckley v. Town of Somerset, 145 
Mass. 326, 14 N. E. 166; Stone v. 
Inhabitants of Hubbardston, 100 
Mass. 49; Hey v. City of Philadel- 
phia, 81 Pa. 44; White v. City of 
Ballard, 19 Wash. 284, 53 Pac. 159; 
Taylor v. City of Ballard, 24 Wash. 
191, 64 Pac. 143; Olson v. City of 
Chippewa Falls, 71 Wis. 558, 37 N. 
W. 575. 

224 Warner v. Inhabitants of Holy- 



LIABILITY FOR NEGLIGENCE. 



2293 



1004. Obstructions. 

The duty to maintain public highways in a reasonably safe con- 
dition for proper and ordinary travel includes the obligation to 
keep them free from unnecessary and unlawful obstructions. 225 
It is not every actual obstruction, however, in a highway which 
constitutes a defect sufficient to create a cause of action. There 
are many objects necessarily placed or standing within the lim- 
its of a highway that are regarded as necessary obstructions, and 



oke, 112 Mass. 3.62. Question for 
jury. Puffer v. Inhabitants of Or- 
ange, 122 Mass. 389; Daily v. City 
of Worcester, 131 Mass. 452; De- 
hanitz v. City of St. Paul, 73 Minn. 
385, 76 N. W. 48; Goeltz v. Town of 
Ashland, 75 Wis. 642, 44 N. W. 770. 
225 city of New York v. Sheffield, 
71 U. S. (4 Wall.) 189; City of 
Cleveland v. King, 132 U. S. 295; 
District of Columbia v. Boswell, 6 
App. D. C. 402. Gas box on side- 
walk. City of Birmingham v. Tay- 
loe, 105 Ala. 170, 16 So. 576; Ander- 
son v. City of Wilmington, 2 Pen. 
(Del.) 28, 43 Atl. 841; Michigan 
City v. Boeckling, 122 Ind. 39, 23 N. 
E. 518; Rowel v. Williams, 29 Iowa, 
210; Herries v. City of Waterloo, 
114 Iowa, 374, 86 N. W. 306; Osage 
City v. Larkin, 40 Kan. 206, 19 Pac. 
658, 2 L. R. A. 56; City of Hender- 
son v. Burke, 19 Ky. L. R. 1781, 44 
S. W. 422; City of Glasgow v. Gill- 
enwaters, 23 Ky. L. R. 2375, 67 S. 
W. 381 ; Clark v. Inhabitants of Le- 
banon, 63 Me. 393; Farrell v. Inhab- 
itants of Oldtown, 69 Me. 72; Tilton 
". Inhabitants of Wenham, 172 
Mass. 407, 52 N. E. 514; Pratt v. In- 
nabitants of Cohasset, 171 Mass. 
188, 59 N. E. 79; Talbot v. Taunton, 
i ! -40 Mass. 552; Sebert v. City of 
Upena, 78 Mich. 165, 43 N. W. 1098. 
ttump in highway. Hayes v. City 
,'f West Bay City, 91 Mich. 418, 51 




N. W. 1067. The failure to properly 
light a building being moved cre- 
ates a liability. McCool v. City of 
Grand Rapids, 58 Mich. 41; Lang- 
worthy v. Green Tp., 88 Mich. 207, 
50 N. W. 130; Gerdes v. Christopher 
& Simpson Architectural Iron & 
Foundry Co. (Mo.) 27 S. W. 615. 
It is actionable negligence as a 
matter of law for a manufacturer to 
obstruct for weeks the street in 
front of his premises for the pur- 
pose of receiving and discharging 
goods. 

Fairgrieve v. City of Moberly, 3,9 
Mo. App. 31; May v. City of Ana- 
conda, 26 Mont. 140, 66 Pac. 759; 
Downes v. Town of Hopkinton, 67 
N. H. 456; Kunz v. City of Troy, 104 
N. Y. 344, 10 N. E. 442. Counter 
placed on a sidewalk. Wilson v. 
Town of Spafford, 57 Hun, 589, 10 
N. Y. Supp. 649. Pile of stones. 
Shook v. City of Cohoes, 108 N. Y. 
648, 15 N. E. 531; Gulliver v. Blau- 
velt, 14 App. Div. 523, 43 N. Y. Supp. 
935. Cow tethered in highway. Em- 
bler v. Town of Wallkill, 132 N. Y. 
222, 30 N. E. 404; Farley v. City of 
New York, 152 N. Y. 222, 46 N. E. 
506; Dillon v. City of Raleigh, 124 
N. C. 184; Heckman v. Evenson, 7 
N. Dak. 173, 73 N. W. 427. Ques- 
tion for jury. Schaeffer v. Jackson 
Tp., 150 Pa. 145, 24 Atl. 629, 18 L. 
R. A. 100; Trego v. Honeybrook 



2294 



LIABILITY FOR NEGLIGENCE. 



1004 



injuries caused by them can create no liability. 226 Shade trees, 227 



Borough, 160 Pa. 76, 28 Atl. 639. 
Stump. City of Galveston v. Gon- 
zales, 6 Tex. Civ. App. 538, 25 S. TV. 
978. Lumber pile. City of Pales- 
tine v. Hassell, 15 Tex. Civ. App. 
519, 40 S. W. 147; City of Peters- 
burg v. Todd (Va.) 24 S. E. 232; 
Saylor v. City of Montesano, 11 
Wash. 328, 39 Pac. 653; Adams v. 
City of Oshkosh, 71 Wis. 49, 36 N. 
W. 614; Prideaux v. City of Mineral 
Point, 43 Wis. 513; Slivitzki v. 
Town of Wien, 93 Wis. 460, 67 N. 
W. 730; Bills v. Town of Kaukauna, 
94 Wis. 310, 68 N. W. 992. Wire 
fence.' Carpenter v. Town of Roll- 
lug, 107 Wis. 559, 83 N. W. 953; 
Raymond v. Keseberg, 84 Wis. 302, 
19 L. R. A. 643; Boltz v. Town of 
Sullivan, 101 Wis. 608. But see 
Simon v. City of Atlanta, 67 Ga. 
618; Sin Clair v. City of Baltimore, 
59 Md. 592. 

Bowes v. City of Boston, 155 
Mass. 344, 29 N. E. 633, 15 L. R. A. 
365. City not liable for accident 
caused by horses taking fright at 
the scraping sound of a vehicle 
against a stone in the road. Agnew 
v. City of Corunna, 55 Mich. 428. 
Boulder temporarily on highway not 
regarded as a defect. Jackson Tp. 
v. Wagner, 127 Pa. 184, 17 Atl. 903; 
Cairncross v. Village of Pewaukee, 
86 Wis. 181, 56 N. W. 648. Steam 
launch in street. As to liability 
for damages caused by obstructions 
In a highway placed by private per- 
sons or the elements, see the fol- 
lowing: Frost v. Inhabitants of 
Portland, 11 Me. 271; Willard v. 
City of Cambridge, 85 Mass. (3 
Allen) 574; Griffin v. Sanbornton, 
44 N. H. 246. But see District of 
Columbia v. Moulton, 182 U. S. 576. 
"No other notice to travelers of the 



presence of a steam roller on a 
street is needed than a view of the 
roller itself when it can be seen in 
ample time to avoid it." 

220 Oliver v. City of Denver, 13 
Colo. App. 345, 57 Pac. 729; Her- 
ries v. City of Waterloo, 114 Iowa, 
374, 86 N. W. 306; City of Welling- 
ton v. Gregson, 31 Kan. 99; Hebert 
v. City of Northampton, 152 Mass. 
266, 25 N. E. 467; McDonald v. City 
of St. Paul, 82 Minn. 308, 84 X. W. 
1022; Whitney v. Town of Ticonde- 
roga, 127 N. Y. 40, 27 N. E. 403. 
Question for jury; road scraper left 
by highway authorities near road. 
Jordan v. City of New York, 26 
Misc. 53, 55 N. Y. Supp. 716; Mc- 
Laughlin v. City of Philadelphia, 
142 Pa. 80, 21 Atl. 754; City of Gal- 
veston v. Dazet (Tex.) 19 S. W. 142; 
Belvin v. City of Richmond, 85 Va. 
574, 8 S. E. 378, 1 L. R. A. 807. No 
liability where rope is placed across 
a public street by order of the 
judge of the state court. Jochem 
v. Robinson, 72 Wis. 199, 39 X. W. 
383, 1 L. R. A. 178. Use of sidewalk 
by loading skid. 

-"' City of Wellington v. Gregson, 
31 Kan. 99. The court held that a 
post put to protect a tree within a 
foot or two of the traveled track of 
the city street was not an obstruc- 
tion. In the decision it was said: 
"It is a familiar fact that in all our 
cities lot owners are accustomed to 
plant shade trees in front of their 
lots. Many streets are thus ren- 
dered beautiful by the long rows 
on either side. * * * Sometimes 
these trees are in the sidewalk, but 
more often just outside the side- 
walk in the street proper. Often,, 
especially when the trees are; 
young, they are inclosed with boxes! 



1004 



LIABILITY FOR NEGLIGENCE. 



2295 



stepping stones, 228 hitching or lamp posts, 229 hydrants, 230 are the 
most familiar illustrations of this class. There are also obstruc- 
tions directly authorized by the legislature placed in the public 
highways and the existence of these cannot give rise to a liability 
on account of injuries received from them. 231 The duty to keep 
in a reasonably safe condition, as applied to obstructions, includes 
deposits of building materials lawfully placed within the limits 
of a highway for use in constructing buildings. 232 



or railing, to prevent their injury 
by straying cattle or passing teams. 
Can it be that permitting these 
things is per se negligence on the 
part of the city; that every time 
a buggy runs against one of these 
trees or its protection, the city is 
liable for all injuries, unless the 
driver was also negligent? Cannot 
a party put a hitching post in front 
of his residence without exposing 
the city to a charge of negligence, 
unless he has placed it more than a 
carriage width from the traveled 
track? * * * * The question 
is not whether a city may grant 
permission to one to occupy the 
streets with trees, and railing, and 
posts, but whether the city must 
keep its streets and all its streets 
free from all such objects, or be 
held always, as matter of law, 
guilty of negligence and liable for 
all injuries resulting therefrom." 

Chase v. City of Lowell, 151 Mass. 
422, 24 N. E. 212. A city is liable 
for injuries caused by the falling of 
trees standing in public street. 
"\Vashburn v. Inhabitants of Easton, 
172 Mass. 525, 52 N. E. 1070; Ring 
v. City of Cohoes, 77 N. Y. 83; 
Dougherty v. Village of Horseheads, 
159 N. Y. 154, 53 N. E. 799; Wor- 
rilow v. Upper Chichester Tp., 149 
Pa. 40, 24 All. 85; Watkins v. Coun- 
ty Court, 30 W. Va. 657, 5 S. E. 654. 
No liability for injury received in 



the falling of a dead tree within 
five feet of the public road. 

228 Tiesler v. Town of Norwich, 
73 Conn. 199, 47 Atl. 161; City of 
Cincinnati v. Fleischer, 63 Ohio St. 
229, 58 N. E. 568; Robert v. Powell, 
168 N. Y. 411, 61 N. E. 699, 55 L. R. 
A. 775; DuBois v. City of Kingston, 
102 N. Y. 219. 

229 Village of Bureau Junction v. 
Long, 56 111. App. 458; Weinstein v. 
City of Terre Haute, 147 Ind. 556, 
46 N. E. 1004; Arey v. City of New- 
ton, 148 Mass. 598, 20 N. E. 327; 
Macomber v. City of Taunton, 100 
Mass. 255. 

230 city of Vincennes v. Thuis, 28 
Ind. App. 523, 63 N. E. 315; Archer 
v. City of Mt. Vernon, 57 App. Div. 
1040, 67 N. Y. Supp. 1040; Ring v. 
City of Cohoes, 77 N. Y. 83; Homer 
v. City of Philadelphia, 194 Pa. 542, 
45 Atl. 330. But see St. Germain v. 
City of Fall River, 177 Mass. 550, 
59 N. E. 447; City of Scranton v. 
Catterson, 94 Pa. St. 202; Wilkins 
v. Village of Rutland, 61 Vt. 336, 17 
Atl. 735; King v. City of Oshkosh, 
75 Wis. 517, 44 N. W. 745. 

231 See 828 et seq., 864 et seq., 
886 et seq. 

232 city of Cleveland v. King, 132 
IT. S. 295; Lewis v. City of Atlanta, 
77 Ga. 756; Kansas City v. McDon- 
ald, 60 Kan. 481, 57 Pac. 123, 55 
L. R. A. 429; Joslyn v. City of De- 
troit, 74 Mich. 458, 42 N. W. 50; 




229G 



LIABILITY FOR NEGLIGENCE. 



1005, 100G 



1005. Same subject; accumulation of rubbish. 

Negligence may arise in a maintenance of streets through a 
failure to remove accumulations of rubbish, 238 whether caused by 
natural or artificial means, 23 * by the corporation itself or private 
persons. 235 

1006. Ice and snow. 

The duty to exercise reasonable care in keeing highways in a 
fit condition for travel applies also to accumulations of ice and 
snow 236 or its removal from the surface when of such a character 



Pueschell v. Kansas City Wire & 
Iron Works, 79 Mo. App. 459. But ii 
is not necessary to keep the portion 
of the street so used for building 
material in a proper condition for 
public travel or a playground for 
children. Rommeney v. City of 
New York, 49 App. Div. 64, 63 N. Y. 
Supp. 186; Koch v. City of Will- 
lamsport, 195 Pa. 488, 46 Atl. 67; 
Hundhausen v. Bond, 36 Wis. 29. 
But see Raymond v. Keseberg, 84 
Wis. 302, 54 N. W. 612, 19 L. R. 
A. 643. 

233 Hazzard v. City of Council 
Bluffs, 79 Iowa, 106, 44 N. W. 219; 
Hall v. City of Cadillac, 114 Mich. 
99; Heckman v. Evenson, 7 N. D. 
173; Frazier v. Borough of Butler, 
172 Pa. 407, 33 Atl. 691; Archer v. 
Town of Johnson City (Tenn.) 64 
S. W. 474; City of El Paso v. Dolan 
(Tex. Civ. App.) 25 S- W. 669; City 
of Galveston v. Reagan (Tex. Civ. 
App.) 43 S. W. 48. 

234 Hazard v. City of Council 
Bluffs, 87 Iowa, 51, 53 N. W. 1083; 
City of Springfield v. Spence, 39 
Ohio St. 665. 

235 Ray v. City of St. Paul, 40 
Minn. 458, 42 N. W. 297; Badgley \. 
City of St. Louis, 149 Mo. 122, 50 
S. W. 817. 

ass city of Providence v. Clapp, 17 



How. (U. S.) 161; Congdon v. City 
of Norwich, 37 Conn. 414. Question 
for jury. Seeley v. Town of Litch- 
field, 49 Conn. 134. In respect to 
nature of duty. Savage v. City of 
Bangor, 40 Me. 176; Rogers v. In- 
habitants of Newport, 62 Me. 101; 
Ellis v. City of Lewiston, 89 Me. 60, 
35 Atl. 1016; Fortin v. Inhabitants 
of Easthampton, 145 Mass. 196, 13 
N. E. 599; Harris v. Inhabitants of 
Newbury, 128 Mass. 321; Murphy v. 
City of Worcester, 159 Mass. 546, 
34 N. E. 1080; Spaulding v. Town 
of Beverly, 167 Mass. 149, 45 N. E. 
1; Nebraska City v. Rathbone, 20 
Neb. 288; City of Lincoln v. Jan- 
esch, 63 Neb. 707, 89 N. W. 280. 
The duty of keeping sidewalks free 
from ice and snow may be imposed 
by statute upon abutting owners. 
Smith v. City of Brooklyn, 36 Hun 
(N. Y.) 224; Wyman v. City of 
Philadelphia, 175 Pa. 117; Temple- 
ton v. Warriorsmark Tp., 200 Pa. 
165, 49 Atl. 950; Barton v. Town of 
Montpelier, 30 Vt. 650; McCabe V; 
Town of Hammond, 34 Wis. 590. 
Question for jury. Fife v. City of 
Oshkosh, 89 Wis. 540, 62 N. W. 541; 
Hyer v. City of Janesville, 101 Wis. 
371, 77 N. W. 729. Reasonable care, 
does not require a walk to be 
scraped. But see McKellar v. City) 



1006 



LIABILITY FOR NEGLIGENCE. 



2297 



as to cause a dangerous and slippery condition. 237 This duty, it 
will be readily seen, varies with climatic conditions 238 and the 
financial ability of the corporation to remove frequent or constant 
falls of snow or sleet. 239 The existence of the duty is also depend- 
ent upon the character of the accumulation whether natural or 
.artificial. In northern latitudes frequent falls of snow or sleet 
may cause obstructions or a dangerous condition even when left 



-of Detroit, 57 Mich. 158; Hutchin- 
son v. City of Ypslanti, 103 Micli. 
12, 61 N. W. 279. See, also, 1021, 
post. 

237 Smith v. City of Chicago, 38 
Fed. 388; Gaylord v. City of New 
Britain, 58 Conn. 398, 20 Atl. 365; 
City of Hartford v. Talcott, 48 Conn 
525; Wood v. Borough of Stafford 
'Springs, 74 Conn. 437, 51 Atl. 129; 
Cloughessey v. City of Waterbury, 
51 Conn. 405; City of Virginia v. 
Plummer, 65 111. App. 419; Cosner 
v. City of Centerville, 90 Iowa, 33; 
Hodges v. City of Waterloo, 109 
Iowa, 444, 80 N. W. 523; Newton v. 
City of Worcester, 174 Mass. 181; 
Rolf v. City of Greenville, 102 Mich. 
544, 61 N. W. 3; Wesley v. City of 
Detroit, 117 Mich. 658; Waltemeyer 
v. Kansas City, 71 Mo. App. 354; 
Taylor v. City of Yonkers, 105 N. Y. 
202, 11 N. E. 642; Gardner v. Wasco 
County, 37 Or. 392, 61 Pac. 834, 62 
Pac. 753. Question for jury. Decker 
v. City of Scranton, 151 Pa. 241, 25 
Atl. 36; Scoville v. Salt Lake City, 
11 Utah, 60, 39 Pac. 481; Ziegler v. 
City of Spokane, 25 Wash. 439, 65 
Pac. 752; Paulson v. Town of Peli- 
can, 79 Wis. 445, 48 N. W. 715; 
Byington v. City of Merrill, 112 Wis. 
211, 88 N. W. 26. No liability under 
Rev. St. 1898, 1339 as amended by 
Laws 1899, c. 305, unless an accu- 
mulation of ice and snow has ex- 
isted for three weeks before the 
'damage occurred. Koch v. City of 



Ashland, 88 Wis. 603, 60 N. W. 990. 
But see Henkes v. City of Minneap- 
olis, 42 Minn. 530, 44 N. W. 1026; 
Levasseur v. Village of Haverstraw, 
63 Hun, 627, 18 N. Y. Supp. 237; 
Chase v. City of Cleveland, 44 Ohio 
*St. 505; Borough of Mauch Chunk 
v. Kline, 100 Pa. 119. See, also, 
1021, post. 

238 McDonald v. City of Toledo, 63. 
Fed. 60; D'Estimonville v. City of 
Montreal, 18 Rap. Jud. Que. C. S. 
470; Burr v. Town of Plymouth, 48 
Conn. 460; Spillane v. City of Fitch- 
burg, 177 Mass. 87, 58 N. E. 176; 
O'Hara v. City of Brooklyn, 57 App. 
Div. 176, 68 N. Y. Supp. 210; Ber- 
ger v. City of New York, 65 App. 
Div. 394, 73 N. Y. Supp. 74; Dorn v. 
Town of Oyster Bay, 158 N. Y. 731, 
53 N. E. 1124; Scoville v. Salt Lake 
City, 11 Utah, 60, 39 Pac. 481; City 
of Lynchburg v. Wallace, 95 Va. 
640, 29 S. E. 675. 

239 Rooney v. Randolph, 128 Mass. 
580; Hayes v. City of Cambridge, 
136 Mass. 402; Battersby v. New 
York (N. Y.) 7 Daly, 16; Crawford 
v. City of New York, 86 App. Div. 
107, 74 N. Y. Supp. 261; Spear v. 
Town of Lowell, 47 Vt. 692. But see 
Lindsay v. City of Des Moines, 68 
Iowa, 368. Whether a city has 
greater or less area of sidewalks is 
immaterial on the question of its 
liability for want of proper care in 
keeping them free from snow and. 
ice. 



2208 



LIABILITY FOR NEGLIGENCE. 



100$ 



as naturally deposited. No liability arises under such circum- 
stances. 240 On the other hand, where the accumulations of ice 
and snow are made by artificial means, or caused by defective 
construction of the way, a liability may arise if there is negli- 
gence on the part of the authorities in using the means at their 
disposal to remove them. 241 The duty of keeping sidewalks free 



240 City of Chicago v. Richardson, 
75 111. App. 198; Smyth v. City of 
Bangor, 712 Me. 249; Mason v. City 
of Boston, 96 Mass. 508; McGuin- 
ness v. City of Worcester, 169 Mass. 
272, 35 N. E. 1068; Newton v. City 
of Worcester, 169 Mass. 516, 48 N. 
E. 274; Kannenberg v. City of Al- 
pena, 96 Mich. 53, 55 N. W. 614; 
Stanke v. City of St. Paul, 71 Minn. 
51, 73 N. W. 629; Harrington v. City 
of Buffalo, 50 Hun, 601, 2 N. Y. 
Supp. 333; Kaveny v. City of Troy, 
108 N. Y. 571, 15 N. E. 726. City 
liable for slippery condition of the 
sidewalk made so by smooth ice 
of recent formation. Kleng v. City 
of Buffalo, 72 Hun, 541, 25 N. Y. 
Supp. 445; Peard v. City of Mt. 
Vernon, 83 Hun, 250, 31 N. Y. Supp. 
395, affirmed 158 N. Y. 681, 52 N. E. 
1125; Anthony v. Village of Glens 
Falls, 4 App. Div. 218, 38 N. Y. Supp. 
536; Staley v. City of New York, 37 
App. Div. 598, 56 N. Y. Supp. 237; 
Taylor v. City of Yonkers, 105 N. Y. 
202; Kleng v. City of Buffalo, 156 
N. Y. 700, 51 N. E. 1091, affirming 
72 Hun, 541, 25 N. Y. Supp. 445; 
Cook v. City of Milwaukee, 24 Wis. 
270; Koepke v. City of Milwaukee, 
112 Wis. 475, 88 N. W. 238; City of 
De Pere v. Hibbard, 104 Wis. 666, 
80 N. W. 933; Dapper v. City of Mil- 
waukee, 107 Wis. 88, 82 N. W. 725. 
See, also, 1021, post. 

241 Town of Cornwall v. Derochie, 
24 Can. Sup. Ct. R. 301; City of 
Boulder v. Niles, 9 Colo. 415, 12 Pac. 



632; McQueen v. City of Elkhart, 
14 Ind. App. 671, 43 N. E. 460; Hus- 
ton v. City of Council Bluffs, 101 
Iowa, 33, 69 N. W. 1130, 36 L. R. A. 
211; Magaha v. City of Hagerstown, 
95 Md. 62, 51 Atl. 832; Carville v. 
Inhabitants of Westford, 163 Mass. 
544, 40 N. E. 893; McGowan v. City 
of Boston, 170 Mass. 384, 49 N. E. 
633; Bailey v. City of Cambridge, 
174 Mass. 188, 54 N. E. 523; Leahaa 
v. Cochran, 178 Mass. 566, 60 X. E. 
382, 53 L. R. A. 891; Davis v. Rich, 
180 Mass. 235, 62 N. E. 375; Hughea 
v. City of Lawrence, 160 Mass. 474,. 
36 N. E. 485; Reedy v. St. Louis 
Brewing Ass'n, 161 Mo. 523, 61 S. 
W. 859, 53 L. A. R. 805; Foxworthy 
v. City of Hastings, 25 Neb. 133, 41 
N. W. 132; Corbett v. City of Troy, 
25 N. Y. State Rep. 520, 6 N. Y. 
Supp. 381; Conklin v. City of El- 
mira, 11 App. Div. 402, 42 N. Y. 
Supp. 518; Mosey v. City of Troy, 
61 Barb. (N. Y.) 580; Pomfrey v. 
Village of Saratoga Springs, 104 X. 
Y. 459; Gillrie v. City of Lockport, 
122 N. Y. 403, 25 N. E. 357; Trem- 
blay v. Harmony Mills, 171 X. Y. 
598, 61 N. E. 501, affirming 57 App. 
Div. 630. 68 N. Y. Supp. 1150; Miller 
v. City of Bradford, 186 Pa. 164, 4ft 
Atl. 409; Hampson v. Taylor, 15 R. 
I. 83; McCloskey v. Moies, 19 R. I. 
297, 33 Atl. 225; Scoville v. Salt 
Lake City, n Utah. 60, 39 Pac. 481; 
Hill v. City of Fond du Lac, 56 Wis. 
242. But see Gavett v. City of Jack- 
son, 109 Mich. 408, 67 N. W. 517, 3fc 






1007 



LIABILITY FOR NEGLIGENCE. 



2299- 



from snow may be imposed by statute or ordinance upon the 
abutting oAvner. 242 

1007. Same subject; buildings with their adjuncts and pro- 
jections. 

Public highways are established and should be maintained for 
purposes of ordinary travel and not as a location for buildings 
erected either by the public authorities or by private persons. 243 
The construction, therefore, of a building or any portion of it 244 
or any of its adjuncts in a public way in such a manner as to in- 
terfere with the proper use of the highway at that place will be 
regarded as an illegal obstruction. The duty is imposed upon 
the public authorities to cause it to be removed and if there is a 
failure in the proper performance of this duty resulting in injury,, 
damages can be recovered. The term "adjuncts and projections" 
include ordinarily projecting portions of a building or objects 
attached to it, and supported entirely from the building or partly 
from the street, such as signs, 245 awnings 246 and the like. 247 And 



L. R. A. 861; Chamberlain v. City of 
Oshkosh, 84 Wis. 289, 54 N. W. 618, 
19 L. R. A. 513; Beaton v. City of 
Milwaukee, 97 Wis. 416, 73 N. W. 53. 
242 Inhabitants of Easthampton v. 
Hill, 162 Mass. 302, 38 N. E. 502; 
Taylor v. Lake Shore & M. S. R. 
Co., 45 Mich. 74; City of St. Louis 
v. Connecticut Mut. Life Ins. Co., 
107 Mo. 92, 17 S. W. 637; Norton v. 
City of St. Louis, 97 Mo. 537, 11 S. 
W. 242; State v. Jackman, 69 N. H. 
318, 41 Atl. 347, 42 L. R. A. 438; 
City of Lincoln v. Janesch, 63 Neb. 
707, 89 N. W. 280, 56 L. R. A. 762; 
Pomfrey v. Village of Saratoga 
Springs, 104 N. Y. 459, 11 N. E. 43; 
Taylor v. City of Yonkers, 105 N. 
Y. 202, 11 N. E. 642; Heeney v. 
Sprague, 11 R. I. 456; Calder v. City 
of Walla Walla, 6 Wash. 377, 33 
Pac. 1054. But see City of Chicago 
v. O'Brien, 111 111. 532; State v. 
Jackman, 69 N. H. 318, 41 Atl. 347, 
42 L. R. A. 438. Where such an 



ordinance was held valid not being 
an unreasonable exercise of the po- 
lice power. 

243 But see Pennsylvania Co. v. 
City of Chicago, 181 111. 289, 54 1ST. 
E. 825, 53 L. R. A. 223. 

244Ries v. City of Erie, 169 Pa. 
598, 32 Atl. 621. 

245 Gray v. City of Emporia, 43 
Kan. 704, 23 Pac. 944; Champlin v. 
Village of Penn Yan, 34 Hun (N. 
Y.) 33. But see Hewison v. City of 
New Haven, 34 Conn. 136; Jones v. 
City of Boston, 104 Mass. 75; Tay- 
lor v. Peckham, 8 R. I. 349. 

246 Larson v. City of Grand Forks, 
3 Dak. 307; Day v. Inhabitants of 
Milford, 87 Mass. (5 Allen) 98; 
Drake v. City of Lowell, 54 Mass. 
(13 Mete.) 292; Bohen v. City of 
Waseca, 32 Minn. 176; Hume v. 
City of New York, 47 N. Y. 639; 
Id., 74 N. Y. 264; Bieling v. City of 
Brooklyn, 120 N. Y. 98, 24 N. E. 389. 

SIT Grove v. City of Ft. Wayne, 45- 



2300 LIABILITY FOR NEGLIGENCE. 1()OS, 1009 

the rule also supplies to structures in a dangerous condition on or 
near the street. 248 

1008. Poles, wires and similar objects as obstructions. 

The use of public highways by telegraph, telephone or electric 
light wires and poles is undoubtedly contrary to the primary pur- 
pose for which public highways are established and maintained 
and unless they are erected and operated under proper and law- 
ful authority are to be regarded as nuisances and obstructions of 
such a character as to create, unless remedied, a violation of the 
duty imposed upon public corporations in respect to the mainten- 
ance of their highways. 249 Where, however, their use is duly 
authorized, they then become defects only when by reason of their 
location 25 or of their condition 251 they constitute a menace to the 
safety of travelers. 

1009. Excavations or depressions. 

The duty is imperative in respect to the protection of travelers 
from excavations made in the street either by the corporation it- 
self in its repair, the making of improvements, or by others in the 
performance of some lawful purpose. The dangerous character 
of excavations is not disputed and if the public are not either 

Ind. 429; Borough of Norristown v. N. Y. Supp. 850. No liability for 

Moyer, 67 Pa. 355. But see City of death caused by falling wire negli- 

Anderson v. East, 117 Ind. 126, 19 gently strung by the city. See 

N. E. 726, 2 L. R. A. 712. 833, ante. 

248 City of Chicago v. Major, 18 "o Atkinson v. City of Chatham, 

111. 349. Defective city water tank. 26 Ont. App. 521; Hayes v. Inhabi- 

City of Chicago v. Smith, 95 111. tants of Hyde Park, 153 Mass. 514, 

App. 335. Defective arch across 27 N. E. 522, 12 L. R. A. 249; Watts 

street. Langan v. City of Atchison, v. Southern Bell Tel. & Tel. Co., 100 

35 Kan. 318, 11 Pac. 38. Bill board Va. 45, 40 S. E. 107; Roberts v. Wis- 

near sidewalk. Nesbitt v. City of consin Tel. Co., 77 Wis. 589, 46 N. 

Greenville, 69 Miss. 22, 10 So. 452; W. 800. 

Grogan v. Broadway Foundry Co., 231 District of Columbia v. Demp- 

87 Mo. 321. But see Taylor v. Peck- sey, 13 App. D. C. 533; City of Ster- 

ham, 8 R. I. 349. ling v. Schiffmacher, 47 111. App. 

2* Young v. Inhabitants of Yar- 141; City of Decatur v. Hamilton, 

mouth, 75 Mass. (9 Gray) 386; Ken- 89 111. App. 561; Burns v. City of 

nedy v. City of Lansing, 99 Mich. Emporia, 63 Kan. 285, 65 Pac. 260; 

518, 58 N. W. 70; Twist v. City of Bourget v. City of Cambridge, 159 

Rochester, 165 N. Y. 619, 59 N. E. Mass. 388, 34 N. E. 455; Neuert v. 

1131, affirming 37 App. Div. 307, 55 City of Boston, 120 Mass. 338; 



1009 



LIABILITY FOR NEGLIGENCE. 



2301 



warned of their existence 252 or if the excavations are not properly 
lighted, 253 protected or guarded, 254 a liability will follow. An in- 
teresting question frequently arises in respect to liability arising 



Fisher v. City of Mt. Vernon, 41 
App. Div. 293, 58 N. Y. Supp. 499. 
Question for jury. Twist v. City of 
City of Rochester, 165 N. Y. 619, 
59 N. E. 1131; Mooney v. Borough 
of Luzerne, 186 Pa. 161, 40 Atl. 311, 
40 L. R. A. 811. 

252 Sherwood v. District of Colum- 
bia, 3 Mackay (D. C.) 276. Well in 
highway. Norwood v. City of Som- 
erville, 159 Mass. 105; Gilchrist v. 
City of South Omaha, 36 Neb. 163; 
Sherman v. Village of Oneonta, 66 
Hun, 629, 21 N. Y. Supp. 137; Foy v. 
City of Winston, 126 N. C. 381, 35 
S. E. 609; Seamons v. Fitts, 20 R. I. 
443, 40 Atl. 3; Boyle v. Borough of 
Hazleton, 171 Pa. 167, 33 Atl. 142. 
But see O'Rourke v. City of Mon- 
roe, 98 Mich. 520; Bowen v. City of 
Huntington, 35 W. Va. 682, 14 S. E. 
217; Gibson v. City of Huntington, 
3,8 W. Va. 177, 18 S. E. 447, 22 L. 
R. A. 561. Not liable for caving in 
of embankment. See note 31 Am. 
& Eng. Corp. Cas. 40. 

253 City of Birmingham v. Lewis, 
92 Ala. 352, 9 So. 243; Cummings v. 
City of Hartford, 70 Conn. 115, 38 
Atl. 916; City of Americus v. Chap- 
man, 94 Ga. 711, 20 S. E. 3; City of 
Salem v. Webster, 192 111. 369, 61 
N. E. 323, affirming 95 111. App. 120; 
City of Olathe v. Mizee, 48 Kan. 
435, 29 Pac. 754; Butler v. City of 
Bangor, 67 Me. 385; Norwood v. 
City of Somerville, 159 Mass. 105, 
33 N. E. 1108. Whether precautions 
taken are sufficient is a question 
for the jury. Fox v. City of Chelsea, 
171 Mass. 297, 50 N. E. 622; Clark 
v. City of Austin, 38 Minn. 487, 38 
X. W. 615; Haniford v. Kansas City, 



103 Mo. 172, 15 S. W. 753, Myers v. 
Kansas City, 108 Mo. 480; City of 
Omaha v. Randolph, 30 Neb. 699, 46 
N. W. 1013; Crowther v. City of 
Yonkers, 60 Hun, 586, 15 N. Y. 
Supp. 588; Storrs v. City of Utica, 
17 N. Y. Supp. 104; Groves v. City 
of Rochester, 39 Hun (N. Y.) 5; 
Grant v. City of Brooklyn, 41 Barb. 
(N. Y.) 381; Blakeslee v. City of 
Geneva, 61 App. Div. 42, 69 N. Y. 
Supp. 1122; McAllister v. City of 
Albany, 18 Or. 426, 23 Pac. 845, 
Reed v. City of Spokane, 21 Wash. 
218, 57 Pac. 803. But see Ball v. 
City of Independence, 41 Mo. App. 
469. No liability where lights have 
been removed by a wrong doer. 

254 Carstesen v. Town of Strat- 
ford, 67 Conn. 428, 35 Atl. 276; 
Seward v. City of Wilmington, 2 
Marv. (Del.) 189, 42 Atl. 451; City 
of Tallahassee v. Fortune, 3 Fla. 
19; Jackson v. City Council of 
Buena Vista, 88 Ga. 466, 14 S. E. 
867; Pfau v. Williamson, 63 111. 16; 
Dooley v. Town of Sullivan, 112 Ind. 
451, 14 N. E 1 . 566; Hall v. Town of 
Manson, 99 Iowa, 698, 68 N. W. 
922, 34 L. R. A. 207; Kemper v. City 
of Burlington, 81 Iowa, 354; John- 
son v. Sioux City, 114 Iowa, 137, 86 
N. W. 212; Fletcher v. City of Ells- 
worth, 53 Kan. 751, 37 Pac. 115; 
Blessington v. City of Boston, 153 
Mass. 409, 26 N. E. 1113; Powers v. 
City of Boston, 154 Mass. 60; City 
of Boston v. Coon, 175 Mass. 283, 
56 N. E. 287; Brydon v. City of De- 
troit, 117 Mich. 296, 76 N. W. 620; 
Monje v. City of Grand Rapids, 122 
Mich. 645, 81 N. W. 574; City of 
Grand Rapids v. Van Rossum, 126 






2302 



LIABILITY FOR NEGLIGENCE. 



1010 



from an injury received because of a failure to guard or warn 
-against an excavation not within the limits of a highway but im- 
mediately contiguous to it. The rule seems to be in this class of 
cases that no liability will exist if the excavation is not immedi- 
ately adjacent to the highway and, therefore, does not constitute a 
dangerous defect in connection with the use of the highway. 2 " 
Whether a depression or rut is sufficient to be regarded as a de- 
fect is a question of fact for the jury. 256 

1010. Basement or sidewalk openings. 

Akin to excavations are cellar, 257 basement 258 and sidewalk 
openings 259 made by private owners in the public streets under 



Mich. 310, 85 N. W. 867; McCune v. 
Town of Missoula, 10 Mont. 146; 
City of Omaha v. Jensen, 35 Neb. 
68, 52 N. W. 833 ; Brown v. Town of 
Louisburg, 126 N. C. 701, 36 S. E. 
166; City of Circleville v. Neuding, 
41 Ohio St. 465; Overpeck v. City 
of Rapid City, 14 S. D. 507, 85 N. 
W. 990; Town of Franklin v. House, 
104 Tenn. 1. But see Gallagher v. 
Proctor, 84 Me. 41, 24 Atl. 459; City 
of Meridian v. Stainback (Miss.) 
30 So. 607; O'Neil v. Bates, 20 R. I. 
793, 40 Atl. 236. No liability where 
a barrier is taken down without 
authority. 

255 Zettler v. City of Atlanta, 66 
Ga. 195; City of Chicago v. Baker, 
195 111. 54, 62 N. E. 892. Question 
for jury. Talty v. City of Atlantic, 
92 Iowa, 135, 60 N. W. 516; Hawley 
v. City of Atlantic, 92 Iowa, 172, 
60 N. W. 519; MacHugh v. City of 
St. Paul, 67 Minn. 441, 70 N. W. b; 
Bassett v. City of St. Joseph, 53 
Mo. 290; Halpin v. Kansas City, 
76 Mo. 335; Wiggin v. City of St. 
Louis, 135 Mo. 558, 37 S W. 528. 
Reasonable care is required for 
the protection of persons from fall- 
ing into excavations adjacent to a 
sidewalk but upon private property. 



Baldwin v. City of Springfield, 141 
Mo. 205, 42 S. W. 717. The al- 
leged negligence is one of fact to 
be determined by the conditions of 
the case. City of Lincoln v. Beck- 
man, 23 Neb. 677, 37 N. W. 593; 
City of South Omaha v. Cunning- 
ham, 31 Neb. 316, 47 N. W. 930; 
Kelley v. City of Columbus, 41 Ohio 
St. 263; City of Oklahoma City v. 
Meyers, 4 Okl. 686, 46 Pac. 552; 
Gorr v. Mittelstaedt, 96 Wis. 296, 
71 N. W. 656; Boltz v. Town of Sul- 
livan, 101 Wis. 608, 77 N. W. 870. 

256 Brush v. City of New York, 59 
App. Div. 12, 69 N. Y. Supp. 51; 
Sutter v. Young Tp., 130 Pa. 72, 18 
Atl. 610; Wiltze v. Town of Tilden, 
77 Wis. 152, 46 N. W. 234; Rumrill 
v. Town of Delafield, 82 Wis. 184, 
52 N. W. 261; Burroughs v. City of 
Milwaukee, 110 Wis. 478, 86 N. W. 
159. But see Osterhout v. Town of 
Bethlehem, 55 App. Div. 198, 66 N. 
Y. Supp. 845. 

257 Chapman v. City of Macon, 55 
Ga. 566; City of Augusta v. Hafers, 
59 Ga. 151; City of Augusta v. Haf- 
ers, 61 Ga. 48; Village of Evanston 
v. Fitzgerald, 37 111. App. 86; Day 
v. City of Mt. Pleasant, 70 Iowa, 
193, 30 N. W. 853; Lichtenberger v. 



1011 



LIABILITY FOR NEGLIGENCE. 



2303 



license or otherwise or upon private property immediately con- 
tiguous to the traveled portion of the highway. The rule stated 
in the preceding section applies. The imperative duty is imposed 
on the public authorities because of the dangerous condition of 
these openings to guard the public against injury in a manner 
commensurate with the danger. 260 



1011. Ditches, culverts, catch basins or open sewers. 

In the construction of ditches, 261 culverts, 262 catch basins, 263 
sewers, or water pipes, 264 their condition as originally made or as 



Town of Meriden, 91 Iowa, 45, 58 
N. W. 1058; Ledgerwood v. Webster 
City, 93 Iowa, 726, 61 N. W. 1089; 
Smith v. City of Leavenworth, 15 
Kan. 81. Negligence question for 
jury. City of Abilene v. Cowperth- 
wait, 52 Kan. 324, 34 Pac. 795; Car- 
rington v. City of St. Louis, 89 Mo. 
208, 1 S. W. 240; Sweeney v. New- 
port, 65 N. H. 86, 18 Atl. 86; Bar- 
stow v. City of Berlin, 34 Wis. 357; 
Smalley v. City of Appleton, 75 
Wis. 18. 

238 city of Galesburg v. Higley, 61 
111. 287; McNerney v. City of Read- 
ing, 150 Pa. 611, 25 Atl. 57. 

250 Rider v. ClarK, 132 Cal. 382, 
64 Pac. 564; City of Denver v. Solo- 
mon, 2 Colo. App. 534, 31 Pac. 507; 
Littlefield v. City of Norwich, 40 
Conn. 406; Wickwire v. Town of 
Angola, 4 Ind. App. 253, 30 N. E. 
917; City of Henderson v. Reed, 23 
Ky. L. R. 463, 62 S. W. 1039; Betz 
v. Limingi, 46 La. Ann. 1113; Burt 
v. City of Boston, 122 Mass. 223; 
Lynch v. Hubbard, 101 Mich. 43; 
City of Wabasha v. Southworth, 54 
Minn. 79, 55 N. W. 818; Buckley v. 
Kansas City, 95 Mo. App. 188, 68 
S. W. 1069; Grove v. Kansas City, 
75 Mo. 672; Sweeney v. City of 
Butte, 15 Mont. 274, 39 Pac. 286; 
McNerney v. City of Reading, 150 
Pa. 611, 25 Atl. 57; McLeod v. City 



of Spokane, 26 Wash. 346, 67 Pac. 
74; McClure v. City of Sparta, 84 
Wis. 269, 54 N. W. 337; Stege v. 
City of Milwaukee, 110 Wis. 484, 86 
N. W. 161. But see Hanscom v. 
City of Boston, 141 Mass. 242. 

200 Burridge v. City of Detroit, 117 
Mich. 557, 42 L. R. A. 684; Hall v. 
City of Austin, 73 Minn. 134; De- 
hanitz v. City of St. Paul, 73 Minn. 
385; Young v. City of Webb City, 
150 Mo. 333; City of Lincoln v. 
O'Brien, 56 Neb. 761; Temperance 
Hall Ass'n v. Giles, 33 N. J. Law, 
260; City of Greenville v. Britton, 
19 Tex. Civ. App. 79; Whitty v. 
City of Oshkosh, 106 Wis. 87, 81 N. 
W. 992. 

261 Lewman v. Andrews, 129 Ala. 
170, 29 So. 692; Lewis v. Riverside 
Water Co., 76 Cal. 249, 18 Pac. 314; 
Davis v. Com'rs of Highways, 143 
111. 9, 33 N. E. 58; Goucher v. Sioux 
City, 115 Iowa, 639, 89 N. W. 24; 
Williams v. Town of Greenville, 130 
N. C. 93, 40 S. E. 977, 57 L. R. A. 
207; Wood v. Bridgeport Borough, 
143 Pa. 167, 22 Atl. 752; City of Cor- 
sicana v. Tobin, 23 Tex. Civ. App. 
492, 57 S. W. 319; City of Galves- 
ton v. Posnainsky, 62 Tex. 118; 
Hart v. Town of Red Cedar, 63 Wis. 
634; Donahue v. Town of Warren, 
95 Wis. 367, 70 N. W. 305. 

262 City of LaSalle v. Porterfield, 






2304 



LIABILITY FOR NEGLIGENCE. 



1012 



it may subsequently become may constitute such a defect in the 
highway as to create a liability to one suffering injury by reason 
of this defective condition. 206 



1012. Use of street. 

The particular use to which a street is put may constitute an 
obstruction in respect to the creation of a liability. A highway is 
designed, primarily, for the use of travelers on foot or otherwise 
but where horses are used as a means of locomotion, whenever 
the duty exists, it does not apply to those which are unmanage- 
able, 266 vicious, easily frightened, 207 or in the act of running 
away. 268 The use of highways by objects, therefore, of such a 
character as to frighten or render unmanageable horses not com- 
ing within the classes above mentioned constitutes a defect in the 
proper maintenance of the highway and creates a liability on the 



138 111. 114, 27 N. E. 937; "City of 
Mt. Vernon v. Lee, 36 111. App. 24; 
City of Elwood v. Addison, 26 Ind. 
App. 28, 59 N. E. 47; Hodgkins v. 
Inhabitants of Rockport, 116 Mass. 
573; Howard v. Inhabitants of Men- 
don, 117 Mass. 585; O'Gorman v. 
Village of Morris, 26 Minn. 267. But 
see Ford v. Town of Braintree, 64 
Vt. 144, 23 Atl. 633. 

203 Buck v. City of Biddeford, 82 
Me. 433, 19 Atl. 912; Stone v. City 
of Troy, 60 Hun, 580, 14 N. Y. Supp. 
616; Lloyd v. Village of Walton, 57 
App. Div. 288, 67 N. Y. Supp. 929. 
But see City Council of .Sheffield v. 
Harris, 101 Ala. 564; Lyon v. City 
of Logansport (Ind. App.) 32 N. E. 
582; Buscher v. City of Lafayette, 
8 Ind. App. 590, 36 N. E. 371; Bry- 
ant v. Inhabitants of "Westbrook, 86 
Me. 450, 29 Atl. 1109; Wright v. 
Lancaster, 203 Pa. 276, 52 Atl. 245; 
Canavan v. City of Oil City, 183 
Pa. 611, 3S Atl. 1096; Van Pelt v. 
Town of Clarksburg, 42 W. Va. 218, 
24 S. E. 878. 

26* wilkins v. City of Wilmington, 
2 Marv. (Del.) 132, 42 Atl. 418; 



City of Champaign v. Patterson, 50 
111. 61; City of Baltimore v. Peii- 
dleton, 15 Md. 12; Lane v. City of 
Lewiston, 91 Me. 292; Hinckley v. 
Inhabitants of Barnstable, 109 
Mass. 126; Post v. Boston, 141 
Mass. 189; Lincoln v. City of De- 
troit, 101 Mich. 245, 59 N. W. 617; 
Gale v. Town of Dover, 68 N. H. 
403, 44 Atl. 535; Blizzard v. Bor- 
ough of Danville, 175 Pa. 479, 34 
Atl. 846 ; Burger v. City of Philadel- 
phia, 196" Pa. 41, 46 Atl. 262; City 
of Dallas v. McAllister (Tex. Civ. 
App.) 39 S. W. 173. 

265 Hall v. Town of Manson, 90 
Iowa, 585; Johnson v. City of Wor- 
cester, 172 Mass. 122, 51 N. E. 519; 
Coins v. City of Moberly, 127 Mo. 
116; Hopkins v. Ogden City, 5 Utah, 
390, 15 Pac. 596. See, also, 958 
et seq., ante. 

200 See 992, ante and 1055, 
post. 

so: Johnston v. City of Philadel- 
phia, 139 Pa. 646. 

sea See 992, ante, and 1055, 
post. 



1013 



LIABILITY FOR NEGLIGENCE. 



2305 



part of the corporation. 269 The reverse rule applies where the 
horses are of the nature first indicated in this section. The ques- 
tion of negligence in a particular instance in common with all the 
questions raised in the sections discussing the subject of liability 
or torts is one of fact for a jury to determine upon the circum- 
stances arising in each particular case. 

Moving objects. As a rule moving objects are not regarded as 
obstructions ; they may become so, however, upon their becoming 
fixed and left in that condition for an unreasonable time. The 
duty requires their removal within a reasonable period. 

1013. Illegal use of the street. 

The illegal use of a public way or park for a purpose not author- 
ized by law or in violation of some specific statute or ordinance, 270 



269Kyne v. Wilmington & N. R. 
Co., 8 Houst. (Del.) 185, 14 All. 
922; City of Vandalia v. Huss, 41 
111. App. 517. Pile of shavings. 
City of Elgin v. Thompson, 98 111. 
App. 358. Steam roller. Weinstein 
v. City of Terre Haute, 147 Ind. 
556; Pease v. Inhabitants of Par- 
sonsfleld, 92 Me. 345; Butman v. 
City of Newton, 179 Mass. 160 N. E. 
401; Winship v. Town of Enfleld, 
42 N. H. 197; Chamberlain v. Town 
of Enfield, 43 N. H. 356. Lumber 
pile. Mullen v. Village of Glens 
Falls, 11 App. Div. 275, 42 N. Y. 
Supp. 113. Use of steam roller not 
a defect. Burns v. Town of Farm- 
ington, 31 App. Div. 364, 52 N. Y. 
Supp. 229; Barr v. Village of Bain* 
bridge, 42 App. Div. 628, 59 N. Y. 
Supp. 132; Dunn v. Town of Barn- 
well, 43 S. C. 398; Ouverson v. City 
of Graf ton, 5 N. D. 281, 65 N. W. 
676. It is a question for the jury 
whether a steam threshing ma- 
chine standing on the city street 
is an object calculated to frighten 
horses of ordinary gentleness. 

North Manheim Tp. v. Arnold, 119 



Pa. 380, 13 Atl. 444; Baker v. Bor- 
ough of North East, 151 Pa 234, 24 
Atl. 1079; Bennett v. Fifield, 13 R. I. 
139; Stone v. Pendleton, 21 R. I. 332, 
43 Atl. 643 ; Patterson v. City of Aus- 
tin, 15 Tex. Civ. App. 201, 39 S. W. 
976; City of Weatherford v. Lowery 
(Tex. Civ. App.) 47 S. W. 34; Morse 
v. Town of Richmond, 41 Vt. 435; 
Little v. City of Madison, 42 Wis. 
643. Exhibiting wild animals. 
Prahl v. Town of Waupaca, 109 
Wis. 299, 85 N. W. 350. Pile of 
drain pipes. But see District of 
Columbia v. Moulton, 182 U. S. 576, 
21 Sup. Ct. 840, Id., 15 Ap> D. C. 
363. Steam roller. Hebbard v. 
Town of Berlin, 66 N. H. 623, 32 
Atl. 229. Following Knowlton v. 
Pittsfield, 62 N. H. 535. Steam 
engine. Dunn v. Town of Barnwell, 
43 S. C. 398, 21 S. E. 315; Loberg 
v. Town of Amherst, 87 Wis. 634, 
58 N. W. 1048. 

2-0 Town of Cullman v. McMinn, 
109 Ala. 614, 19 So. 981; Carswell v. 
City of Wilmington, 2 Marv. (Del.) 
360, 43 Atl. 169; Herries v. City of 
Waterloo, 114 Iowa, 374, 86 N. W. 






Abb. Corp. Vol. Ill 21 



2306 



LIABILITY FOR NEGLIGENCE. 



1014 



or iii such a manner as to constitute a nuisance does not ordinarily 
give rise to a liability where injuries are received from this cause. 
The use of a street for coasting is a familiar illustration of the 
last proposition. 271 

1014. Side and cross walks. 

Side and cross walks are uniformly regarded as a part of the 
highway and the same duty can be enforced in respect to their 
condition and construction. 272 As already noted in the previous 



306; City of Atchison v. Acheson, 
9 Kan. App. 33, 57 Pac. 248; Cratty 
v. City of Bangor, 57 Me. 423. Un- 
der the laws of Maine, a person 
driving on Sunday unless abso- 
lutely necessary, on a defective 
highway, cannot recover for injur- 
ies sustained. Sheehan v. City of 
Boston, 171 Mass. 296, 50 N. E. 543; 
Sharp v. Evergreen Tp., 67 Mich. 
443, 35 N. W. 67. That plaintiff was 
driving on Sunday no defense. But 
see City of Pueblo v. Smith, 3 Colo. 
App. 386, 33 Pac. 685; O'Neil v. 
Town of East Windsor, 63 Conn. 
150, 27 Atl. 2S7; McVoy v. City of 
Knoxville, 85 Tenn. 19, 1 S. W. 498. 

271 Faulkner v. City of Aurora, 85 
Ind. 130; City of Lafayette v. Tim- 
berlake, 88 Ind. 330; Steele v. City 
of Boston, 128 Mass. 583; Pierce v. 
City of New Bedford, 129 Mass. 
534; Ray v. City of Manchester, 46 
N. H. 59; Hutchinson v. Town of 
Concord, 41 Vt. 271. 

272 Village of Evanston v. Gunn, 
99 U. S. 660; Delger v. City of St. 
Paul, 14 Fed. 567; Osborne v. City 
of Detroit, 32 Fed. 36; City of Bir- 
mingham v. Starr, 112 Ala. 98, 20 
So. 424; Bonnet v. City & County 
of San Francisco, 65 Cal. 230; Cu- 
sick v. City of Norwich, 40 Conn. 
375; City of Wilmington v. Ewing, 
2 Pen. (Del.) 66, 43 Atl. 305, 45 L. 



R. A. 79. Municipal liability may 
be limited by legislative act. Giffin 
v. Lewiston, 6 Idaho, 231, 55 Pac. 
545; McLean v. Lewiston, 8 Idaho, 
472, 69 Pac. 478; Dooley v. Town of 
Sullivan, 112 Ind. 451, 14 N. E. 566; 
Village of Mansfield v. Moore, 124 
111. 133, 16 N. E. 246; Village of 
Sciota v. Norton, 63 111. App. 530; 
City of Chicago v. Baker, 95 111. 
App. 413. A city is liable for Its 
neglect to keep a sidewalk in a 
proper repair though it is in fact on 
private property when It invites 
the public to use it as though it 
belonged to the city. 

Higbert v. City of Greencastle, 
43 Ind. 574; Town of Kentland v. 
Hagan, 17 Ind. App. 1, 46 N. E. 43; 
Graham v. Town of Oxford, 105 
Iowa, 705, 75 N. W. 473; Parmenter 
v. City of Marion, 113 Iowa, 297, 85 
N. W. 90; City of Wichita v. Coggs- 
shall, 3 Kan. App. 540, 43 Pac. 842. 
The number of miles of sidewalk 
in a city is immaterial In deter- 
mining the question of whether the 
walk where the injury was received 
was in a reasonably safe condition. 
Aucoin v. City of New Orleans, 105 
La. 271, 29 So. 502; Weare v. In- 
habitants of Fitchburg, 110 Mass. 
334; Frary v. Allen Tp., 91 Mich. 
666, 52 N. W. 78; Burridge v. City 
of Detroit, 117 Mich. 557, 76 N. W. 



1014 



LIABILITY FOR NEGLIGENCE. 



230T 



sections, some classes of public corporations are exempt by statute 
or common law from any obligation whatever in these respects 
some have special duties imposed by statute, while municipal cor- 
porations have usually imposed upon them either by common 
law or statutory regulation the largest measure of duty with its 
resulting liability. The obligation, if one exists, is controlled by 
all of the considerations suggested in sections 950 et seq., which 
it is unnecessary here to repeat. It is deemed advisable however, 
to again call attention to the well established principle of law that 
a public corporation whether municipal or quasi, is never re- 
garded as an insurer of the safety of a person. The only duty 
is to keep the highways, including as an integral part side and 
cross walks, in a reasonably safe condition for ordinary travel by 
those using them for a proper purpose and, therefore, entitled to 
the privilege. 273 This duty is a varying one and depends upon 



84, 42 L. R. A. 684; Saunders v. 
Gun Plains Tp., 76 Mich. 182, 142 
N. W. 1088; Fuller v. City of Jack- 
son, 92 Mich. 197, 52 N. W. 107s5; 
Moore v. City of Minneapolis, 19 
Minn. 300 (Gil. 258); Furnell v. 
City of St. Paul, 20 Minn. 117 (Gil. 
101); Kellogg v. Village of Janes- 
ville, 34 Minn. 132; Young v. Vil- 
lage of Waterville, 39 Minn. 196, 
39 N. W. 97; Downend v. Kansas 
City, 156 Mo. 60, 56 S. W. 902, 51 L. 
R. A. 170; City of Omaha v. Olm- 
stead, 5 Neb. 446; City of Lincoln 
v. Calvert, 39 Neb. 305 ; City of Lin- 
coln v. Smith, 28 Neb. 762, 45 N. W. 
41. The number of miles of side- 
walk does not lessen the duty of 
a city to keep its sidewalks in a 
reasonably safe condition for travel. 
Kail v. City of Manchester, 40 N. 
H. 410; Dupuy v. Union Tp., 46 N. 
J. Law, 269. In the absence of a 
statute imposing the liability, none 
exists for injuries caused by a de- 
fective sidewalk. Kirk v. Village 
of Homer, 77 Hun, 459, 28 N. Y. 
Supp. 1009 ; McMahon v. City of New 
York, 33 N. Y. Supp. 642; Birngruber 



v. Town of Eastchester, 54 App. 
Div. 80, 66 N. Y. Supp. 278; Mc- 
Sherry v. Village of Canandaigua, 
129 N. Y. 612, 29 N. E. 821; Neal 
v. Town of Marion, 129 N. C. 345, 
40 S. E. 116; Miller v. City of Brad- 
ford, 186 Pa. 164, 40 Atl. 409; Poole 
v. City of Jackson, 93 Tenn. 62; 
City of Sherman v. Williams, 77 
Tex. aiO, 14 S. W. 130; City of 
Belton v. Turner (Tex. Civ. App.) 
27 S. W. 831; Baugus v. City of 
Atlanta, 74 Tex. 629, 12 S. W. 750; 
Gordon v. City of Richmond, 83 Va. 
436, 2 S. E. 727; Hutchinson v. City 
of Olympia, 2 Wash. T. 314; Clark 
v. Lincoln County, 1 Wash. St. 518, 
20 Pac. 576. A county is not liable 
for injuries caused by a defective 
sidewalk under its control. Chap- 
man v. Milton, 31 W. Va. 384, 7 S. 
E. 22; Byington v. City of Merrill, 
112 Wis. 211, 88 N. W. 26. The lia- 
bility of municipalities for injuries 
resulting from defective sidewalks 
is wholly the result of statutory 
provisions. 

273 Enright v. City of Atlanta, 78 
Ga. 288; City of Sandwich v. Dolan, 




2308 



LIABILITY FOR NEGLIGENCE. 



1015 



many considerations suggested in other sections, and is in all cases 
predicated upon negligence which is usually regarded as a ques- 
tion of fact for a jury under reasonable control of the court. 27 * 

1015. Duty; how modified. 

The obligation in respect to side and cross walks is changed 
through the fact that they are used by foot passengers. 275 The 
duty by reason of this condition is measurably increased because 
of the increased danger from use by such travel and legally to be 
guarded against. Conditions either in plan, construction or main- 
tenance regarded as defects in side and cross walks would not be 
so considered if found in that portion of the highway set aside for 
travel by other means of locomotion. 276 

(a) Width to be kept in repair. It was said in a previous sec- 
tion 277 that the duty to keep an ordinary highway in repair ap- 
plied only to that portion used or likely to be used, ordinarily, as 
a traveled way. This rule does not apply to side and cross walks ; 
the duty must be performed in respect to them in their entire 
length and width. 278 If a city or town invites the public to use a 



141 111. 430, 31 N. E. 416; City of 
Centralia v. Krouse, 64 111. 19; City 
of Chicago v. Schouen, 75 111. 468; 
Lindsay v. City of Des Moines, 74 
Iowa, 111, 37 N. W. 9; Hall v. Town 
of Manson, 90 Iowa, 585, 58 N. W. 
881; City of Atchison v. Jansen, 21 
Kan. 560; City of Covington v. Man- 
waring, 24 Ky. L. R. 423, 68 S. W. 
625; City of Covington v. Asman, 
24 Ky. L. R. 415, 68 S. W. 646; 
Brummett v. City of Boston, 179 
Mass. 26, 60 N. E. 388; Shietart v. 
City of Detroit, 108 Mich. 309, 66 
N. W. 221. The mere failure to 
construct the sidewalk, however, 
will not create a liability. Phalen 
v. City of Detroit, 126 Mich. 683, 
86 N. W. 126; Wallis v. City ot 
Westport, 82 Mo. App. 522; City of 
Ord v. Nash, 50 Neb. 335, 69 N. W. 
964. Sidewalks must be kept in a 
reasonably safe condition for travel 
by night as well as day. Anderson 



v. Albion, 64 Neb. 280, 89 N. W. 
794; Lohr v. Borough of Phillips- 
burg, 156 Pa. 246, 27 Atl. 133; Poole 
v. City of Jackson, 93 Tenn. 62, 23 
S .W. 57; Peake v. City of Superior, 
106 Wis. 403, 82 N. W. 306. 

27-t Young v. Kansas City, 45 Mo. 
App. 600. See 1042, 1057, and 
1066 post, and 992, ante. 

275 Brooks v. Schwerin, 54 N. Y. 
343. Foot passengers and others 
have equal rights in the streets of 
a city. 5 Thompson, Neg. 6155. 

27e Shippy v. Village of Au Sable, 
65 Mich. 494, 32 N. W. 741. The 
rule stated in respect to use of side- 
walks by children. Moore v. City 
of Kalamazoo, 109 Mich. 176, 66 N. 
W. 1089; Bieber v. City of St. Paul, 
87 Minn. 35, 91 N. W. 20. 

277 See 991, ante. 

278 city of Denver v. Stein, 25 
Colo. 125. 53 Pac. 283; City of At- 
lanta v. Milam, 95 Ga. 135, 22 S. E. 



LIABILITY- FOR NEGLIGENCE. 



2309 



sidewalk, although it may be built on private ground, the duty 
is imposed of keeping it in a reasonably safe condition. 279 

(b) Duty; to whom due. The law which protects a public cor- 
poration from liability where a highway has been used for an im- 
proper purpose, especially in its use by children while playing, 280 
is materially relaxed where side and cross walks are used for this 
purpose. 281 In either case the duty is a varying one depending 
upon the opportunity of children to use public play grounds on 



43; City Council of Augusta v. 
Tharpe, 113 Ga. 152, 38 S. E. 389; 
City of Flora v. Naney, 136 111. 45, 
26 N. E. 645, affirming 31 111. App. 
493; City of Vandalia v. Ropp, 39 
111. App. 3,44; City of Bunker Hill 
v. Pearson, 46 111. App. 47; City of 
Springfield v. Burns, 51 111. App. 
595; City of Decatur v. Besten, 169 
111. 340, 48 N. E. 186; City of Hunt- 
ington v. McClurg, 22 Ind. App. 261, 
53 N. E. 658; City of Lafayette v. 
Larson, 73 Ind. 367; O'Neil v. Vil- 
lage of West Branch, 81 Mich. 544, 
45 N. W. 1023; Coins v. City ot 
Moberly, 127 Mo. 116, 29 S. W. 985; 
Rusher v. City of Aurora, 71 Mo. 
App. 418; Roe v. Kansas City, 100 
Mo. 190, 13 S. W. 404; Whitfield 
v. City of Meridian, 66 Miss. 570, 
6 So. 244, 4 L. R. A. 834; City of 
Chadron v. Glover, 43 Neb. 732, 62 
N. W. 62; Sheridan v. Salem, 14 Or. 
328, 12 Pac. 925; Tucker v. Salt 
Lake City, 10 Utah, 173, 37 Pac. 261; 
Scott v. Provo City, 14 Utah, 31, 45 
Pac. 1005. / 

2T9 Foxworthy v. City of Hastings, 
31 Neb. 825, 48 N. W. 901; Jew- 
hurst v. City of Syracuse, 108 N. Y. 
303, 15 N. E. 409; Seymour v. Vil- 
lage of Salamanca, 137 N. Y. 364, 
33 N. E. 3,04; Neal v. Town of Mar- 
ion, 129 N. C. 345, 40 S. E. 116; 
Gagnier v. City of Fargo, 11 N. D. 
73, 88 N. W. 1030; Phillips v. City 
of Huntington, 35 W. Va. 406, 14 



S.- E. 17. But see Knowlton v. Town 
of Pittsfield, 62 N. H. 535. 

280 city of Chicago v. Starr, 42 
111. 174; Stinson v. City of Gardi- 
ner, 42 Me. 248; Hamilton v. City of 
Detroit, 105 Mich. 514, 63 N. W. 
511; McLaughlin v. City of Phila- 
delphia, 142 Pa. 80, 21 Atl. 754; 
Gaughan v. Philadelphia, 119 Pa. 
503, 13 Atl. 300. See 991, ante. 

281 City of Chicago v. Keefe, 114 
111. 222; City of Indianapolis v. Em- 
melman, 108 Ind. 530, 9 N. E. 155; 
Murley v. Roche, 130 Mass. 330; 
Gulline v. Lowell, 144 Mass. 491, 
11 N. E. 723; Graham v. City of 
Boston, 156 Mass. 75, 30 N. E. 170; 
City of Vicksburg v. McLain, 67 
Miss. 4, 6 So. 774; Donoho v. Vul- 
can Iron Works, 75 Mo. 401; City 
of Omaha v. Richards, 49 Neb. 244, 
68 N. W. 528; Crawford v. Wilson, 
& Baillie Mfg. Co., 8 Misc. 48, 28 
N. Y. Supp. 514; McVee v. City of 
Watertown, 92 Hun, 306, 36 N. Y. 
Supp. 870; McGarry v. Loomis, 63 
N. Y. Supp. 104. "A point is made 
upon an exception to the remark of 
the judge, that the child had the 
right to play on the sidewalk. This 
language was used in connection 
with the remark that the child had 
a right to be on the sidewalk, and 
the whole force of the remark as to 
the right to play was, that being on 
the sidewalk, the fact of playing 
there would not constitute con- 



2310 



LIABILITY FOR NEGLIGENCE. 



1016 



their own yards. In a thickly settled portion of a large city, 
greater rights undoubtedly should be allowed residents in this 
respect than in country towns, suburban localities or portions of 
a city or town. The rule of exemption from liability where a 
highway is used for an improper purpose or for unusual loads or 
in an unusual manner applies equally to side and cross walks. 282 

1016. Duty; when absolute. 

The obligation to properly construct and maintain in a reason- 
ably safe condition applies to walks built by owners whether upon 
their own volition 28S or because of some ordinance or resolution 
requiring their construction. 284 In this particular, the duty can 
be said to be an absolute one as to the public corporation and can- 
not be evaded or shifted upon others. 285 A joint liability may 



tributary negligence so as to defeat 
a recovery- If it did not meaii 
this, it had no relevancy to the 
case, and was not, for that reason, 
error. There was no occasion for 
a charge as to the legal right of 
children to play on the sidewalk, 
to the exclusion of or interference 
with persons passing and repassing 
nor was any such idea intended. 
That it is not unlawful, wrongful 
or negligent for children to play on 
the sidewalk, is a proposition which 
it is too plain for comment." Mc- 
Guire v. Spence, 91 N. Y. Supp. 303; 
Gibson v. City of Huntington, 38 
W. Va. 177, 18 S. E. 447, 22 L. R. A. 
561; Reed v. City of Madison, 83 
Wis. 171, 53 N. W. 547, 17 L. R. A. 
733. 

282Kohlhof v. City of Chicago, 
192 111. 249, 61 N. E. 446. One can- 
not recover for injuries received 
from the breaking of a sidewalk 
where he was engaged in moving 
a safe upon it when the walk was 
reasonably safe for use in an or- 
dinary manner. Wheeler v. City of 
Boone, 108 Iowa, 235, 78 N. W. 909, 



44 L. R. A. 821. A city is under no 
obligation to keep its sidewalks 
reasonably safe for one riding a 
tricycle. Leslie v. City of Grand 
Rapids, 120 Mich. 28, 78 N. W. 885; 
Lee v. City of Port Huron, 128 Mich. 
533, 87 N. W. 637, 55 L. R. A. 308. 
Not necessary to keep a sidewalk 
in safe condition for bicycle rider. 
Morrison v. City of Syracuse, 53 
App. Div. 490, 65 N. Y. Supp. 939, 
Id., 45 App. Div. 421, 61 N. Y. Supp. 
313. 

ass Oliver v. Kansas City, 69 Mo. 
79; Hutchings v. Inhabitants of 
Sullivan, 90 Me. 131, 37 Atl. 883; 
Kinney v. City of Tekemah, 30 Neb. 
605, 46 N. W. 835. 

28* Webster v. City of Beaver 
Dam, 84 Fed. 280; Boucher v. City 
of New Haven, 40 Conn. 457; City 
of Aurora v. Bitner, 100 Ind. 396. 
But see Dooley v. Town of Sullivan, 
112 Ind. 451, 14 N. E. 566. 

285 Webster v. City of Beaver 
Dam, 84 Fed. 280; City of Denver 
v. Hickey, 9 Colo. App. 137, 47 Pac. 
908; City of Rock Island v. Starkey, 
189 111. 515, 59 N. E. 971; Shannon 



101 7, 1018 LIABILITY FOR NEGLIGENCE. 



2311 



exist, 286 but ordinarily an abutting owner is under no duty to the 
public to keep the sidewalk in front of his premises in repair. 287 

1017. Liability for defects. 

The same principles of law apply to the construction and main- 
tenance of side and cross walks as a part of the highway which 
have been considered in previous sections. 288 The liability may 
arise because of a defect in the construction of the improvement or 
in its condition. 

1018. Plan of improvement. 

It is quite universally held that a defect in the plan of construc- 
tion of a side or cross walk may lead to a liability. 289 Plan de- 



v. Town of Tama City, 74 Iowa, 22, 
36 N. W. 776; Barnes v. Town of 
Newton, 46 Iowa, 567; City of To- 
peka v. Sherwood, 39 Kan. 690, 18 
Pac. 933; Will v. Village of Mendon, 
108 Mich. 251, 66 N. W. 58; Fuller 
v. City of Jackson, 82 Mich. 480, 46 
N. W. 721; Graham v. City of Al- 
bert Lea, 48 Minn. 201, 50 N. W. 
1108; Chilton v. City of St. Joseph, 
143 Mo. 192, 44 S. W. 766; Black- 
well v. Hill, 76 Mo. App. 46; Lam- 
bert v. Pembroke, 66 N. H. 280, 23 
Atl. 81; Urquhart v. City of Ogdens- 
burgh, 97 N. Y. 238; Russell v. Vil- 
lage of Canastota, 98 N. Y. 496; 
City of Dallas v. Jones (Tex. Civ. 
App.) 54 S. W. 606; City of Dallas 
v. Meyers (Tex. Civ. App.) 55 S. W. 
742; Cuthbert v. City of Appleton, 
22 Wis. 642; McHugh v. Town of 
Minocqua, 102 Wis. 291, 78 N. W. 
478. But see City of Marquette v. 
Cleary, 37 Mich. 296. 

280 City of Lincoln v. O'Brien, 56 
Neb. 761, 77 N. W. 761; City of 
Lincoln v. Pirner, 59 Neb. 634, 81 
N. W. 846; Borough of Brookville 
v. Arthurs, 130 Pa. 501, 18 Atl. 1076; 
Borough of Wilkinsburg v. Home 
for Aged Women, 131 Pa. 109, 18 
Atl. 937, 6 L. R. A. 531; City of 



Reading v. Reiner, 167 Pa. 41, 3.1 
Atl. 357; Dutton v. Borough of 
Landsdowne, 198 Pa. 563, 48 Atl. 
494, 53 L. R. A. 469; City of Paw- 
tucket v. Bray, 20 R. I. 17, 37 Atl. 
1; Papworth v. City of Milwaukee, 
64 Wis. 389; Cooper v. Village of 
Waterloo, 88 Wis. 433, 60 N. W. 714. 

287 Martinovich v. Wooley, 128 
Cal. 141, 60 Pac. 760; City of Chi- 
cago v. Crosby, 111 111. 538; City 
of Keokuk v. Independent Dist., 53 
Iowa, 352; Fletcher v. Scotten, 74 
Mich. 212, 41 N. W. 901; Lynch v. 
Hubbard, 101 Mich. 43, 59 N. W. 
443. A liability may be imposed by 
law. Baustian v. Young, 152 Mo. 
317, 53 S. W. 921; City of Rochester 
v. Campbell, 123 N. Y. 405, 25 N. E. 
937, 10 L. R. A. 393; Sneeson v. 
Kupfer, 21 R. L 560, 45 Atl. 579; 
Raymond v. City of Sheboygan, 76 
Wis. 335; Fife v. City of Oshkosh, 
89 Wis. 540, 62 N. W. 541. But see 
City of Detroit v. Chaffee, 70 Mich. 
80, 37 N. W. 882; City of Wabasha 
v. Southworth, 54 Minn. 79, 55 N. 
W. 818; Devine v. City of Fond du 
Lac, 113 Wis. 61, 88 N. W. 913. 

288 see 1001 et seq. 

289 City of Birmingham v. Starr, 
112 Ala. 98; Smith v. City of Pella, 



2312 



LIABILITY FOR NEGLIGENCE. 



1018 



fects usually involve questions in respect to the grade, whether 
too steep under existing conditions, 290 the height 291 of steps or 
their location, 292 the absence of railings or barriers at or near 
dangerous excavations or embankments, 293 uneven places, 29 * and 
height above ground. 295 



86 Iowa, 236, 53 N. W. 226; Ledger- 
wood v. Webster City, 93 Iowa, 726; 
dity of Newport v. Miller, 13 Ky. 
L. R. 889, 18 S. W. 835; Bigelow v. 
City of Kalamazoo, 97 Mich. 121, 
56 N. W. 339. Particular construc- 
tion held not defective in plan. 
Weisse v. City of Detroit, 105 Mich. 
482; Burrows v. Borough of Lake 
Crystal, 61 Minn. 357; Poole v. City 
of Jackson, 93 Tenn. 62, 23 S. W. 
57; Yeager v. City of Bluefield, 40 
W. Va. 484. See, also, note 27 Am. 
& Eng. Corp. Cas. 91. But see 
Hoyt v. City of Danbury, 69 Conn. 
341, 37 Atl. 1051. The adoption by 
municipal officers for the construc- 
tion of a sidewalk is the exercise 
of a governmental duty quasi ju- 
dicial in character. City Council 
of Augusta v. Little, 115 Ga. 124, 
41 S. E. 238. 

290 white v. City of Trinidad, 10 
Colo. App. 327, 52 Pac. 214; Haskell 
v. City pf Des Moines, 74 Iowa, 110, 
37 N. W. 6; Readdy v. Borough of 
Shamokin, 137 Pa. 98, 20 Atl. 396; 
Perkins v. Fond du Lac, 34 Wis. 
435; Schroth v. City of Prescott, 
63 Wis. 652; Morrison v. City of 
Madison, 96 Wis. 452, 71 N. W. 882. 
No liability. City of Depere v. Hib- 
bard, 104 Wis. 666, 80 N. W. 933. 

291 City of Indianapolis v. Mitch- 
ell, 27 Ind. App. 589, 61 N. E. 947; 
Shippy v. Village of Au Sable, 85 
Mich. 280, 48 N. W. 584; Tabor v. 
City of St. Paul, 36 Minn. 188, 30 
N. W. 765; Biermann v. City of St. 
Louis, 120 Mo. 457, 25 S. W. 369; 
Berg v. City of Milwaukee, 83 Wis. 



599, 53 N. W. 890. But see Teager 
v. City of Flemingsburgs, 22 Ky. 
L. R. 1442, 60 S. W. 718; Miller v. 
City of St. Paul, 38 Minn. 134, 36 
N. W. 271. 

292 But see City of Roanoke v. 
Harrison (Va.) 19 S. E. 179. 

293 city of Chicago v. Gallagher, 
44 111. 295; Town of Normal v. 
Webb, 91 111. App. 183; Village of 
Cartersville v. Cook, 129 111. 152, 
22 N. E. 14, 4 L. R. A. 721; Hogan 
v. City of Chicago, 168 111. 551, 48 
N. E. 210; Knouff v. City of Logans- 
port, 26 Ind. App. 202, 59 N. E. 317; 
City of Portland v. Taylor, 125 Ind. 
522, 25 N. E. 459; Bridgeman v. 
City of Missouri Valley (Iowa) 88 
N. W. 1069; Damon v. City of Bos- 
ton, 149 Mass. 147, 21 N. E. 235; 
Nichols v. City of St. Paul, 44 Minn. 
494, 47 N. W. 168; Bennett v. Vil- 
lage of Sing Sing, 60 Hun, 579, 14 
N. Y. Supp. 463; Donnelly v. City 
of Rochester, 166 N. Y. 315, 59 N. 
E. 989; Bunch v. Town of Edenton, 
90 N. C. 431; Lenich v. Beaver, 199 
Pa. 420, 49 Atl. 220. 

284 Patterson v. City of Council 
Bluffs, 91 Iowa, 732, 59 N. W. 6b; 
Sawyer v. Newburyport, 157 Mass. 
430, 32 N. E.' 653; City of Aurora 
v. Cox, 43 Neb. 727, 62 N. W. 66; 
Village of Plainview v. Mendelson, 
65 Neb. 85, 90 N. W. 956. The duty 
to keep in repair extends to travel 
by night as well as day. 

295 Shaw v. President, etc., of Sun 
Prairie, 74 Wis. 105, 42 N. W. 271. 
But see City of Sumner v. Scaggs, 
52 111. App. 551. 



1019 



LIABILITY FOR NEGLIGENCE. 



2313 



Actual work of construction. There is no question but that a 
public corporation, where it is charged with the duty of construct- 
ing walks and cross walks is liable for negligence in the actual 
work of construction or repair. 296 

1019. Defects in condition. 

The duty, when existing, applies to defects arising from acts of 
either private persons or the public corporation itself, 297 and 
whether caused by the construction or repair of the improve- 
ment 298 or by subsequent neglect or act. 299 The liability applies, 
however, only to actual defects as distinguished from latent, using 
that term in its proper sense. Actionable negligence cannot be 
predicated upon the existence of a latent defect which it is impos- 
sible to discover through ordinary agencies or means by the exer- 
cise of ordinary care and diligence. 300 The rule is the same in re- 
spect to all portions of a highway. Common defective conditions 



296 city of Topeka v. Sherwood, 
39 Kan. 690, 18 Pac. 933. 

297 city of Birmingham v. Mc- 
Cary, 84 Ala. 469, 4 So. 630; City 
of Huntington v. Breen, 77 Ind. 29 ; 
Baumeister v. Markham, 19 Ky. L. 
R. 308, 39 S. W. 844, 41 S. W. 816; 
Hembling v. City of Grand Rapids, 
59 Mich. 292, 58 N. W. 310; Bor- 
ough of Sandy Lake v. Forker, 13.0 
Pa. 123; Smalley v. City of Apple- 
ton, 75 Wis. 18. 

298 Cummings v. City of Hartford, 
70 Conn. 115, 38 Atl. 916; Town of 
Boswell v. Wakley, 149 Ind. 64, 48 
N. E. 637; Ronn v. City of Des 
Moines, 78 Iowa, 63; Alexander v. 
City of Big Rapids, 70 Mich. 224, 
38 N. W. 227; Whitfield v. City of 
Meridian, 66 Miss. 570, 4 L. R. A. 
834; City of Lincoln v. Calvert, 39 
Neb. 305, 58 N. W. 115. But see 
Heidenwag v. City of Philadelphia, 
168 Pa. 72, 31 Atl. 1063. 

299 City of Atlanta v. Martin, 88 
Ga. 21, 13 S. E. 805; City of Joliet 
v. McCraney, 49 111. App. 381; City 



of Aurora v. Hilman, 90 111. 61; City 
of Evansville v. Frazer, 24 Ind. App. 
628, 56 N. E. 729; City of Atchison 
v. King, 9 Kan. 550; Burrows v. 
Village of Lake Crystal, 61 Minn. 
357, 63 N. W. 745; Peterson v. Vil- 
lage of Cokato, 84 Minn. 205, 87 
N. W. 615; Saulsbury v. Village of 
Ithaca, 94 N. Y. 27. 

soo City of Columbus Y. Ogletree, 
102 Ga. 293; Kenyon v. City of In- 
dianapolis, 1 Wils. (Ind.) 129; 
Mulliken v. City of Corunna, 110 
Mich. 212; Burleson v. Village of 
Reading, 110 Mich. 512; Gubasko 
v. City of New York, 14 Daly, 559, 
1 N. Y. Supp. 215; Fitzpatrick v. 
Borough of Darby, 184 Pa. 645, 39 
Atl. 545; City of Jackson v. Pool, 
91 Tenn. 448, 19 S. W. 324; City of 
Lynchburg v. Wallace, 95 Va. 640; 
City of Ripon v. Bittel, 3,0 Wis. 614. 
Where a sidewalk is old and rotten 
and unsafe, these defects will not 
be considered latent ones. Cooper 
v. City of Milwaukee, 97 Wis. 458. 



2314 



LIABILITY FOR NEGLIGENCE. 



1019- 



are smooth and slippery walks or cross walks, 301 broken, loose or 
defective planks, stones or bricks, 302 holes in the walk or cross 
walk, 303 projecting nails, or 30 * other obstructions 305 of a similar 
character, inequalities in the surface, 306 or decayed materials. 307 



sol Dooley v. City of Meriden, 44 
Conn. 117; Lyon v. City of Logans- 
port, 9 Ind. App. 21, 35 N. E. 128; 
Cromarty v. City of Boston, 127 
Mass. 329; Fairgrieve v. City of 
Moberly, 39 Mo. App. 31. But no 
liability exists where a crossing is 
made temporarily slippery from 
natural causes. Leonard v. City ot 
Butte, 25 Mont. 410, 65 Pac. 425; 
Yeager v. City of Bluefield, 40 W. 
Va. 484, 21 S. E. 752. No liability 
for the slippery condition caused 
by the accumulation of mud. 

302 city of Rome v. Baker, 107 
Ga. 347, 33 S. E. 406; City of Joliet 
v. Youngs, 61 111. App. 589; City 
of Chicago v. Murphy, 84 111. 224; 
Ronn v. City of Des Moines, 78 
Iowa, 63, 42 N. W. 582; Riley v. 
Town of Iowa Falls, 83 Iowa, 761, 
50 N. W. 33; Troxel v. City of Vin- 
ton, 77 Iowa, 90, 41 N. W. 580; 
City of Wickliffe v. Moring, 24 Ky. 
L. R. 419, 68 S. W. 641; Noyes v. 
Gardner, 147 Mass. 505, 18 N. E. 
423; Moon v. City of Ionia, 81 Mich. 
635, 46 N. W. 25; Weisse v. City of 
Detroit, 105 Mich. 482, 63 N. W. 
423. A cross walk containing a 
loose plank, the end of which is 
raised two inches above the level 
of the walk is reasonably safe and 
no liability follows from injuries re- 
ceived by reason of it. See, also, 
Village of Yotter v. City of Detroit, 
107 Mich. 4, 64 N. W. 743. 

City of Lincoln v. Staley, 32 Neb. 
63, 48 N. W. 887; Chacey v. City of 
Fargo, 5 N. D. 173, 64 N. W. 932; 
Schively v. Borough of Jenkintown, 
180 Pa. 196, 36 Atl. 754; Morris v. 



City of Philadelphia, 195 Pa. 372, 

45 Atl. 1068. No recovery. Moore 
v. City of Platteville, 78 Wis. 644, 
47 N. W. 1055; McHugh v. Town of 
Minocqua, 102 Wis. 291, 78 N. W. 
478. 

303 Seward v. City of Wilmington, 
2 Marv. (Del.) 189, 42 Atl. 451; 
City of Chicago v. Chase, 33 111. 
App. 551; City of Bloomington v. 
Mueller, 71 111. App. 268; Schmidt 
v. Chicago & N. W. Co., 83 111. 405; 
Michigan City v. Ballance, 123 Ind. 
334; Cressy v. Town of Postville, 
59 Iowa, 62; City of Lawrence v. 
Davis, 8 Kan. App. 225, 55 Pac. 492; 
City of Columbus v. Neise, 63 Kan. 
885, 65 Pac. 643; Marvin v. City of 
New Bedford, 158 Mass. 464, 33 N. 
E. 605; Tice y. Bay City, 84 Mich. 
461, 47 N. W. 1062; City of Lincoln 
v. Staley, 32 Neb. 63; Neal v. Town 
of Marion, 129 N. C. 345, 40 S. E. 
116; Gschwend v. Borough of Mill- 
vale, 159 Pa. 257, 28 Atl. 139; Kane 
v. City of Philadelphia, 196 Pa. 502, 

46 Atl. 893; Yearance v. Salt Lake 
City, 6 Utah, 398. 

3o*Doulon v. City of Clinton, 33 
Iowa, 397. 

aos Town of Watertown v. Greaves 
(C. C. A.) 112 Fed. 183, 56 L. R. A. 
865; City of Denver v. Stein, 25 
Colo. 125, 53 Pac. 283; City of Tay- 
lorville v. Stafford, 196 111. 288, 63 
N. E. 624; City of Terre Haute v. 
Constans, 26 Ind. App. 421, 59 N. E. 
1078; Baxter v. City of Cedar Rap- 
ids, 103 Iowa, 599, 72 N. W. 790; 
Redford v. City of Woburn, 176 
Mass. 520, 57 N. E. 1008. Water 
shut-off box. Lamb v. City of WOP- 



1020 



LIABILITY FOR NEGLIGENCE. 



2315 



1020. Obstructions as defects. 

Objects may be placed in or near side or cross walks which, by 
their condition, 308 or the mere fact of their location, 309 will be 
regarded as actionable defects where injuries are sustained be- 
cause of them. There are obstructions, however, which are neces- 
sary and lawful by reason of a mode of living, some public or pri- 
vate improvement 31 or by force of some statute. These, it neces- 
sarily follows, are not defects which the corporation is bound to 
remedy. 



cester, 177 Mass. 82, 58 N. E. 474. 
Projecting hinges. Loan v. City of 
Boston, 106 Mass. 450; Sneeson v. 
Kupfer, 21 R. I. 560, 45 Atl. 579. 
But see Town of Gosport v. Evans, 
112 Ind. 133, 13 N. E. 256; Bucher 
v. City of South Bend, 20 Ind. App. 
177, 50 N. E. 412; City of Covington 
v. Manwaring, 24 Ky. L. R. 423, 68 
S. W. 625. 

sos Labarre v. City of New Or- 
eans, 106 La. 458, 30 So. 891; Blume 
v. City of New Orleans, 104 La. 345, 
29 So. 106; Haggerty v. City of 
Lewiston, 95 Me. 374, 50 Atl. 55; 
Williams v. West Bay City, 126 
Mich. 156, 85 N. W. 458; Bieber v. 
City of St. Paul, 87 Minn. 3,5, 91 N. 
W. 20; Clemence v. City of Auburn, 
66 N. Y. 334; Beltz v. City of Yonk- 
ers, 148 N. Y. 67, 42 N. E. 401; 
Kellow v. City of Scranton, 195 Pa. 
134, 45 Atl. 676; Bowen v. City of 
Huntington, 35 W. Va. 682, 14 S. 
E. 217. But see City of Hartford \. 
Graves, 8 Kan. App. 677, 57 Pac. 
133; Morgan v. City of Lewiston, 91 
Me. 566, 40 Atl. 545; Newton v. 
City of Worcester, 174 Mass. 181, 
54 N. E. 521; McCarthy v. City of 
Lockport, 13 App. Div. 494, 43 N. 
Y. Supp. 693. 

SOT Furnell v. City of St. Paul, 20 
Minn. 117 (Gil. 101); Hall v. City 



of Austin, 73 Minn. 134, 75 N. W". 
1121; Stern v. Bensieck, 161 Mo. 
146, 61 S. W. 594; Williams v. City 
of Hannibal, 94 Mo. App. 549, 68 S. 
W. 380; purham v. City of Spokane, 
27 Wash. 615, 68 Pac. 383; Weisen- 
berg v. City of Appleton, 26 Wis. 
56; Laue v. City of Madison, 86 
Wis. 453, 57 N. W. 93. 

308 Bibbins v. City of Chicago, 19? 
111. 359, 61 N. E. 1030, reversing 94 
111. App. 319 ; Jones v. City of Deer- 
ing, 94 Me. 165, 47 Atl. 140; Pitten- 
ger v. Town of Hamilton, 85 Wis. 
356, 55 N. W. 423. See, also, notes 
10 L. R. A. 473, 734. 

soa City Council of Augusta v. 
Tharpe, 113 Ga. 152, 38 S. E. 389; 
Parmenter v. City of Marion, 113 
Iowa, 297, 85 N. W. 90. Platform 
on a level with second story not 
necessarily a defect. Whittal v. 
City of New York, 64 N. Y. Supp. 
250. But see Town of Lewisville 
v. Batson, 29 Ind. App. 21, 63 N. E. 
861. As to liability for obstruction 
placed on sidewalk by a third 
person. 

sio Jordan v. City of New York, 
165 N. Y. 657, 59 N. E. 1124, affirm- 
ing 44 App. Div. 149, 60 N. Y. Supp. 
696; City of Richmond v. Leaker, 
99 Va. 1, 37 S. E. 248. 



2316 



LIABILITY FOR NEGLIGENCE. 



1021 



1021. Ice and snow as defects. 

The mere presence of ice or snow upon a sidewalk may not be 
regarded as an actionable defect. The courts differ in their con- 
clusions. The question should be regarded, ordinarily, from the 
standpoint of sound common sense. Climatic conditions and the 
financial ability of a municipality determine the liability or non- 
liability in many cases. The mere presence of ice, sleet or snow as 
naturally deposited and where there are no other defects in the 
way or walk, is not, by weight of authority, regarded as a de- 
fect. 311 The leading cases are referred to in the notes. The accu- 
mulation of ice or snow in ridges or masses may, however, give 
rise to liability if other elements of actionable negligence exist. 312 
The rule also applies where the accumulations have been caused by 
.artificial or extrinsic means rather than natural causes. 313 A side- 
walk may also be defective by being so improperly constructed as 



sii Village of Gibson v. Johnson, 
4 111. App. 288; City of Chicago v. 
McGiven, 78 111. 347; City of Sa- 
vanna v. Trusty, 98 HI. App. 277; 
City of Quincy v. Barker, 81 111. 
300; Ford v. City of Des Moines, 
106 Iowa, 94, 75 N. W. 630; Nason 
v. City of Boston, 96 Mass. (14 
Allen) 508; Lawless v. City of 
Troy, 63 Hun, 632, 18 N. Y. Supp. 
506; O'Reilly v. City of Syracuse, 
49 App. Div. 538, 63 N. Y. Supp. 
520. The rule also applies to an even 
accumulation of mud. Ayres v. Vil- 
lage of Hammondsport, 130 N. Y. 
665, 29 N. E. 265. But see Stanton 
v. City of Springfield, 94 Mass. (12 
Allen) 566. The court in passing 
upon the principle stated in the 
text said: "It would require of all 
the towns an examination of all 
their roads so incessant and min- 
ute, and the application of an ef- 
ficient remedy would be so labori- 
ous and expensive, that it would be 
manifestly unreasonable to require 
or expect it. The freezing mist of 
a single night may glaze over the 



whole territory of a town. The for- 
mation of thin but slippery ice in 
our climate is an effect which may 
be so suddenly and extensively pro- 
duced, and which may continue or 
be renewed for such a length of 
time, that it would be extremely 
difficult if not impossible for 
towns to make adequate provisions 
against it." Adams v. Chicopee, 
147 Mass. 440, 18 N. E. 231; Mc- 
Donald v. City of Ashland, 78 Wis. 
251, 47 N. W. 434. See, also, note 
10 L. R. A. 178. 

312 Gerald v. City of Boston, 108 
Mass. 580; Keane v. Village of Wat- 
erford, 130 N. Y. 188, 29 N. E. 130. 

313 City of Baltimore v. Marriott, 
9 Md. 160; Magaha v. Hagerstown, 
95 Md. 62; Reedy v. St. Louis Brew- 
ing Ass'n, 161 Mo. 523, 61 S. W. 
859, 53 L. R. A. 805; Ely v. Village 
of Whitehall, 120 N. Y. 506, 24 N. 
E. 943; Miller v. City of Bradford,' 
186 Pa. 164, 40 Atl. 409. But see 
Gavett v. City of Jackson, 109 Mich. 
408, 67 N. W. 517, 32 L. R. A. 861. 



1022, 1023 LIABILITY FOR NEGLIGENCE. 



231T 



to induce a special or constant deposit of ice and snow in a par- 
ticular locality. 314 Blocks of ice may also be obstructions as much 
as any other object or substance lying in the road. 

1022. Proximity of defects. 

If the defects exist in the side or cross walk itself, the question 
of liability is easily determined. The particular defect, however, 
causing an injury may not be, and this is especially true of exca- 
vations, and embankments, in the walk itself or immediately ad- 
jacent to it, but in close proximty. 315 In these cases the law prop- 
erly limits the liability to those instances where the defect com- 
plained of is so close as to require special protection. 316 

1023. Falling or dangerous objects. 

Injuries may occur through falling objects thrown from build- 
ings near the highway or by the fall of dangerous objects directly 
contiguous to or upon the walk. A liability seems to exist in these 
cases. 317 It is the duty of a public corporation, if one exists, to 
remove or cause to be removed, dangerous buildings, trees or other 
objects which, by their fall, may cause injury to those using the 
highway for a proper purpose. 318 A municipality is not required, 



si* Ford v. City of Des Moines, 
106 Iowa, 94, 75 N.'W. 630; Hodges 
v. City of Waterloo, 109 Iowa, 444, 
80 N. W. 523; Hughes v. City of 
Lawrence, 160 Mass. 474, 36 N. E. 
485 ; Navarre v. City of Benton Har- 
bor, 126 Mich. 618, 86 N. W. 138; 
Wesley v. City of Detroit, 117 Mich. 
658, 76 N. W. 104. But see Beek- 
man v. City of New York, 18 Misc. 
509, 41 N. Y. Supp. 990; Morrison 
v. City of Madison, 96 Wis. 452, 71 
N. W. 882. 

siBTheissen v. City of Belle 
Plaine, 81 Iowa, 118; Foxworthy v. 
City of Hastings, 31 Neb. 825; 
Sweeney v. Village of Newport, 65 
N. H. 86; Moore v. City of Platte- 
ville, 78 Wis. 644. 

sis City of Columbus v. Pearson, 
82 Ga. 288, 9 S. E. 1102; City of 



Mount Vernon v. Brooks, 39 III. 
App. 426; Randall v. City of Lowell, 
156 Mass. 255, 3,0 N. E. 1020; Year- 
ance v. Salt Lake City, 6 Utah, 398, 
24 Pac. 254; Fitzgerald v. City of 
Berlin, 64 Wis. 203. 

SIT Langan v. City of Atchison, 35 
Kan. 318; Weller v. McCormick, 47 
N. J. Law, 397; second trial, 52 N. 
J. Law, 470, 8 L. R. A. 798. Owner 
of a lot held liable for injury to a 
passerby by fall of limb from tree. 
See, also, Taylor v. Peckham, 8 R. I. 
349; Thomp. Neg., 1206 and 6103. 

sis Jones v. City of New Haven, 
34 Conn. 1; Parmenter v. City of 
Marion, 113 Iowa, 297, 85 N. W. 90; 
Kiley v. Kansas City, 69 Mo. 102; 
Beall v. City of Seattle, 28 Wash. 
593, 69 Pac. 12, 61 L. R. A. 583. 
City liable for injuries resulting: 



2318 



LIABILITY FOR NEGLIGENCE. 



1024 



however, to protect passersby from the effect of articles thrown 
from buildings or other places by private persons. 

1024. Bridges, viaducts and similar structures. 

Bridges, viaducts and similar structures used for public travel 
are legally regarded as public highways. The existence of a duty 
of public corporations in respect to their construction and main- 
tenance, depends in the first instance upon the character of the 
corporation having control of them. If within the limits and under 
the jurisdiction of quasi corporations following the usual rule, no 
liability can arise for injuries resulting from defects in their con- 
struction or maintenance. 319 In many states, however, by statute, 
a liability is specifically imposed upon quasi corporations, especi- 
ally towns or counties, in respect to bridges where none exists as 
to other portions of the highway. 320 lia other cases it is held that 



for explosion of boiler located un- 
der sidewalk. But see Hixon v. 
City of Lowell, 79 Mass. (13 Gray) 
59. No liability for fall of over- 
hanging mass of ice and snow on 
roof of private building. Village of 
Oak Harbor v. Kahagher, 52 Ohio 
St. 183, 39 N. E. 144. No liability 
for fall of bill board blown down 
by an extraordinary wind. 

319 El Paso County Com'rs v. 
Bish, 18 Colo. 474, 33 Pac. 184; 
Davis v. Ada County, 5 Idano, 12ft, 
47 Pac. 93; Marion County Com'rs 
v. Riggs, 24 Kan. 255; King v. Po- 
lice Jury of St. Landry, 12 La. Ann. 
858; Leoni Tp. v. Taylor, 20 Mich. 
148; Pundman v. St. Charles Coun- 
ty, 110 Mo. 594, 19 S. W. 73.3; Clark 
v. Adair County, 79 Mo. 536; Brab- 
ham v. Hinds County Sup'rs, 54 
Miss. 363; Woods v. Coif ax County 
Com'rs, 10 Neb. 552; Cooley v. 
Chosen Freeholders of Essex, 27 
N. J. Law, 415; Livermore v. 
Chosen Freeholders of Camdeii 
County, 29 N. J. Law, 245; Heigel 
v. Wichita County, 84 Tex. 392, 19 



S. W. 562. See, also, Monroe Coun- 
ty v. Flint, 80 Ga. 489; Merkle v. 
Bennington Tp., 68 Mich. 133. 

320 Eastman v. Clackamas Couu- 
ty, 32 Fed. 24; Lee County v. Yar- 
brough, 85 Ala. 590, 5 So. 341 ; Cook 
v. De Kalb County, 95 Ga. 218, 22 
S. E. 151; Helvingston v. Macon 
County, 103 Ga. 106, 29 S. E. 596; 
Willingham v. Elbert County, 113 
Ga. 15, 38 S. E. 348; Davis v. Home, 
64 Ga. 69; De Kalb County v. Cook, 
97 Ga. 415, 24 S. E. 157; Wabash 
County Com'rs v. Pearson, 120 Ind. 
426, 22 N. E. 134; Knox County 
Com'rs v. Montgomery, 109 Ind. 69, 
9 N. E. 590; Howard County Com'rs 
v. Legg, 110 Ind. 479, 11 N. E. 612; 
Jackson County Com'rs v. Nichols, 
139 Ind. 611, 38 N. E. 526; Cooper 
v. Mills County, 69 Iowa, 350; 
Eginoire v. Union County, 112 Iowa, 
558, 84 N. W. 758; Faulk v. Iowa 
County, 103 Iowa, 442; Atchison 
County Com'rs v. Sullivan, 7 Kan. 
App. 152, 53 Pac. 142: Doherty v. 
Inhabitants of Braintree, 148 Mass. 
495, 20 N. E. 106; Hollingsworth v. 



1024 



LIABILITY FOR NEGLIGENCE. 



where a quasi corporation is charged, by law, with a specific duty 
of constructing and maintaining bridges, viaducts and other simi- 
lar structures, a liability will result, implied or otherwise, for a 
failure to construct them in a careful and proper manner and 
maintain them in a reasonably safe condition for public travel. 321 
If under the control of municipal corporations proper, a liability 
will depend upon the principles noted in sections 984 et seq. 32 - 
The duty, under whatever circumstances it may arise, is that which 
lias been stated in previous sections, namely to construct and 
maintain in a reasonably safe condition for ordinary travel by 
those using that particular part of the highway in a proper 
manner. 323 Under no conditions can a public corporation be re- 
garded as an insurer of the safety of those using highways or any 
part even for proper purposes. 324 Where a liability is imposed by 
statute upon counties or other quasi corproations, before a re- 
covery can be had in a specific instance, the character of the 
bridge must be established as one coming within the meaning of 
the statute 325 and further, one that the corporation was especially 



Saunders County, 36 Neb. 141, 54 
N. W. 79 ; Humphreys v. Armstrong 
County, 3 Brewst. (Pa.) 49; Newlin 
Tp. v. Davis, 77 Pa. 317; Francis v. 
Franklin Tp., 179 Pa. 195, 36 Atl. 
202; Town of Saukville v. State, 69 
Wis. 178, 33 N. W. 88. See, also, 
Mappin v. Washington County, 92 
Ga. 130, 17 S. E. 1009. 

S2i Town of Mechanicsburg v. 
Meredith, 54 111. 84; Pritchett v. 
Morgan County Com'rs, 62 Ind. 210; 
Perry v. Barnett, 65 Ind. 522; Hus- 
ton v. Iowa County, 43 Iowa, 456; 
Kirtley v. Spokane County, 20 
Wash. Ill, 54 Pac. 936; Barnett v. 
Contra Costa County, 67 Cal. 77; 
Reardon v. St. Louis County, 3b 
Mo. 555; Sussex County Chosen 
Freeholders v. Strader, 18 N. J. 
Law, 108; Ensign v. Livingstone 
County Sup'rs, 25 Hun (N. Y.) 20. 

322 Weightman v. Washington 
Corp., 1 Black. U. S. 38; City of 
Eudora v. Miller, 30 Kan. 494; Quin- 
lan v. Village of Manistique, 85 



Mich. 22. But see Scott v. Des 
Moines, 34 Iowa, 552. Where there 
is no obligation to maintain a 
bridge, a municipal corporation is 
not liable for injuries resulting 
from its defective condition. 

sas White v. Riley Tp., 121 Mich. 
413, 80 N. W. 124. 

324 Wilson v. Town of Granby, 47 
Conn. 59; Wabash County Com'rs 
v. Pierson, 120 Ind. 426, 22 N. E. 
134; Blank v. Livonia Tp., 79 Mich. 
1, 44 N. W. 157; Koenig v. Town of 
Arcadia, 75 Wis. 62, 43 N. W. 734. 

325 Covington County v. Kinney, 
45 Ala. 176; Tattnall County v. 
Newton, 112 Ga. 779, 38 S. E. 47; 
Reinhart v. Martin County Com'rs 
9 Ind. App. 572, 37 N. E. 38; Soper 
v. Henry County, 26 Iowa, 264; 
Casey v. Tama County, 75 Iowa, 
655, 37 N. W. 138; Moreland v. 
Mitchell County, 40 Iowa, 3,94; 
Chandler v. Fremont County, 42 
Iowa, 58; Taylor v. Davis County, 
40 Iowa, 295. 



2020 



LIABILITY FOR NEGLIGENCE. 



1025, 1026- 



authorized to construct. If without authority in this latter re- 
spect, no liability can follow from a failure to maintain the unau- 
thorized structure even in a reasonably safe condition. 328 

In determining upon the construction of a bridge, a public cor- 
poration is exercising a discretionary power, as it has sometimes 
been held, is performing a governmental duty. Action or inaction 
in this respect, therefore, can lead to no liability. 327 

1025. Definition of bridge. 

The term "bridge" is applied to structures designed for public 
use and crossing at an elevation, bodies of water, watercourses, 
steam or street railways, other roads or other impediments to 
travel, 328 and includes as a component part, the approaches and 
abutments of the bridge proper, as commonly understood, whether 
these are solid embankments or otherwise. 329 



1026. Liabilty; how affected. 

The failure to properly perform the duty does not, in all cases, 
lead to liability. This, as has been said many times, is predicated 
solely upon negligence, 330 and is further dependent upon the fact 



26 Roberts v. Cleburne County, 
116 Ala. 378, 22 So. 545; Sims v. 
Butler County, 49 Ala. 110; Spencer 
v. Hudson County Chosen Free- 
holders, 66 N. J. Law, 301, 49 Atl. 
483; Greek v. Town of Bridge 
Creek, 38 Wis. 450. 

327 Kinne v. Town of New Haven, 
32 Conn. 210; Hall v. Town of Oys- 
ter Bay, 171 N. Y. 646, 63 N. E. 
1117, affirming 61 App. Div. 508, 
70 N. Y. Supp. 710. 

328 Carroll County Com'rs v. 
Bailey, 122 Ind. 46, 23 N. E. 672. 
Jones, Neg. Mun. Corp. 106. 

329 Town of Tolland v. Town of 
Willington, 26 Conn. 578; City of 
New Haven v. New York & N. H. 
R. Co., 39 Conn. 128. But in the 
apportionment of expense for the 
construction of bridges crossing 
the streets as between a railroad 



company and a city, the meaning 
of the word "bridge" is restricted 
to the bridge proper excluding em- 
bankments, approaches, etc. Drift- 
wood Valley Turnpike Co. v. Bar- 
tholomew County Com'rs, 72 Ind. 
226; Albee v. Floyd County, 46 
Iowa, 177; Jessup v. Osceola Coun- 
ty, 92 Iowa, 178, 60 N. W. 485; 
Eginoire v. Union County, 112 Iowa, 
558, 84 N. W. 758; City of Eudora 
v. Miller, 30 Kan. 494; Williams v. 
Village of Petoskey, 108 Mich. 260, 
66 N. W. 55; Dalton v. Upper Ty- 
rone Tp., 137 Pa. 18, 20 Atl. 637; 
Tyler v. Williston, 62 Vt. 269, 29 
Atl. 304, 9 L. R. A. 338; Bishop v. 
City of Centralia, 49 Wis. 669. 

sso Lindley v. City of Detroit, 131 
Mich. 8, 90 N. W. 665; Eads v. City 
of Marshall (Tex. Civ. App.) 29 S- 
W. 170. See 992, ante. 



1026 



LIABILITY FOR NEGLIGENCE. 



2321 



of whether or not the act or the omission complained of was the 
proximate cause of the injury as discussed in sections 592, 993, 
and 1059. 331 

Contributory negligence and notice. A liability is further de- 
pendent upon freedom from contributory negligence on the part 
of the one injured 332 and finally upon the element of notice. Not 
only must the defect exist but it must have existed for that length 
of time as to give the corporation having charge of the highway a 
reasonable opportunity to remedy it. Notice of the defect may be 
either actual or constructive. By constructive notice is commonly 
understood a defective condition existing for such a length of 
time as to charge by law the corporation with a knowledge of 
it. 333 Actual notice is where written or oral information is had or 
given of the defect by or to those public officers charged by law 
with the duty of making or authorizing the repairs necessary. 33 * 
Actual notice to be effectual must be given to those officials who 
are specially charged by law with the duty of attending to such 
matters. 335 The authority of public officials to bind their principal 
is exceedingly limited, not only in respect to acts of their own, 
but also in connection with admissions by them, the service of pro- 
cess or notice upon, or the possession of information by them. 336 



S3i City of Chicago v. O'Malley, 
95 111. App. 355; McClain v. Town 
of Garden Grove, 83 Iowa, 235, 48 
N. W. 1031, 12 L. R. A. 482; Wai- 
rod v. Webster County, 110 Iowa, 
349, 81 N. W. 598, 47 L, R. A. 480; 
Page v. Town of Bucksport, 64 Me. 
51; Carleton v. Inhabitants of Cara- 
bou, 88 Me. 461, 34 Atl. 269; White 
v. Riley Tp., 113 Mich. 295, 71 
N. W. 502. Question of proximate 
cause one for jury. Minkley v. 
Springwells Tp., 113 Mich. 347, N. 
W. 649. Question for jury. Shaw 
v. Saline Tp. 113 Mich. 342, 71 N. 
W. 642; Rohrbough v. Barbour 
County Ct. 39 W. Va. 472, 20 S. E. 
565. 

332 Compton v. Town of Revere, 
179 Mass. 413, 60 N. E. 931; Acht- 



Abb. Corp. Vol. Ill 22. 




enhagen v. City of Watertown, 18 
Wis. 331. 

sss Reiss v. Town of Pelham, 53 
App. Div. 459, 65 N. Y. Supp. 1033, 
See 1033 et seq., post. 

334 City of Atlanta v. Buchanan, 
76 Ga. 585. Where floor planks- 
are left unfastened by city em- 
ployes in the reconstruction of a 
bridge, notice of this defect to 
them is notice to the city. Brad- 
bury v. Inhabitants of Lewiston, 95 
Me. 216, 49 Atl. 1041. Facts con- 
sidered and held sufficient to con- 
stitute actual notice of the defects. 
See, also, 1033 et seq., post. 

sss See 1033 et seq., post. 

336Q'Neil v. Deerfleld Tp., 86 
Mich. 610, 49 N. W. 596; Shaw v. 
Town of Potsdam, 11 App. Div. 
508, 42 N. Y. Supp. 779. 



2322 



LIABILITY FOR NEGLIGENCE. 



1027 



1027. Liability for defects in construction. 

A liability may follow where the duty exists in the construction 
of the bridge or similar structure in respect to either the plan or 
the improvement or in connection with the actual manual work 
of repair or construction. 337 Defects in plan involve a determina- 
tion with others of the questions of grade, location or sufficient 
strength. 338 A public corporation is only bound to provide a 
structure sufficiently strong to accommodate ordinary travel, 31 " 
carry ordinary loads, or those specified by statute/'' 40 and resist 
ordinary storms of any character. A difference of traffic, locality 
or climate, it will be readily be seen varies the duty. 341 The plan 
also involves the construction of railings or guards and the width 



837 Vickers v. Cloud County 
Com'rs, 59 Kan. 86, 52 Pac. 73; 
Walsh v. City of New York, 107 N. 
Y. 220, 13 N. E. 911; Walsh v. New 
York & Brooklyn Bridge, 96 N. Y. 
437. 

S38 Gray v. Borough of Danbury, 
54 Conn. 574. City liable for in- 
sufficient headroom between high- 
way and railroad bridge. Fergu- 
son v. Davis County, 57 Iowa, 601; 
Cloud County Com'rs v. Vickers, 62 
Kan. 25, 61 Pac. 391; Hartford 
ounty Com'rs v. Wise, 71 Md. 43, 
18 Atl. 31; Perkins v. Delaware 
Tp., 113 Mich. 377, 71 N. W. 643. 
No negligence in constructing a 
bridge on an incline of about one 
foot in twenty. 

339 Gregory v. Inhabitants of Ad- 
ams, 80 Mass. (14 Gray) 246; Coan 
v. Brownstown Tp., 126 Mich. 626, 
86 N. W. 130; Fisher v. Village of 
Cambridge, 57 Hun, 296, 10 N. Y. 
Supp. 623; Hardin County Com'rs 
V. Coffman, 60 Ohio St. 527, 54 N. 
E. 1054, 48 L. R. A. 455; County of 
Lehigh v. Hoffort, 116 Pa. 119, 9 
Atl. 177. But see Anderson v. City 
of St. Cloud, 79 Minn. 88, 81 N. W. 
746. See, also, Note to City of 
Wabash v. Carver, 13 I . R. A. 851. 



340 City of Wabash v. Carver 
(Ind.) 26 N. E. 42; Allen County 
Com'rs v. Creviston, 133 Ind. 39, 
32 N. E. 735. A traveler with an 
ordinary load has the right to rely 
on the apparent soundness and 
safety of a bridge which he is 
about to cross. Vermillion County 
Com'rs v. Chipps, 131 Ind. 56, 16 
L. R. A. 228; Yordy v. Marshall 
County, 86 Iowa, 340, 53 N. W. 298, 
following Id., 80 Iowa, 405, 45 N. 
W. 1042. It is for the jury to de- 
termine whether the use which the 
plaintiff was making of a bridge 
was unusual and extraordinary. 
Woodbury v. City of Owosso, 64 
Mich. 239, 31 N. W. 130; Moore v. 
Hazleton Tp., 118 Mich. 425, 78 
N. W. 977; Lee v. Delaware, L. & 
W. R. Co., 57 App. Div. 378, 68 N. 
Y. Supp. 407; McCormick v. Wash- 
ington Tp., 112 Pa. 185, 4 Atl. 164; 
Clulow v. McClelland, 151 Pa. 583, 
25 Atl. 147, 17 L. R. A. 650; Coulter 
v. Pine Tp., 164 Pa. 543, 30 Atl. 490. 

8 Bonebrake v. Huntington 
County Com'rs, 141 Ind. 62, 40 N. 
E. 141. Where the use of traction 
engines was common in the neigh- 
borhood, their use of a bridge must 
be anticipated in its construction. 



1028 



LIABILITY FOR NEGLIGENCE. 



2323 



of the bridge or similar structure. It is necessary to provide rail- 
ings and guards for all those portions qf the bridge, which in- 
clude, as above noted, the approaches, where their absence would 
constitute a dangerous defect. 342 Ordinarily the width of the 
bridge should be sufficient to accommodate the passing of teams. 343 
A defective plan or negligent construction may not only result in 
an injury to a traveler but also to private property or rights in 
other respects through the diversion of water or the overflow of 
land. 344 



1028. Defects in condition. 

The duty to exercise reasonable care applies not only to the 
construction of the bridge or similar structure but its condition or 
maintenance after its erection. Common defective conditions are 



342 Bronson v. Town of South- 
bury, 37 Conn. 199; City Council 
of Augusta v. Hudson, 88 Ga. 599, 
15 S. E. 678; Sullivan County 
Com'rs v. Sisson, 2 Ind. App. 311, 
28 N. E. 374; Parks County Com'rs 
v. Sappenfleld, 6 Ind. App. 577, 33 
N. E. 1012; Shelby County Com'rs 
v. Deprez, 87 Ind. App. 509; Miller 
v. Boone County, 95 Iowa, 5, 63 N. 
W. 352; Gould v. Schermer, 101 
Iowa, 582, 70 N. W. 697; Jessup v. 
Osceola County, 92 Iowa, 178; Faulk 
v. Iowa County, 103 Iowa, 442, 72 
N. W. 757; City of Topeka v. Hemp- 
stead, 58 Kan. 328, 49 Pac. 87; 
Shaw v. Saline Tp., 113 Mich. 342, 
71 N. W. 642; Perkins v. Delaware 
Tp., 113 Mich. 377, 71 N. W. 643; 
Titus v. Town of New Scotland, 
11 App. Div. 266, 42 N. Y. Supp. 
152. Question for jury. Pelkey v. 
Town of Saranac, 67 App. Div. 337, 
73 N. Y. Supp. 493; Finnegan v. 
Coster Tp., 163 Pa. 135, 29 Atl. 780. 
The court in this case also charged 
that the defendant was not bound 
to put up guards merely to prevent 
travelers straying out of the path, 
which was not held error. 



Yoders v. Amwell Tp., 172 Pa. 
447, 33 Atl. 1017; Bitting v. Maxa- 
tawny Tp., 177 Pa. 213, 35 Atl. 715; 
Eads v. City of Marshall (Tex. Civ. 
App.) 29 S. W. 170; Lazelle v. 
Town of Newfame, 69 Vt. 306, 37 
Atl. 1045; Teater v. City of Seattle, 
10 Wash. 327, 38 Pac. 1006. Non- 
suit properly granted where team 
became unmanageable and ran 
away. Rorhbough v. Barber Coun- 
ty Ct, 39 W. Va. 472, 20 S. E. 565; 
Schillinger v. Town of Verona, 96 
Wis. 456, 71 N. W. 888. No lia- 
bility where team became unman- 
ageable. But see Auberle v. City 
of McKeesport, 179 Pa. 321, 36 Atl. 
212. 

343 Quinton v. Burton, 61 Iowa, 
471, 16 N. W. 569. 

344 Tyler v. Tehama County, 109 
Cal. 618, 42 Pac. 240; Krug v. St. 
Mary's Borough, 152 Pa. 30, 25 Atl. 
161; Id., 152 Pa. 37, 25 Atl. 162; 
But see Crowell v. Sonoma County, 
25 Cal. 313; Jernee v. Monmouth 
County Freeholders, 52 N. J. Law, 
553, 21 Atl. 295, 11 L. R. A. 416; 
Shieb v. Collier Tp. (Pa.) 11 Atl. 
366. 



2324 



LIABILITY FOR NEGLIGENCE. 



1029 



obstructions on 34B or holes in the roadway, 348 broken, loose or de- 
fective planks or other- material used in its repair or construc- 
tion, 347 inequalities in its surface, defective railings, 348 or a general 
decayed, unrepaired and defective condition. 349 

1029. Duty to inspect. 

The duty to inspect is not an absolute one for this would make 
the corporation an insurer of the safety of a person, but is of the 
same character as the duty to construct and maintain, namely, to 
exercise reasonable care and diligence in the inspection, 350 having 



345 Cooley v. Trustees New York 
& Brooklyn Bridge, 46 App. Div. 
243, 61 N. Y. Supp. 1. 

346 Bradford v. City of Anniston, 
92 Ala. 349, 8 So. 683; Lee County 
v. Yarbrough, 85 Ala. 590, 5 So. 
341; City of Jacksonville v. Drew, 
19 Fla. 106; City of Atlanta v. 
Champe, 66 Ga. 659; City of At- 
lanta v. Buchanan, 76 Ga. 585; City 
of Griffin v. Johnson, 84 Ga. 279, 10 
S. E. 719; Page v. Town of Bucks- 
port, 64 Me. 51; Lyman v. Hamp- 
shire, 140 Mass. 311; Weet v. Vil- 
lage of Brockport, 16 N. Y. 161, 
note; City of Sherman v. Nairey, 
77 Tex. 291; Strong v. City of 
Stevens Point, 62 Wis. 255. 

347 City of Brunswick v. Braxton, 
70 Ga. 193; Page v. Town of Bucks- 
port, 64 Me. 51; City of Marshall v. 
McAllister, 22 Tex. Civ. App. 214, 
54 S. W. 1068; Koenig v. Town of 
Arcadia, 75 Wis. 62. 

3*8 Town of Tolland v. Town of 
Willington, 26 Conn. 578; Ward v. 
Town of North Haven, 43 Conn. 
148; Town of Grayville v. Whita- 
ker, 85 111. 439; Albee v. Floyd Coun- 
ty, 46 Iowa, 177; City of Eudora v. 
Miller, 30 Kan. 494; Staples v. 
Town of Canton, 69 Mo. 592; Stick- 
ney v. City of Salem, 85 Mass. (3 



Allen) 374; Loewer v. City of Se- 
dalia, 77 Mo. 431; Walker v. Kaii- 
sas City, 99 Mo. 647; Woodman v. 
Town of Nottingham, 49 N. H. 387; 
Langlois v. City of Cohoes, 58 Hun, 
226, 11 N. Y. Supp. 908; Blakely 
v. Laurens County, 55 S. C. 4^2, :;:: 
S. E. 503; Rice v. Town of Mount 
Pelier, 19 Vt. 470. 

349 Allen County Com'rs v. Bacon, 
96 Ind. 31; Homan v. Franklin 
County, 98 Iowa, 692, 68 N. W. 559; 
City of Topeka v. Hempstead, 5 
Kan. 328; Whitman v. Inhabitants 
of Groveland, 131 Mass. 553; Sny- 
der v. City of Albion, 113 Mich. L'TH, 
71 N. W. 475. Evidence of general 
decayed condition of bridge admis- 
sible. Gibson v. City of Jackson 
(Miss.) 22 So. 891; Walker v. Kan- 
sas City, 99 Mo. 647. 

350 Morgan v. Freemont County, 
92 Iowa, 64, 61 N. W. 231; Murray 
v. Woodson County Com'rs, 58 Kan. 
1, 48 Pac. 554; McKellar v. Moni- 
tor Tp., 78 Mich. 485, 44 N. W. 412. 
Question for jury. Medina Tp. v. 
Perkins, 48 Mich. 67; Stebbins v. 
Keene Tp., 55 Mich. 552; Bettys v. 
Denver Tp., 115 Mich. 228, 73 N. Vi 
138; Childs v. Crawford County, 
176 Pa. 139, 34 Atl. 1020. 



<j 1U30, 1031 LIABILITY FOR NEGLIGENCE. 2325 

in view the material 351 of which the bridge is constructed, its loca- 
tion, the nature of the traffic passing over it, 352 or its age. 353 

1030. Warning to the public. 

It is also the duty, where one exists, of a public corporation, to 
exercise reasonable care in warning the public, by the erection of 
barriers, placing of lights or other means, of defects while they 
are being remedied or changes being made in the structure which 
causes a dangerous condition for travel or generally of any con- 
dition in respect to the bridge which it is unable immediately to 
remedy and of which the public should have notice. 354 Where the 
work is being done by an independent contractor, the rule may be 
otherwise. 353 

1031. Defenses. 

As said in previous sections, 358 the duty with its resultant lia- 
bility to construct and maintain bridges in a reasonably safe con- 
dition does not always exist. Where no such duty is charged 
either by statutory provision or common law, this circumstance is 
clearly a perfect defense in an action brought to recover for in- 
juries received because of a defective condition. To warrant a re- 
covery in all cases, the action must also be brought against that 

351 Howard County Com'rs v. are removed without a county's 

Legg, 110 Ind. 479, 11 N. E. 612; knowledge or consent, it will not 

Ferguson v. Davis County, 57 Iowa, be liable for injuries resulting from 

601; Huff v. Poweshiek County, 60 injuries from a defective bridge. 

Iowa, 529; Blank v. Lavonia Tp., Morris County Chosen Freeholders 

79 Mich. 1, 44 N. W. 157; Id., 95 v. Hough, 55 N. J. Law, 628, 28 Atl. 

Mich. 229, 54 N. W. 877; Rapho Tp. 86; Clapp v. Town of Ellington, 87 

v. Moore, 68 Pa. 404. Hun, 542, 34 N. Y. Supp. 283; Mul- 

332Q'Neil v. Deerfield Tp., 86 len v. Town of Rutland, 55 Vt. 77. 

Mich. 610, 49 N. W. 596. But where a baricade has been 

353 Allen County Com'rs v. Crev- rendered insufficient by accident or 

iston, 133 Ind. 39, 33 N. E. 735; malicious interference, there can 

Spaulding v. Town of Sherman, 75 be no liability. 

Wis. 77, 43 N. W. 558. sss Spicer v. Elkhart County 

ssiBoone County Com'rs v. Com'rs, 126 Ind. 369, 26 N. E. 58. 

Mutchler, 137 Ind. 140; Brown v. But see Park v. Adams County 

Jefferson County, 16 Iowa, 339; Com'rs, 3 Ind. App. 536, 30 N. E. 

Weirs v. Jones County, 80 Iowa, 147. 

351, 45 N. W. 883. Where barriers sse See 983 et seq. 




2326 



LIABILITY FOR NEGLIGENCE. 



1032 



corporation having control of the structure or a part of it and 
charged with the duty of maintaining it, 357 though there may be 
a joint liability. 358 In cases of divided authority, the provisions of 
specific statutes usually control. 359 Another defense sometimes in- 
terposed is that of want of funds. Public corporations are re- 
garded as public agents not organized for their own pecuniary 
benefit or profit but for the advantage of the public. They inv 
strictly limited by law in the raising of revenues and in their ex- 
penditures. Where, by cause of such restrictions they are unable 
to properly repair or construct highways or any parts of them, 
clearly, no liability can follow. The lack of means lawfully at 
their disposal necessarily defeats a recovery, 300 while the pos- 
session of funds or the availability of a source of revenue for this 
purpose creates, ordinarily, a liability. 361 

1032. Injuries through operation. 

In the construction of a draw bridge or movable structure, in- 
juries may be received through its negligent operation. 302 The 



SOT Crowell v. Sonoma County, 25 
Cal. 313; Daniels v. Intendent & 
Wardens of Athens, 55 Ga. 609; 
Village of Marseilles v. Rowland, 
124 111. 547, 16 N. E. 883; Village of 
Marseilles v. Kiner, 34 111. App. 
355; State v. Inhabitants of Madi- 
son, 59 Me. 538; Quinlan v. Village 
of Manistique, 85 Mich. 22, 48 N. 
W. 172; Clapper v. Town of Wat- 
erford, 62 Hun, 170, 16 N. Y. Supp. 
640; Sheridan v. Palmyra Tp., 180 
Pa. 439, 36 Atl. 868. 

sss Town of Tolland v. Town of 
Willington, 26 Conn. 578; Shaw v. 
Town of Potsdam, 11 App. Div. 508, 
42 N. Y. Supp. 779; Armstrong 
County v. Clarion County, 66 Pa. 
218. 

359 Perkins v. Inhabitants of Ox- 
ford, 66 Me. 545; Clapp v. Town of 
Ellington, 87 Hun, 542, 34 N. Y. 
Supp. 283. 

sec Covington County v. Kinney, 
45 Ala. 176; People v. Adsit, 2 Hill 



(N. Y.) 619; McMahon v. Town of 
Salem, 25 App. Div. 1, 49 N. Y. 
Supp. 310; Bullock v. Town of Dur- 
ham, 64 Hun, 380, 19 N. Y. Supp. 
635; Orth v. City of Milwaukee, 5fr 
Wis. 336. But see Carney v. Vil- 
lage of Marseilles, 136 111. 401, 26 
N. E. 491, where it is held that if 
the bridge becomes defective 
through the lack of funds, the vil- 
lage should close it to travel as it 
is unsafe. See, also, Taylor v. 
Davis County, 40 Iowa, 295. 

361 City of Greensboro v. McGib- 
bony, 93 Ga. 672, 20 S. E. 37; Shar- 
tle v. City of Minneapolis, 17 Minn. 
308 (Gil. 284). See, also, cases 
cited in preceding note, and 1060, 
post. 

sea Scott v. City of Chicago, 1 
Biss. 510, Fed. Gas. No. 12,526; 
City of Boston v. Crowley, 38 Fed. 
202; Greenwood v. Town of West- 
port, 53 Fed. 824, Id., 62 Conn. 575; 
Van Etten v. Town of Westport, 60 



g 1 033 LIABILITY FOR NEGLIGENCE. 2327 

liability under these circumstances is not one which arises from a 
failure to perform the obligation of keeping this particular por- 
tion of the highway in a reasonably safe condition for travel. The 
duty to properly operate or keep in condition for safe operation is 
distinct from that of keeping the structure safe for travel; 3G3 but 
if there is a failure to maintain barriers or lights to prevent acci- 
dents when a draw is open, a liability may result for injuries to 
one using the street who, through the lack of such lights or bar- 
riers is injured while a draw bridge is open. 

1033. Liability as affected by notice. 

The liability of public corporations in the construction or main- 
tenance of public improvements, especially highways, may result 
from either an act of misfeasance or nonfeasance or, as the modern 
cases express it, from acts of commission or omission. Liability is 
based upon negligence in respect to the performance of a duty. 
Whatever duty may exist, it is not that of an insurer of a person 
or his property. It is simply that of exercising reasonable care 
and diligence in constructing and maintaining public property or 
public improvements in a reasonably safe condition for those en- 
titled to use them in a proper manner. 364 A knowledge of the de- 
fect whether in plan, construction or maintenance, must, there- 
fore, precede the existence of a duty and knowledge is obtained 
through notice of the defect. In acts of commission, which will be 
considered in a later section, 365 no notice is necessary because the 
doing of the act by law charges a public corporation with notice 

Fed. 579; Houston v. Police Jury of by collision with a draw bridge 

St. Martin, 3 La. Ann. 566; Ripley through the negligence of the 

v. Chosen Freeholders of Essex & bridge tender although Laws 1892, 

Hudson Counties, 40 N. J. Law, 45; c. 686, art. 1, 2 and 3, declare 

Weisenberg v. Town of Winne- counties to be municipal corpora- 

conne, 56 Wis. 667. But see Me- tions. 

Dougall v. City of Salem, 110 ses Daly v. City of New Haven, 

Mass. 21. 69 Conn. 644, 38 Atl. 397; Stephani 

French v. City of Boston, 129 v. City of Manitowoc, 89 Wis. 467, 

Mass. 592. No liability in the ab- 62 N. W. 176. 

sence of express statutory pro- se* Village of Warren v. Wright, 

vision. Godfrey v. Queen's County, 3 111. App. 602. See 982 et seq., 

89 Hun, 18, S4 N. Y. Supp. 1052. 1001 et seq., 1015 et seq., and 1026, 

No liability on the part of the ante, 

county for injuries to a tug caused 303 See 1040. 






2328 



LIABILITY FOR NEGLIGENCE. 



1034 



of the defect. In acts of omission or nonfeasance, a liability can 
only arise where there has been a failure to repair or remedy the 
defect within a reasonable time after knowledge of the defect. 
There can be, therefore, no recovery unless the corporation has 
had either actual or constructive notice of the defect and has 
failed within a reasonable time to remedy it. 366 

1034. Notice must be shown affirmatively by the plaintiff. 

The existence of a liability depending absolutely upon the pos- 
session of knowledge of the defect by the public corporation, it is, 
therefore, necessary for the plaintiff to show affirmatively, in all 
cases, notice either actual or constructive of the particular defect 
causing the injury complained of 3GT and the lapse of a reasonable 



see city of New York v. Sheffield, 
71 U. S. (4 Wall.) 189; City of Deli- 
ver v. Saulcey, 5 Colo. App. 420, 38 
Pac. 1098; Bill v. City of Norwich, 
39 Conn. 222; Cunningham v. City 
of Denver, 23 Colo. 18, 45 Pac. 356; 
Village of Mansfield v. Moore, 124 
111. 133, 16 N. E. 246; Ransom v. 
City of Belvidere, 87 111. App. 167; 
Town of Rosedale v. Ferguson, 3 
Ind. App. 596, 30 N. E. 156; City of 
Ft. Wayne v. De Witt, 47 Ind. 391; 
City of Evansville v. Senhenn, 151 
Ind. 42, 47 N. E. 634, 51 N. E. 88, 
41 L. R. A. 728; Doulon v. City of 
Clinton, 33 Iowa, 397; Robinson v. 
City of Cedar Rapids, 100 Iowa, 
662, 69 N. W. 1064; City of Atchl- 
son v. King, 9 Kan. 550; Jones v. 
Walnut Tp., 59 Kan. 774, 52 Pac. 
865; Hoey v. Inhabitants of Matick, 
15S Mass. 528, 27 N. E. 595; Parker 
v. City of Boston, 175 Mass. 501, 56 
N. E. 569; Burleson v. Village of 
Reading, 110 Mich. 512, 68 N. W. 
294; Handy v. Meridian Tp., 114 
Mich. 454, 72 N, W. 251; Aben v. 
Ecorse Tp., 113 Mich. 9; Schweick- 
hardt v. City of St. Louis, 2 Mo. 
App. 571; Young v. Webb City, 
150 Mo. 333, 51 S. W. 709; Bonine 



v. City of Richmond, 75 Mo. 437; 
Buckley v. Kansas City, 156 Mo. 16, 
56 S. W. 319; City of York v. Spell- 
man, 19 Neb. 357; Griffin v. City of 
New York, 9 N. Y. (5 Seld.) 456; 
Requa v. City of Rochester, 45 N. 
Y. 129; Jones v. City of Greens- 
boro, 124 N. C. 310, 32 S. E. 675; 
Vandyke v. City of Cincinnati, 1 
Disn. (Ohio) 532; City of Circle- 
ville v. Sohn, 59 Ohio St. 285, 52 
N. E. 788; Mack v. City of Salem, 
6 Or. 275; Ford v. Umatilla Co., 15 
Or. 313, 16 Pac. 33; City of Phila- 
delphia v. Smith (Pa.) 16 Atl. 493; 
Town of Franklin v. House, 104 
Tenn. 1, 55 S. W. 153; Ward v. 
Town of Jefferson, 24 Wis. 342. But 
in West Virginia it is held that 
where the duty to repair highways 
is imposed, a liability will arise 
from the existence of defects irre- 
spective of the question of notice. 
See the following cases: Evans 
v. City of Huntington, 37 W. Va. 
601, 16 S. E. 801; Arthur v. City of 
Charleston, 51 W. Va. 132, 41 S. E. 
171. 

67 City of Boulder v. Weger, 17 
Colo. App. 69, 66 Pac. 1070; City 
of Jackson v. Boone, 93 Ga. 662, 20 



1035 



LIABILITY FOR NEGLIGENCE. 



time thereafter within which it might have been remedied in the 
exercise of ordinary care and diligence as depending upon the cir- 
cumstances of that particular case. 368 It is also necessary for the 
plaintiff in actions of this character, to plead the fact of notice, for 
without notice, as already stated, in acts of omission, there can be 
no liability. 369 The burden is, therefore, upon the plaintiff to both 
allege and prove notice or a reasonable knowledge as a condition 
precedent to the liability of a public corporation in acts of omis- 
sion. 370 The burden, however, is on the defendant to plead and 
prove that it did not have a reasonable time in which to make the 
repairs before the injury was received. 371 

1035. To whom given. 

The giving of actual notice or the existence of constructive no- 
tice does not, in all cases, create a liability. Not only must the 



S. E. 46; City of Joliet v. Meaghan, 
22 111. App. 255; City of Decatur v. 
Fisher, 53 111. 407; City of Pleas- 
anton v. Rhine, 8 Kan. App. 452, 
54 Pac. 512; Whitney v. City of 
Lowell, 151 Mass. 212, 24 N. E. 47; 
Jones v. City of Greensboro, 124 
N. C. 310, 32 S. E. 675; Otto Tp. v. 
Wolf, 106 Pa. 608; Loberg v. Town 
of Amherst, 87 Wis. 634, 58 N. W. 
1048; Bailey v. Town of Spring 
Lake, 61 Wis. 227. 

368 Lamb v. City of Cedar Rapids, 
108 Iowa, 629, 79 N. W. 366; Rich- 
ardson v. City of Marceline, 73 
Mo. App. 360; Taylor v. Village of 
Mt. Vernon, 58 Hun, 384, 12 N. Y. 
Supp. 25; Rogers v. City of Will- 
iamsport, 199 Pa. 450, 49 Atl. 293; 
Town of Franklin v. House, 104 
Tenn. 1, 55 S. W. 153; Morrison v. 
City of Madison, 96 Wis. 452. But 
see City of Covington v. Diehl, 22 
Ky. L. R. 955, 59 S. W. 492. 

sea Serrot v. Omaha City, 1 Dill. 
312, Fed. Gas. No. 12,673. But if 
the facts alleged show prima facie 
the liability, it is not necessary to 
specifically allege that the city had 
notice of the defect. Lord v. City 



of Mobile, 113 Ala. 360, 21 So. 366. 
Sufficiency of averment. City of 
La Salle v. Porterfield, 138 111. 114, 
27 N. E. 93,7; City of Nokomis v. 
Salter, 61 111. App. 150; Posey 
County Com'rs v. Stock, 11 Ind. 
App. 167, 36 N. E. 928; City of 
Madison v. Baker, 103 Ind. 41; 
Junction City v. Blades. 1 Kan. 
App. 85, 41 Pac. 677; Lewis v. City 
of Eskridge, 52 Kan. 282, 34 Pac. 
892; Union St. R. Co. v. Stone, 54 
Kan. 83, 37 Pac. 112; Hutchings v. 
Inhabitants of Sullivan, 90 Me. 131; 
Germaine v. City of Muskegan, 105 
Mich. 213, 63 N. W. 78; Rusher v. 
City of Aurora, 71 Mo. App. 418; 
Vogelgesang v. City of St. Louis, 139 
Mo. 127; Kusterer v. City of Beaver 
Dam, 52 Wis. 146. But see Carroll 
v. Allen, 20 R. I. 144, 37 Atl. 704. 

370 City of Evansville v. Frazier, 
24 Ind. App. 628, 56 N. E. 729; 
City of Indianapolis v. Mitchell, 27 
Ind. App. 589, 61 N. E. 947; City of 
Indianapolis v. Tansell, 157 Ind. 
463, 62 N. E. 35; Noble v. City of 
Richmond, 31 Grat. (Va.) 271. 

3Ti City of Covington v. Diehl, 22 
Ky. L. R. 955, 59 S. W. 492. 




2 '3 30 



LIABILITY FOR NEGLIGENCE. 



1035 



corporation have had notice of the defect for a reasonable