Page:Harvard Law Review Volume 4.djvu/275

259 POLES AND WIRES FOR ELECTRIC RAILWAY, 259 petition alleging that the running of the cars made a great- deal of noise and danger, that the electric current was dangerous and not under control, and that the whole system was a public nuisance and should be abated. The court held that there was a question on the evidence whether the noise was greater than that of horse cars ; but that it was different and people were not accustomed to it, and that as a mode of using the streets it was subject to regula- tion by the Common Council ; that the danger from speed was also a matter for the Council to regulate, and, as to the electricity itself, the weight of evidence was that the current used was not very dangerous. The injunction was refused. The first decision by the Supreme Court of a State seems to be that in Taggart v. The Newport St. R'y Co., already referred to.i This was decided January 25, 1890, and the opinion was read by Chief Justice Durfee. A bill was filed by owners of abutting land to restrain a street-railway company from erecting poles and wires in front of their houses for the purpose of carrying an electric cur- rent to propel the street cars. The poles were to be placed one hundred and twenty feet apart, and along the margin of the side- walks. The act of incorporation of the company provided that the road might be operated " with steam, horse, or other power, as the Councils of the city might from time to time direct." The per- mission of the Council to use the overhead electric system had been given by ordinance. The court held that the right to use electricity might be inferred from the words of the charter, and that this was probably meant by the words " other power," in an act passed in the year 1885 ; that the poles did not encumber the streets, within the meaning of a clause in the charter forbidding the encumbrance of any portion of the street not occupied by the tracks ; and, lastly, that street railways operated by electricity by means of poles and wires do not constitute an additional servi- tude upon the land. The court said it was well settled that an ordinary steam railroad does impose a new servitude, and that a horse railroad does not; that, although the distinction is often stated as a distinction between steam and horse railroads, it properly rests, not on any difference in motive-power, but on the different effects produced by them respectively on the highways and streets which they occupy. It is not the motor, but the kind of occupation, whether practically exclusive or not, which is the 1 19 Atl. Rep. 326.