Page:Harvard Law Review Volume 4.djvu/264

248 248 HARVARD LAW REVIEW. railroads there is some difference of opinion. Judge Dillon says (sects. 717 and 725) that the power must come from the Legis- lature, but that the ordinary powers are often ample enough to authorize cities to allow the streets to be used for local travel by means of such railroads, but they cannot confer corporate fran- chises nor authorize taking of tolls. It was decided in New York, in 1856, that an exclusive right could not be thus granted; but on the question whether the municipahty might, by a mere license, revocable at pleasure, authorize persons to build such a railroad the judges were divided.^ The New Jersey Supreme Court said, in 1872, that the power had never been exercised in that State under a mere grant of power to regulate streets, and that the attempt to assert it would doubtless provoke the most determined resistance.^ It is certainly true that the right to operate a horse railway is a privilege giving the cars the preference in the right of way over other vehicles, so that a line of omnibuses, for example, will not be allowed to run regularly upon the tracks to the injury of the busi- ness ; ^ and although it is well settled that horse railroads are a legitimate use of the streets for public travel, it is usually con- sidered necessary to have special legislative authority to operate a line with all the privileges which are generally required. Whether an electric railway stands on the same footing with a horse railway, or is rather to be classed with a steam railway, depends on the question whether it is a new use of the street for a different purpose, and imposes a new burden on the land, and these questions will be discussed with reference to the right of the adjoin- ing owner to compensation ; but before coming to that it may be said that whether or not the municipality has a right to authorize a change of motive-power, it is certain that the Legislature has such right, and also that if the electric railway is, in fact, a street railway, the Legislature may confer power to use electricity under a general grant of power to operate and maintain a street 1 Davis V. New York, 14 N. Y. 506. 2 State, Montgomery, pros., v. Trenton, 36 N. J. L. 79-83. See also Atty. Gen. v. Metrop. ll.R. Co., 125 Mass. 515; Stanley z/. Davenport, 54 Iowa, 463; Hinchman z'. Paterson Horse R.R. Co., 17 N. J. Eq. 75 ; Jersey City & Bergen R. Co. v, Jersey City & Hoboken Horse R.R. Co., 20 N. J. Eq.6i ; Sixth Ave. R.R. Co. v. Kerr, 45 Barb. 138; Galbreath v. Armour, 4 Bell, App. Cas. 374, Boston z^. Richardson, 13 Allen, 146; Sears v. Marshalltown St. R'y Co., 65 Iowa, 742 ; Redfield on Railways, 3d ed., p. 317. 8 Camden Horse R.R. Co. v. Citizens' Coach Co., 31 N. J. Eq. 525.