Page:Harvard Law Review Volume 4.djvu/274

258 258 HARVARD LAW REVIEW. the abutting owner is actually taken. Such seems to us to be the conclusion to be reached upon legal principle, and such is the conclusion of the judges in many of the cases which have recently been decided in regard to electric railways, and especially that of Vice-Chancellor Van Fleet in Halsey v. Rapid Transit R'y Co. above referred to. We shall now refer briefly to the recent cases. Many of them are decisions of local and inferior courts, but some of these bear evidences of careful examination of the principles and authorities, and they are all interesting as the beginnings of the application of the principles to new conditions. One of the earliest cases was Mount Adams and Eden Park Inclined Railway Co. v. Howard Winslow et al.} in the Circuit Court of Hamilton County, Ohio, in the year 1888. In that case it appeared that poles were placed along the margin of the sidewalk about one hundred feet apart, and wires were stretched across and along the street for the purpose of supplying electricity to street cars. The court held that the sidewalk was a part of the highway, and to be dealt with as such ; that the margins of side- walks have for centuries been appropriated for placing shade- trees, lamp-posts, hitching-posts, and similar structures, and that these new poles did not, in fact, obstruct the access to the plaintiff's land and imposed no new burden upon it; that the electric current used was not dangerous ; that the use of the street by the electric cars was substantially the same as that by horse cars, the mode of travel being the same, the only change being in the motive-power. The court refused to order the poles to be removed. This decision was quoted and approved by the Court of Common Pleas for Cuya- hoga County, Ohio, in Pelton v. East Cleveland R.R. Co., January, 1889.2 The court said that the question of speed and of danger to travellers on the street might safely be left to the municipal author- ities, and that although the poles added nothing to the beauty of the street, yet the burden or obstruction created was more fancied than real, and that it could not be said in seriousness that the poles and wires would, if properly placed, obstruct the light and air or in- terfere with the ingress and egress to and from the plaintiff's land. An injunction was refused. This case came before the Circuit Court of the same county on appeal, and upon a supplemental 1 3 Ohio Circt. Ct. Rep. 425. 2 22 Weekly Bulletin and Ohio Law Journal, 67.