Had the land on which the defendants have undertaken to build their railway, never become a public street, the right of the petitioners to a pre-appraisement of damages would be undisputed, such a right being literally conferred by the general railroad law of this state.
But, as the locality is a highway, it is not admitted that the remaining estate of the owners of the soil can justly be said to be taken or appropriated, W'hen the land is permanently subjected to railway uses and to the control of a railway corporation.
We assume of course, that by the establishment of the highway, the estate of the proprietors of the land so appropriated was not extinguished. The fee was no less in them than before. The land is said to be taken ; but the taking of land for public uses is a term which has a qualified signification, and implies no more than that the property is to be permanently subject to the particular use for which the public require it. The discontinuance of the use, as is well understood, restores the whole estate disencumbered to its owner.
Hence, when land is condemned for a special purpose on the score of public utility, the sequestration is limited to that particular use. Land taken for a highway is not thereby convertible into a common. As the property is not taken, but the use only, the right of the public is limited to the use, the specific use, for which the proprietor has been divested of a complete dominion over his own estate.
These are propositions which are no longer open to discussion.
But it is contended that land once taken and still held for *256highway purposes, may be used for a railway without exceeding the limits of the easement already acquired by the public. If this is true, if the new use of the land is within the scope of the original sequestration or dedication, it would follow that the railway privileges are not an encroachment on the estate remaining in the owner of the soil, and that the new mode of enjoying the public easement will not enable him rightfully to assert a claim to damages therefor. On the contrary, if the true intent and efficacy of the original condemnation was not to subject the land to such a burden as will be imposed upon it when it is confiscated to the uses and control of a railroad corporation, it can not be denied that in the latter case the estate of the owner of the soil is injuriously affected by the supervening servitude; that his rights are abridged, and that, in a legal sense, his land is again taken for public uses. Thus it appears that the court have simply to decide, whether there is such an identy between a highway and a railway, that statutes conferring a right to establish the former, include an authority to construct the latter.
The term public highway, as employed in such of our statutes as convey the right of eminent domain, has certainly a limited import. Although, as suggested at the bar, a navigable river or a canal is, in some sense, a public highway, yet an easement assumed under the name of a highway would not enable the public to convert a street into a canal. The highway, in the true meaning of the word, would be destroyed. But as no such destruction of the highway is necessarily involved in the location of a railway track upon it, we are pressed to establish the legal proposition, that a highway, such as is referred to in these statutes, means, or at least comprehends, a railroad. Such a construction is possible only when it is made' to appear that there is a substantial, practical or technical identity between the uses of land for highway and for railway purposes
No one cah fail to see that the terms railway and highway are not convertible, or that the two uses practically considered, although analogous, are not identical. Land as *257ordinarily appropriated by a railroad company is inconvenient, and even impassable, to those who would use it as a common highway. Such a corporation does not hold itself bound to make or to keep its embankments and bridges in a condition which will facilitate the transitus of such vehicles as ply over an ordinary road. A practical dissimilarity obviously exists between a railway and a common highway, and is recognized as the basis of a legal distinction between them. It is so recognized on a large scale, when railway privileges are sought from legislative bodies and granted by them. If the terms highway and railway are synonymous, or if one of them includes'the other by legal implication, no act could be more superfluous than to require or to grant authority to construct railways over localities already occupied as highways.
If a legal identity does not subsist between a highway and a railway, it is illogical to argue, that, because a railway may be so constructed as not to interfere with the ordinary uses of a highway, and so as to be consistent with the highway right already existing, therefore such a new use is included within the old use. It might as well be urged, that if a common, or a canal, laid out over the route of a public road, could be so arranged as to leave an ample roadway for vehicles and passengers on foot, the land should be held to be originally condemned for a canal or common, as properly incidental to the highway use.
There is an important practical reason why courts should be slow to recognize a legal identity between the- two uses referred to. They are by no means the same thing to the proprietor whose land is taken : on the contrary, they suggest widely different standards of compensation. One can readily conceive of cases, where the value of real estate would be directly enhanced by the opening of a highway through it, while its confiscation for a railway at the same or a subsequent time, would be a gross injury to the estate, and a total subversion of the mode of enjoyment expected by the owner when he yielded his private rights to the public exigency.
*258But essential distinctions also exist between highway and railway powers as conferred by statute; distinctions which are founded in the very nature of the powers themselves. In the case of the highway, the statute provides that, after the observance of certain legal forms, the locality in question shall be forever subservient to the right of every individual in the community to pass over the thoroughfare so created at all times. This right involves the important implication that he shall so use the privilege as to leave the privilege of all others as unobstructed as his own, and that he is therefore to use the road in. the manner in which such roads are ordinarily used, with such vehicles as will not obstruct, or require the destruction of, the ordinary modes of travel thereon. He is not authorized to lay down a railway track, and run his own locomotive and car upon it. No one ever thought of regarding highway acts as conferring railway privileges, involving a right in every individual not only to break up ordinary travel, but also to exact tolls from the public for the privilege of using the peculiar conveyances adapted to a railroad. If a right of this description is not conferred when a highway is authorized by law, it is idle to pretend that any proprietor is divested of such a right. It would seem that, under such circumstances, the true construction of highway laws could hardly be debateable, and that the absence of legal identity between the two uses, of which we speak, was patent and entire.
Again, no argument or illustration can strengthen the self-evident proposition that when a railway is authorized over a public highway, a right is created against the proprietor of the fee in favor of a person, an artificial person, to whom he before bore no legal relation whatever. It is understood that when such an easement is sought or bestowed, a new and independent right will accrue to the railroad corporation as against the owner of the soil, and that, without any reference, to the existence of the highway, his land will forever stand charged with the accruing servitude. Accordingly, if such a highway were to be discontinued according to the legal forms prescribed for that purpose, the railroad corporation *259woujd still insist upon the express and independent grant of an easement to itself, enabling it to maintain its own road on the site of the abandoned highway.
We are of opinion therefore, as was distinctly intimated by this court in a former case, (see opinion of Hinman, J., in Nicholson v. N. Y. & N. H. R. R. Co., 22 Conn., 85,) that to subject the owner of the soil of a highway to a further appropriation of his land to railway uses, is the imposition of a new servitude upon his estate, and-is an act demanding the compensation which the law awards when land is taken for public purposes.
Our conclusion may be the occasion of some novelty of practice under railway grants, but is not an innovation on the law.
In England it would seem from an examination of a late case, (Ramsden v. Manchester Junction R. R. Co., 5 Eng. Railway and Canal Cases, 552,) that the owner’s residuum of estate in land used for a highway, is conceded to be a proper subject of pecuniary damages when the same land is tunneled for a railroad.
In this country the course of decisions upon this subject is not uniform.' Many years ago in the state of New York, the supreme court promulgated through Chief Justice Nelson, a decisive opinion in favor of the same position as that now assumed. (Presbyterian Soc. of Waterloo v. Auburn & Rochester R. R. Co., 3 Hill, 567.) In later cases, and especially in that of Williams v. Central R. R. Co., (18 Barb., 222,) the doctrine has been advanced that the application of a highway to railway purposes is only a new mode of enjoying the easement previously acquired by the public. It would have been proper for us to examine the reasoning and opinion of the court sustaining this suggestion, had not the court of appeals, shortly after it had been determined to sustain the present petitioners, almost unanimously rendered a decision concurrent in its result with the views adopted by us, and reversing the ease just cited. See Law Reporter for December, 1857.
The case of the Ohio & Lexington R. R. Co. v. Applegate, *260(8 Dana, 289,) was cited at the bar. But it is quite clear that the Kentucky decision, like many of those reported by Barbour, (Sup. Ct. Rep., N. Y.,) proceeded on the ground that the ownership of the fee of a highway is-vested in the public, or its representative, instead of the original proprietor. The present decision is founded upon opposite premises.
The attention of the supreme court of Massachusetts, (Springfield v. Conn. Riv. R. R. Co., 4 Cush., 63,) has been drawn to the matter under review; and the utter want of identity between railway uses and highway uses is summarily pointed out by Chief Justice Shaw.
In Pennsylvania an opposite doctrine was early announced by the supreme court of that state, (Phila. and Trenton R. R. Co., 6 Whar., 25,) but the decision was questioned a few years after by Houston J., in the case of the Monongahela Co. v. Coons, (6 Watts & Serg., 117,) and a wide departure from its principles was certainly made in Mifflin v. R. R. Co., (16 Penn. State R., 192,) where it is decided that the payment of damages to the owner of the soil of a highway by a turnpike company will not preclude him from obtaining a new appraisal when a railroad is laid out over the same locality.
Our decision upon the point now discussed dispenses with any enquiry as to the right of the petitioners to an assessment of merely consequential damages to the land adjacent to the highway, inasmuch as it is fully conceded by the defendants, that where land is taken, injury to the adjacent territory owned by the same proprietor is always to be considered by appraisers.
No argument has been offered against the equitable remedy to which the petitioners have seen fit to appeal, and we can have no doubt that it is appropriately sought.
Our advice is, that the superior court enjoin the defendants from entering upon or opening their railway through Commerce street, no appraisal of damages having been made in favor of the owners of the soil of the highway.
In this opinion the other judges concurred.
Injunction advised.