Page:Harvard Law Review Volume 4.djvu/265

249 POLES AND WIRES FOR ELECTRIC RAILWAY. 249 railway, provided only that the use of the new power does not so change the character of the railroad as to abuse the privilege of the use of the streets and create a public nuisance. This was held in a recent and well-considered case in New Jersey.^ The com- pany was organized under a general law for the formation of companies to operate street railways for the transportation of passengers ; no special motive-power was mentioned. Vice- Chancellor Van Fleet, referring to this fact, said : - — Hence under the general grant of power to maintain and operate a street railway, it would seem to be clear that a corporation organized under this statute takes, by necessary and unavoidable implication, a right to use any force in the propulsion of its cars that may be fit and appropriate to that end, which does not prevent that part of the public which desires to use the streets according to other customary methods from having the free and safe use thereof. And it was held that the company was entitled to use electricity conveyed by overhead wires. There was, in fact, another statute distinctly authorizing the use of electric motors, with the consent of the city, which had been given ; but the Vice-Chancellor said that even without this the general grant was sufficient, if it appeared that electricity could be used without preventing the free and safe use of the street by other means of transportation. (2.) Supposing a franchise to have been obtained from the proper authority for the use of electricity, and to place poles and wires in the streets to carry this current, the question remains, whether this is such a new use of the streets as to impose a new burden upon the lands and to involve the payment of compensa- tion to the abutting owners. Judge Dillon, in the last edition of his book on Municipal Cor- porations (2 Dillon, Mun. Corp., § 734 c, note), refers to a recent case in Rhode Island, decided while his book was in press, in which it was held that the erection of poles in the streets, with wires for the purpose of propelling street cars by electricity, did not en- title the owner to compensation.^ The company had authority from the Legislature to use steam, horse, or other power, as the City Council might from time to time direct; and the Council had given permission to use electricity, with poles and wires. On an applica- 1 Halsey v. Rapid Transit Ry. Co, Dec. 6, 1890, 20 Atl. Rep. 859. 2 Taggart v. Newport Street Railway Co., Jan. 25, 1890, 19 Atl. Rep. 326.