If the plaintiffs in this action were the owners of the fee in the land, a different question would be presented. Then the inquiry would be whether the legislature had the constitutional power to impose on a land-holder the additional burden of the defendants' street railroad without their consent, in the exercise of the right of eminent domain. This question has not been decided in this state, and is not free from difficulty (Williams v. *Page 36 Railroad, 16 N.Y. 97, People v. Kerr, 27 N.Y. 188); but the parties here are the City of Concord and the Concord Horse Railroad, each having its rights and powers given, and its duties and obligations fixed, by the legislature which gave the plaintiffs a corporate existence, and imposed upon it the duty of laying out and maintaining streets and highways sufficient for the public accommodation. The plaintiffs held these easements as trustees for the public, subject to the control of the legislature; but it had no fee or title in the land in this relation, as a private corporation, aside from their trusteeship for the public. As to the plaintiffs, the legislature could create an additional facility to expedite the public travel in the plaintiffs' highways to be operated in common or jointly with those then in use, and they could make no legal objection, because they were subject to the action of the legislature in this respect. Wooster v. Plymouth, 62 N.H. 193, 206.
The inquiries, then, are as to the meaning of the defendants' charter, how it modified or changed the plaintiffs' control of the streets, and whether the defendants were doing what they were not authorized to do when the temporary injunction was issued.
The legislature made the defendants a corporation, with power to construct, maintain, and use a railroad, with a convenient single or double track, from any point on Main street in the city of Concord, over, along, and upon such of its streets as might be necessary for the public accommodation, to West Concord, with branches and side-tracks to other parts of the city. This grant to the defendants carried with it by implication the right to have, as a part of their railroad, such turn-outs as were necessary, though not specially named in the charter. Section 10, however, of the charter provides that the railroad shall be laid out by the mayor and aldermen of the city of Concord in like manner as highways are laid out, and that they shall give notice to all the landholders abutting on the streets or highways through which the railroad shall pass of the time and place of hearing, as to such laying out, by publication in such of the newspapers in Concord as they may direct, fifteen days before the hearing, and they shall determine the distance the track shall be laid from the sidewalks. Before the charter the city controlled its streets and highways, and no party had the right to construct a special track on which to carry passengers for private gain to the exclusion of the remainder of the travelling public. The entire worked part of its streets was open alike to all. Now the defendants are given this privilege. It however appears in other provisions of the charter that the use of the land on which the defendants' rails may be laid is not exclusive, but may be used by the travelling public when not in the actual use of the defendants, and that the mayor and aldermen have the right to direct the motive power that shall operate the railroad, and to make all such regulations as to the rate of speed and the mode of using it as the public safety and convenience *Page 37 may require. Laws of 1878, c. 118, ss. 4, 5, 6, 10, 11. This proves not only a special legislative intention to preserve to the city the right to lay out, the right to authorize the operating power, to regulate the rate of speed, the mode of using, the grade at which it is to be constructed, and the right to take up the streets through which the railroad may pass, but a general legislative purpose to constitute the mayor and aldermen, as between the railroad and the general public, or abutting owners, the tribunal to decide and direct in these matters whether they arise from express grant or legal implication. The word railroad, as used in section 2, means the railroad described and implied in section 1 in all its parts, and no exception is made in section 2 of the manner of laying out any part of the railroad described or implied in section 1, and a fair construction of the charter requires the mayor and aldermen to lay out the necessary turnouts.
The turn-out in question, on the facts in the case, may be one that the law would now imply the right to have laid out by the mayor and aldermen; but it has not been done. This is conceded, unless the mayor and aldermen laid it when the main track was laid in August, 1880. What they did then was clearly not a laying out according to the charter, nor was it then understood to be a laying out. It was not then known that a turn-out would be necessary at this point; and the most that can be claimed was an attempt by the mayor and aldermen to delegate the right to locate and construct turn-outs as they might be found necessary, which they could not do. The injunction is made perpetual.
BLODGETT and CARPENTER, JJ., did not sit: the others concurred.
Case discharged.