Page:Harvard Law Review Volume 4.djvu/267

251 POLES AND WIRES FOR ELECTRIC RAILWAY. 251 wagons carrying the mails. It has been held in Massachusetts and Missouri that the telegraph is not a new burden upon the streets; ^ and in the numerous cases in which it is held otherwise it was so held upon the ground that the telegraph and telephone are not used to facilitate public travel, and that if they do transmit in- telligence, they do so by a method so different from the ordinary use of the streets as not to come within the public easement.'^ In Virginia the Court of Appeals has recently decided that the right acquired by the public in the condemnation of a highway is only the right of the public to pass along it, and that the untaken parts, being private property, cannot be occupied by telegraph poles without compensation.^ In New Jersey the decisions rest partly on a statute providing for compensation.^ On the whole it is safe to say that these decisions against the use of the streets for the telephone and tele- graph are not sufficient to determine the question of the use of the streets by the electric railway, and whether the distinction drawn in the Rhode Island case is sound or not, the question of the use of the electric railway must be decided by itself. The question is, whether the poles and wires and the street railway operated by electricity constitute a new burden upon land. It is a street railway operated by a new motive-power and with new appliances, but for the same purposes as a horse railway. It is important, therefore, to see whether a horse railway is con- sidered an additional burden, and, if not, whether the electric railway has the same characteristics as those which make the horse railway a proper use of the street, or is to be classed rather with the ordinary steam railroad which has been held to impose an additional servitude. There is a very general agreement of authorities, with some difference of opinion in New York, that the use of a street for a horse railroad is a legitimate use of it for public travel consistent with the purposes for which it was laid out, and does not impose a new burden upon the land. In New York a distinction is made 1 Pierce v. Drew, 136 Mass. 75. Julia Building Assoc, v. Bell Teleph. Co., 88 Mo., 258. 2 Dill Mun. Corp., § 698-698 a., note citing cases. Lewis Em. Dom., sees. 131, 226 and cases. Halsey v. Rapid Transit R'y Co., 20 Atl. Rep. 859-864 per Van Fleet, V. C. 3 Western Union Tel. Co. v. Williams, Mar. 27, 1890, 11 S. W. Rep. 106. 4 Broome v. N. Y. & N. J. Teleph. Co., 42 N. J. Eq. 141 ; Roake v. Am. Teleph. Ca 41 N. J. Eq. 3S