The defendants, being a legally organized railroad corporation, under the general railroad act of 1850, were clothed with legislative sanction and authority to construct the railroad in question, after having procured the assent of the common council of the city of Rochester to do so, unless it shall be held that the private rights of the owners of lots adjacent to such streets are invaded by such use of the street.
The plaintiff claims that the construction of such a street railway is the imposition of a new use, and an additional burden upon the land embraced in the street, and so amounts to the taking of the property of the owner of the fee without compensation, and consequently an invasion of his constitutional rights. This is the important question presented by this appeal. The common council of the city are invested with full control and complete authority over the streets of the city, and so far as any legal right existed to make such a use of the streets, they have granted it to the defendants with the most careful and prudential regulations calculated to preserve the full rights of the public, in the use of the streets. (Laws 1861, p. 317, § 55, chap. 320, § 161.) There is no dispute in regard to any fact in the case, and the judge at Special Term decided this question of law against the defendant, and granted a perpetual injunction restraining the defendants from laying their railroad in this street.
The court below seem to have regarded themselves bound to depart from the decision of the same court in General Term, upon the same question, in the first and second judicial districts, upon the construction which they put upon the *Page 414 decisions of this court, in the cases of Davis v. The Mayor,etc. (14 N.Y. 516); Williams v. The N.Y. Central R.R. Co. (16 id. 97); Carpenter v. Oswego and Syracuse R.R. Co. (24 id. 655); Mahon v. The N.Y. Central R.R. Co. (id. 638), andWager v. The Troy Union R.R. Co. (25 id. 526). These cases decide that the construction of a common railway to be run with steam-engines in a public street, without the consent of the owners of the fee of the street, is the imposition of a new use, and an additional burden upon the land embraced in the street, and is the taking of the property of the owner without compensation, and consequently is prohibited by the Constitution. There is certainly a broad distinction between these cases and that of a street railroad, with cars to be drawn by horses, at a speed of not more than six miles per hour. In the leading case ofWilliams v. The New York Central R.R. Co., the street was literally destroyed for any of the original common use for which the land was originally taken. With forty engines, and the trains which they draw, passing over the street daily, any use for carriages or common vehicles must be so very extremely dangerous, that the use of the street, for any such purpose, would necessarily be very limited, if not abandoned; and, besides, the railroad corporation, in such a case, takes the exclusive use of the street, and, in all these cases, actual and exclusive possession of the locus of the street is taken by the railroad corporations. In the case at bar, no such thing occurs. The construction of this railroad in the streets of the city of Rochester, and the operating of it, when completed, does not involve the taking of any title to the land. It is true, the iron rails are to be laid down in the street, but they are required to conform to the grade of the street, and as the same may be changed from time to time by the city authorities, and the rails to be six inches wide, and laid even with the surface of the street. The track of the road does not become the property of the railroad. All that the railroad corporation gets, is a license to construct and operate the railroad, but to be enjoyed, subject to the rules and regulations of the common council; and these regulations, in *Page 415 the case at bar, are well calculated to secure all the original public use of the street as an easement for public travel, and the common use for carriages and other vehicles, and no one is prohibited from passing over and along the track with teams and vehicles, but, on the contrary, these common rights are but little interfered with; all that is granted to the defendants is the right to use, not to take and hold, without at all excluding other persons from their former use of the same. The use which is thus granted is nothing more than the privilege of passing over the streets in question with a species of conveyance somewhat different from that which the public generally use. The inconvenience to the public, in the common use of the street, must be small, and no individual can complain, that a public street is appropriated to a public use somewhat different, unless it is to be regarded a new use, and imposes an additional burden upon the land. This, in my judgment, is not a new use. When land is acquired to the public use of a street or highway, the public may lawfully claim the same for all the varying wants which the public may require, only so that such use is in subordination to its principal use as a street. The principal uses of a street are for the passage and repassage of the public, and this public right of passage is not limited to any particular mode of travel which may be in use at the time the land is taken, but to all such new methods as the progress of civilization and improvement may bring into use, only so that it remains a public street still, and devoted to the public use.
The construction and use of such a street railway, as is provided for in the case under consideration, is but a mode of exercising the public right of passage, and I perceive no objection to the public exercising this right by means of public agents, or through the medium of corporations, where they become public common carriers and do not further encroach upon the general, public use, than do those street railways constructed and run in conformity to the regulations prescribed in the case at bar. There is no new appropriation of the property of the plaintiff requiring compensation in damages. Nor is there a burden imposed upon *Page 416 his land, caused by a use not contemplated in its original appropriation.
This question has received great consideration in the Superior Court, and has invariably been decided in conformity with the views above expressed, until we came to the cases at bar. (32 Barb. 420; 35 id. 364; 37 id. 357; 32 id. 410; 10 id. 26; 35 id. 373.) These cases are well considered, and are referred to as affording satisfactory reasons for the judgments given. This question came before the Supreme Court of the State of Ohio, in the case of The Cincinnati Street Railway v. Cumminsville (14 Ohio 524), and the case was decided the same way, and to the same effect, as the decision of the Supreme Court of Connecticut in the case of Elliot v. Fair Haven R.R. Co. (32 Conn. 579), where the question is well considered by Judge ELLSWORTH, who delivered the opinion of the court in that case. Other cases might be referred to, sustaining the same views. The course of judicial decisions in other States is certainly in accordance with the views above expressed, upon the ground, substantially, that the public easement is not destroyed, but only used according to a new and improved mode. The precise question has never been decided in this court.
In the case of Davis v. The Mayor, etc., of N.Y. (14 N.Y. 530,531), Judge COMSTOCK expressed the opinion that such a use of the streets of a city was lawful, and that this highway and railroad track could co-exist and constitute one public easement. The very able opinion of Judge EMOTT, delivered in this court, in the case of The People et al. v. Kerr (27 N.Y. 188), fully sustains the views above expressed, and the opinion of Judge WRIGHT in that case certainly favors this view, as does the decision of the court, although this question cannot be said to be there decided. I will only say, without further discussion, that this conclusion, which I have attained, after a careful examination of the adjudged cases, and the best reflection which I have been able to bestow upon this matter, is, that this new use of the streets, for the carrying of passengers by horse railway, is consistent with the public use for which the lands of the streets were *Page 417 originally appropriated, and is not so far antagonistic to their common use as streets, as to deprive the adjacent owners of the fee of any property, or interest in the lands for which he can claim compensation. The great object of a highway is to furnish accommodations for the passage and transportation of travellers and freight; and these street railways and these street cars are only one of the legitimate means to accommodate the public travel, and is a lawful use of the street.
It follows that the judgment of the Supreme Court should be reversed, and the plaintiff's complaint dismissed.
WOODRUFF and DWIGHT, JJ., concurred in this opinion.
Judgment affirmed, with costs. *Page 418