Page:Harvard Law Review Volume 4.djvu/99

Rh been benefited as much as other streets by these roads? Can the roads claim that property has not been damaged by them, though it may sell for its old figure, when all the neighborhood east and west, north and south, has shown a much higher increase? Does not a restriction on the use of property necessarily entail some damage? Is it a fair criterion to say that a sale for $23,-000 in an inflated currency in 1873 is higher than a sale for $20,000 in currency on a gold basis in 1890? All these interesting questions I will only hint at as showing what a field of inquiry we have now touched. They are still unsettled questions which I do not feel justified in more than alluding to.

This very hasty glance at the elevated railroad litigation in New York will have served the writer's purpose, if it has helped in any way to show that, no matter how novel may be a legal problem, and no matter how great may be the interest involved, as long as the United States possess honest courts and a well-trained bar there will be found a way to meet all new problems and to reach satisfactory results; a way to promote public enterprise without injuring the individual citizen. This is the real benefit of the Story decision. This is the real lesson that it teaches. These are the two golden rules of jurisprudence it enunciated: First, "Sic utere tuo ut alienum non lædas;" and the second is like unto it, "Private property shall not be taken for public purposes without compensation."

Edward A. Hibbard

April, 1890.

TAXATION OF PIPES IN PUBLIC STREETS

N interesting question of law, and one upon which the courts are in hopeless disagreement, arises when a tax is levied upon iron pipes laid by private parties in the public streets by permission of the local authorities. Common examples of such pipes are gas and water mains laid by private corporations.

The fundamental inquiry is as to the nature of the interest of the corporation in the mains after they have been laid. Four theories have been held by the courts.