Page:Harvard Law Review Volume 4.djvu/273

257 POLES AND WIRES FOR ELECTRIC RAIL,. . 257 of the soil for poles reasonably necessary to supply the electricity is not a taking of land belonging to the abutting owner, and that it does not interfere with his rights in the street, unless it appears that it is such a perversion of the use of the street as to affect his beneficial use of it as a street in connection with his land, and that it does in fact affect his access to his premises, or obstruct the light or air. In the elevated railroad cases it was held that the erection of a heavy iron railway upon posts in the streets was not a taking of the land, but that it did in fact affect the use of his land in connection with the street, and was an interference with the right of access and of light and air, which entitled the adjacent owner to compensation.^ It becomes, therefore, a question of fact whether the electric railroad is a mode of using the street for the purposes for which it was designed, and whether the poles and wires really and substantially affect the use of the adjacent land and interfere with the right of access and light and air. It would seem to be very clear that the use of electricity instead of horses to propel street cars used for the same purposes as horse cars does not change the use of the streets. The cars are of the same kind ; they are used in the same way for taking people from door to door, and facilitating travel in and about the city. The use of the road corresponds exactly with the description of a horse railway in the New Jersey cases above cited, as distinguished from a steam railway, which occupies the streets for another purpose, to the exclusion of local travel. The question whether the poles and wires interfere with the use of the street as such in connection with the adjacent land is a question of fact to be determined in each case, but it cannot be said without proof that the poles and wires as ordinarily arranged would l;iave that effect. The most serious opposition is made to those placed in the middle of the street ; but however inconvenient these may be to the public, it is clear that they are less open to objection from the land-owner than those on the sidewalk, in which, by custom at least, the land-owner has more privileges, and on which he is allowed to place obstruc- tions, such as awning-posts and hitching-posts, for his own conven- ience. The land itself occupied by the electric poles in the middle of the street belongs to the public for the uses of the street, and if the pole is put there for such a use, nothing belonging to 1 Story V. N. Y. El. R.R. Co., 90 N. Y. 122 ; Lahr v. Metrop. El. R'y Co., 104 N. Y. 268 ; Pond V, Metrop. El. R'y Co., 112 N. Y. 186.