Page:Henry Osborn Taylor, A Treatise on the Law of Private Corporations (5th ed, 1905).djvu/167

 PART TI.] ACTS WITHIN THE CORPORATE POWERS. [§ 115a. in a city. 1 This seems correct, and on the principles stated by- Chief Justice Shaw : " Where under the authority of the legis- lature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full com- pensation for a perpetual easement in land has been paid to the owner therefor, and afterwards the land is appropriated to a public use of a like kind, as where a turnpike has by law been converted into a common highway, no new claim for compen- sation can be sustained by the owner of the land over which it passes." 2 § 175«. Obviously an ordinary steam railway is very dif- ferent from street cars. Such a steam railway placed in a city street without due authorization is a nuisance. 3 The track can- not be used by wagons, and driving by the side of it is danger- ous. Unquestionably such a railway obstructs the use of a street as a street. Many of the cases adjudicating the right of abutting owners to compensation for the use of a street by a steam railroad have turned on the ownership of the fee of the street. It has been held that an adjoining owner who owns i Taylor v. St. Ry. Co., 91 Me. 193; Canastota Knife Co. v. Newington Tramway Co., 69 Conn. 146; Pool v. Falls Road Ry. Co., 88M'd 533; La Crosse City Ry. Co. v. Higbie, 107 Wis. 389; contra, Pecku. Schenectady Ry. Co., 170 N. T. 298; an electric street railroad upon a country road is held to constitute an additional ser- vitude. Zehren v. Mil. E. & L. Co., 99 Wis. 83. Cf. Ehret v. Camden & Trenton Ry. Co., 60 X. J. Eq. 246. 2 Chase v. Sutton M'f'g Co., 4 Cush. (Mass.) 152, 157. But it accords with these principles, and has been held, that the owner is entitled to compen- sation when the horse railroad com- pany changes the grade of the street and obstructs its use. Cincinnati and S. C Ave. Ry. Co. v. Cummins- ville, 14 O. St. 523. The owner of the fee of a highway is entitled to compensation for laying gas pipes under a highway, and parallel with it. Sterling's Appeal, 111 Pa. St. 35. The use of a highway by a telegraph company as authorized by law, and subject to the supervision of the local municipal authorities, is a pub- lic use similar to that for which the highway was originally taken, or to which it was originally devoted, and the owner of the fee is entitled to no further compensation. Pierce v. Drew, 136 Mass. 75; two judges dis- senting. Contra, Eels v. Telegraph Co., 143 N. Y. 133; Board of Trade Telegraph Co. v. Barnett, 107 111. 507, in which last case it was held that trespass would lie at suit of the owner of the fee. The Illinois Con- stitution provides that " private property shall not be taken or dam- aged without just compensation." See, also, Postal Tel. Co. v. Eaton, 170 111. 513. 3 Burlington v. Penn. R. R. Co., 56 N. J. Eq. 259, but see, Fobes v. Rome, etc., R. R. Co., 121 N. Y. 505. 147