(dissenting.) I concur in the opinion of the court in this case, in so far as it gives damages to the plaintiff in the amount "stated, because it appears from the evidence that the railway company, without proper remonstrance or affirmative action to prevent the use of the short cut or by-path by pedestrians, upon which the plaintiff was passing when injured, may have, impliedly at least, invited persons to make use of the path.
But I do not concur in the court’s opinion in so far as it defines the right and tenure by which the railway company occupied the street as a right of way.
The right of a railway company to what is generally termed a right of way, in the rural or suburban districts, is exclusive, although it may be but an easement, for there'are easements and easements, almost as numerous and varied in- their characteristics and effects, as there are instances in which they exist. Jackson v. R. & B. Railroad Co., 25 Vt. 159; Hurd v. R. & B. Ry. Co., 25 Vt. 116; Conn. & Pass. River Ry. Co. v. Holton, 32 Vt. 43; Redfield on Railways, 127, note 15, page 11; Elliott on Railways, vol. 3, also section 1152.
The subject of railroad rights of way over and along the streets of towns and cities has been for a long time a fruitful theme of discussion by courts and jurists. Many of the cases are cases of grants to street railways, which in the very nature of things have little or no application to cases of railways over which steam engines run, or in other words ordinary railroads. A street railway is never exclusive in its occupancy of a street. The nature of its business, and the patronage it seeks, and the manner of operating its cars, all make it more profitable for itself and more convenient for the public that its occupancy of the street be not exclusive, but rather joint with ordinary travel and traffic.
It may be admitted that a municipality has no authority to grant to a railroad a right of way over its streets at all, without authority from the legislature. The authorities go to the extent of saying that even the legislature cannot confer this authority upon cities and towns to grant rights of way over any of their streets, where the abutting owners own the deed to the center of the streets, or, more accurately speaking, where the fee in the land occupied by the streets is owned by private individuals, who have given the easement for the purposes of streets only.
Attempts have been made to adopt the same rule where there is no private interest in or ownership of a street, but where it is the property of the public purely; but these attempts are scarcely more than expression of the opinion of authors who think such ought to be the rule. The rule now is that the legislature can authorize a city or town to grant a right of way to a railroad company over any of its streets owned by the public, and whether this grant be exclusive of a similar grant to any other railroad seems to be a matter to be determined by the language of the grant.
Much of the discussion of this subject goes no further than to the inquiry whether or not the grant can be made lawful by an act of the legislature, without some provision therein which provides for the payment of compensation, as in condemnations under the law of the right of eminent domain. But all that only goes to show that the right of way may be claimed by the railroad companies as a matter of right, upon complying with the terms of the law,
I am of opinion that, in any case, it ought to be held as contrary to public policy to grant a joint use to railroad companies and the public generally over a street, especially where the grant to the railroad, as in the case at bar, is expressly of the whole street. But, be this as it may, I am of . the opinion that the right and tenure by which appellant company holds the street in Warren, seeing that the grant by the town has been ratified by the legislature, depends upon whether the public or abutting owners owned the fee in.the ground taken up by the streets, and by the construction to be placed upon the act and the grant, whether they be in full or restricted by express words; and, as we have no evidence of the ownership of the street, the question cannot be decided, as I think, on this record.