Page:Harvard Law Review Volume 4.djvu/271

255 POLES AND WIRES FOR ELECTRIC RAILWAY. 255 it so might be granted, compensation must be given to the land- owner. Horse railroads having been held to be within the uses of a street, and steam railroads not, the question next arose whether the use of steam motors on street railroads imposed a new burden, and this was variously decided according to the views of the courts upon the effect of such a change upon the use of the streets. In Iowa, for example,^ it was held that steam motors authorized by a city to be used on the streets were a nuisance, and that the city was liable to a traveller for damages. In Minnesota, on the other hand, it was held ^ that the running of cars drawn by steam motors enclosed in cabs was a proper use of the streets in aid of public travel, and did not impose a new servitude. The same thing was held in a case in Maine,^ when the court said : '* The motor is not the criterion ; it is rather the use of the street. A change of motor is not a change of use." In Williams 2/. City Electric Railway Co., in the U. S. Circuit Court for the District of Arkansas,* it was held that a railroad operated in a city by steam motors was a street railway, within the meaning of a statute giving cities power to provide for the opera- tion of street railways, and that it did not impose a new servitude. The court said : " The distinction attempted to be drawn between animal and mechanical power as applied to street railroads is not sound. The motor is not the criterion. It is the use of the street and the mode of that use ; " and that if a raihoad, whether operated by horse power or mechanical power, is in fact so operated as to be a nuisance, the land-owner has his remedy. In Tennessee it has recently been held that the use of a steam motor drawing cars and running along a city street and five miles out into the country was, in fact, a new servitude. The court said that it was a question of degree, and depended on the manner in which the streets were used ; but that in this case there was noise and smoke, the trains were longer and heavier, and the speed was greater than in the case of horse cars, and the use was practically inconsistent with other uses of the highway.^ 1 Stanley v. Davenport, 54 Iowa, 463. 2 Newell V. Minneapolis, Lyndale, & M. R'y Co., 35 Minn. 112, 59 Am. Rep. 303 8 Briggs V. Lewiston & A. Horse R.R. Co., 79 Me. 363 (1887). 6 East End R'y Co. v. Doyle, 13^8. W. Rep. 936.
 * 41 Fed. Rep. 556, March 26, 1890.