dissenting, said:
I take a very different view of the case from that taken in the opinion of the court just read, and, as the case is an important one, I will state the reasons for my dissent. I agree that the act of February 10, 1880, does not provide for additional compensation to the owners of lands abutting on highways along which telegraph lines may be constructed, and, therefore, that the question in the case is, whether, on that account, the act is unconstitutional.
But before proceeding to discuss that question, I will remark that the case, as presented by the record, is quite an extraordinary one. The plaintiff sued to recover damages to the amount of $1,950, although the assessed fee-simple value of his land abutting on the highway is only $175. Yet the jury returned a verdict for $550 damages, and the alleged injury consists, as far as I can ascertain- from the record, in planting a single pole strung with wire on so much of the highway as passes over the plaintiff’s land, and “ cutting trees and under-wood ” that grew upon the highway; from all which the inference seems to have been drawn by the jury and the court below, that if the plaintiff’s land is worth little or nothing for taxation, its value for telegraph purposes is enormous.
Inasmuch, however, as no formal bill of exceptions was filed to the action of the court in overruling the defendant’s motion to set aside the verdict (although the record recites that an exception was taken) and there is no certificate of the facts proven or of the evidence, I will confine myself to'the *709question of the constitutionality of the act; and that depends upon whether the use of a highway for a telegraph line is a new servitude upon the soil, or whether it is included in the original appropriation. If the latter view he the correct one, .then there has. been no taking of the plaintiff 's property, within the meaning of the constitution, under the act in question, but simply the grant of a privilege to use a public easement, which has already been paid for, and which is subject to the regulation and control of the legislature.
What, then, is the nature and extent of the public easement In land condemned for a highway ? The plaintiff contends that it is merely a right of passage, and nothing more; and Bolling v. The Mayor of Petersburg, 3 Rand., 563, is referred to in support of this position.
That case, which adopts the language of the ancient authorities on the subject, does indeed so hold, and when it was decided, the language used was sufficiently comprehensive to cover every then known mode of enjoying the public, right. But since that time civilization has advanced; new modes of using the public highways have been discovered, and as the » common law adapts itself to the constantly (‘.hanging wants and conditions of society, the courts have held, and rightly, I ¡ think, that the view contended for by the plaintiff is altogether too narrow and restricted; so that the principle, as now established, is that the highways of a state are not only open and free for travel and traffic, but that, with the assent of the legislature, they may be devoted, under the original appropriation, ;; to such other public uses as are consistent with their use as; public thoroughfares.
“ The more ancient decisions,” says Angelí, “limited the rights of the public [in highways] to that of passage and repassage, and treated any interference with the soil, other than ivas necessary to the enjoyment of this right, as a trespass. But. the modern decisions have very much extended the public right, and particularly in the streets of populous cities'.” And *710then he goes on to say that, “ whether the corporation be the owner of .the fee, or whether it be merely the trustee of the streets and highways as such, irrespective of any title to the soil, it has the power [with the sanction of the legislature] to authorize their appropriation to all such uses as are conducive to the public good, and do not interfere with their complete and unrestricted use as highways; and in doing so, it is not obliged to coniine itself to such uses as have already been permitted. As civilization advances, new uses may be found expedient.” Ang., Highways, sec. 312.
Another author, in treating of the same subject, uses this language: “ The use of property taken by the right of eminent domain is not confined to the precise mode or kind of use which was in view at the time of the taking, but may extend to other modes which were then unpracticed and unknown. Where property has been taken for a public use and ftill compensation made for the fee or a perpetual easement, its subsequent appropriation to another public use—certainly if one of a like kind—does not require further compensation to the owner.” Pierce, Railroads, 233.
One of the numerous cases in which this principle has been decided, is Chase v. Sutton Manuf’g Co., 4 Cush., 152, in which case Chief Justice Shaw said that, where, under the authority of the legislature, in virtue of the sovereign power of eminent domain, private property has been taken for a public use, and a full compensation 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, no new claim for compensation can be sustained by the owner of the land over which it passes; and to the same effect is Peddicord v. Balt. &c. Pass. R. Co., 34 Md., 463, in which case it was held that the use of the bed of a turnpike for the purpose of a passenger railway was not a new and distinct servitude, which entitled the abutting owners to new compensation, because, in the opinion of the court, such use did not exclude or seriously interfere with *711the original modes in which the highway was used, but simpU added another in furtherance of the same general object.
“ It is true,” said the court, “ that when the right of way was originally acquired, and when it was granted to the turnpike company, it was not actually contemplated by any of the parties to the acquisition and grant, that it Avould be used for a passenger railway, yet it may be said to have been within the legal contemplation of all that it was to be used for all purposes by which the object of its creation, as a public highway, could be promoted. The pai’ties looked to the future as well as to the present, and it cannot be supposed that the authors of its existence intended otherwise than that it should respond to whatever demands neAv improvements and increased facilities might, make upon it, so only that such demands must be always consistent with its character and purpose as a public highway.”
The same principle is laid down with great force and clearness by Chief Justice Shaw in Commonwealth v. Temple, 14 Gray, 69. In that case it was held that all public easements intended for the common and general benefit, A\diatever may be their nature and character, are under the control and regulation of the legislature, exercising the sovereign power of the state, and, therefore, that it was competent for that body to authorize a street railway to be constructed and maintained by a private corporation in the public higliAvay. “ It is the great merit of’the common larv,” said the eminent jurist Avho spoke for the court, “ that it is founded upon a comparatively few broad, genera] principles of justice, fitness and expediency, the correctness of which is generally acknoAvledged, and Avhicli at first are few and simple; but which carried out in their practical details, and adapted to extremely complicated cases of fact, give rise to many and often perplexing questions; yet these original principles remain fixed and are generally comprehensive enough to adapt themselves to new institutions and conditions of society, neiv modes of commerce, neiv usages and *712practices, as'the progress of society in the advancement of civilizati .n may require.”
So in the subsequent case of Attorney-General v. Met. Railroad, 125 Mass., 515, it was again decided that it is within the power of the legislature to authorize the construction of a street railway, without the consent of the adjoining 'proprietors, and without additional compensation to them; that the future alteration and use of public streets for public travel must always be subject to reasonable modification by future legislation; that the compensation of the adjoining land owners must be presumed to have been adjusted to such future changes; and that their convenience may be affected thereby without impairing any constitutional right to additional compensation. In other words, that any inconvenience or annoyance resulting from such changes is a merely incidental injury, or damnum, absque injuria ; just as this court has repeatedly decided with respect to incidental injuries to land owners caused by the alteration, in a lawful manner, of the grade of a public street. Smith v. City Council of Alexandria, 33 Gratt., 208; Kehrer v. Richmond City, 81 Va., 745.
In Cooley’s Constitutional Limitations, 552-55, the author, after remarking that when property is appropriated for a public way, and the proprietor is paid for the public easement, the compensation is generallyYstimated, in practice, at the value of the land itself, says further that. “ a strong inclination is apparent to hold that when the fee is taken, it is taken for any public use whatever to which the public authorities, with the legislative assent, may see lit afterwards to devote it- in furtherance of the general purpose of the original appropriation; and if this is so, the owner must be held to be compensated at the time of the original taking for any such possible use.” There is no material difference in principle, however, as the author points out in a note, with regard to the extent of the rights of the public in a highway, whether the fee is in the public or in the adjacent land-owner, or in some third person. In either *713case the legislature may, without providing for additional compensation, authorize such uses to be made of the highways as are conducive to the public convenience, and not repugnant to the purposes of the original appropriation. See, also, Barney v. Keokuk, 94 U. S., 324.
Tn many of the states of the Union it has been held that the use of a highway eveu for a steam railway is not an additional burden upon the land of the adjoining proprietor, which entitles him to increased compensation; and so it was held in the case last mentioned, the supreme court, in that particular following the local law of Iowa, in which state the ease arose and was decided. The weight of authority, however, is the other way, the idea being that such a use of the highway is inconsistent with its use by the general public, to which it had been legally appropriated. And Judge Dillon says that while there is solid ground to distinguish between steam and horse railways, yet there is much to recommend as sound the view that where property is acquired for a street it may be used as a street, under the original appropriation, in such way as the legislature representing the public, and best acquainted with the public needs, may authorize. 2 Dill. Mun. Corp. (3d ed.), sec. 722.
This was substantially the view taken by Chief Justice Gibson, with whom the whole court, concurred, in the case of the Phila. & Trenton R. R. Co., 6 Wharf., 25, where it is said that as in England a highway is the property of the king as parens patria'., so here it. is subject to the paramount, authority of the legislature in the regulation of its use by carriages or means of locomotion “yet to be invented,” and that the remedy for an abuse of this power is with the people, who, by changing their rulers, may change the law. And it is not. easy to see why, upon principle, this should not be regarded as the true solution of this whole matter.
In some of the cases a distinction is suggested between highways in the country and streets within the limits of cities or *714towns; according to which the latter may be used for more various uses than the former, as for laying gas and water pipes, the construction of horse railways, sewers, levees, wharves, and other accommodations for the public. But as both the highway and the street are opened for the same general purpose— and a street is a highway—there would seem to be no sound basis for such a distinction.
Much of the confusion in the decisions on the subject of the constitutional power of the legislature over highways is owing, it seems to me, to a failure to discriminate between the use for which a highway is appropriated and the modes of using it. Hence, in passing upon such questions, a clear idea of what a highway is ought always to be kept in view. And what is a highway? Perhaps no better definition of it, in the light of reason and the modern decisions, can be given than to say that it is a road or thoroughfare for the use of the general public for the purpose of inter-com.munication, which embraces the right to ■ use the highway, not only for passage, but for the transmission of intelligence.
formerly, as before remarked, the only mode by which intelligence could be transmitted over a highway was by passing over it. But it is uot so now. The discovery of the telegraph and the telephone has revolutionized the methods of inter-communication ; and I am unable to perceive why, when a message is sent over a telegraph or telephone wire erected on the public highway, the same, or substantially the same, use is not made of the highway as when a message is sent over it by a messenger on foot or on horseback. In the one case, as was well said in the argument at the bar, the message goes with the messenger; in the other, it goes without a messenger—the only difference being in the mode of sending it. And it hardly seems in keeping with the progressive spirit of the common law, in eulogy of which so much has been justly written, to say that the new method is not admissible, though with the assent of the legislature, because it was not known to Bracton *715or Blackstone. Said the court in Dickerson v Colgrove, 100 U. S., 578: “ The common law is reason dealing by the light of experience with human affairs.” And what experience had our fathers with electricity, as an element of inter-communication, in 1825 when Bolling v. Mayor of Petersburg was decided? hlone whatever.
That the new method is not inconsistent with the ordinary use of a highway is, to my mind, obvious. Indeed, it is in aid of it; for it not only furnishes vastly increased facilities of intercommunication, but it tends to the relief of the highway-; by lessening travel over it—which in populous cities, and even* in the country, is no small consideration. And here it may he remarked that the statute expressly provides that in no case shall a telegraph or telephone erected along a highway obstruct the ordinary use of the highway. Acts 1879-80, p. 58; Code, secs. 1287-1290. " '
As to the complaint that in constructing its line, the defendant cut down trees of the plaintiff, it is enough to say that it appears from the record that no poles were plauted or trees cut except on the highway, and this it was as competent for the defendant to do, under the authority conferred by the legislature to construct- its line, as it was for the public authorities, in the first instance, to cut down such trees as stood in the way when the road was being opened and constructed. The record recites that “ all of the acts complained of as done by the defendant upon the lands of the plaintiff were confined to the said legal road of thirty feet, and were necessary to the proper and effective construction, maintenance and operation of the said telegraph line of the defendant.”
In the argument a number of authorities were cited to show that it is not competent for the legislature to authorize a telegraph company to construct its line over the right of way of a railroad company, without makiug just compensation therefor ; and this, I take it, no one will deny. The road-bed and right, of way of a railroad company—at least in this state— *716is as much its property as is its rolling stock, or the money ■in its treasury, and the one can no more be lawfully taken without just compensation than the other. But that is a very different ease from this; for. here I have endeavored to show that the plaintiff’s property has not been taken; that nothing has been granted but the right to use a public easement, which right, under no circumstances, can last longer than the easement itself.
Fortunately, direct authority is not wanting in support of these views. The precise question has been adjudicated in two well-considered opinions, one by the supreme judicial court of Massachusetts in the case of Pierce v. Drew, 136 Mass., 75 ; the other by the supreme court of Missouri in the case of The Julia Building Ass’n v. The Bell Telephone Co., 88 Mo., 258, in in both of which cases it was distinctly held that an additional servitude is not imposed by the erection on a public highway of a telegraph or telephone line, under á statute of the state, and that such statute is not unconstitutional, because it makes no provision for additional compensation to the ■owners of the fee in the highway.
In the first mentioned ease, the court, in an able and learned ■opinion by Mr. Justice Devens, said: “ The discovery of the telegraph developed a new and valuable mode of communicating intelligence. Its use is certainly similar to, if not identical with, that public use of transmitting information for which the highway was originally taken, even if the means adopted are quite different from the post-boy or the mail-coach. It is a newly-discovered method of exercising the old public easement, and all appropriate methods must, have been deemed to have been paid for when the road was laid out.” And he added that “ under the clause to regulate commerce among the states, conferred on congress by the constitution of the United States, although telegraphic communication was unknown when it was adopted, it had been held that it is the right of congress to prevent the obstruction of telegraphic *717communication by hostile state legislation, as it has become an indispensable means of inter-communication.” Citing Pensacola Telegraph v. Western Union. Tel., 96 U. S., 1. See also, Telegraph Co. v. Texas, 105 U. S., 460; Western Union Tel. Co. v. Alabama, 132 U. S., 472, and cases cited.
In the telephone case, it was said : “ If a thousand messages were daily transmitted by meaus of telephone poles, wires and other appliances used in telephoning, the street through these means would serve the same purpose, which would otherwise require its use either by footmen, horsemen or carriages to effectuate the same purpose. In this view of it, the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a servitude or use by a footman, horseman or carriage.”
In opposition to these views, the case of Board of Trade Tel. Co. v. Barnett, 107 Ill., 507, has been cited. That case was disapproved of by both the Massachusetts and Missouri courts, and, I think, with good reason. The case decides that there is no difference in principle between a telegraph and a steam railway in a country highway, so far as the abstract, question of servitude is concerned, and that as the railway is an additional servitude, so also is the telegraph. But this reasoning, to my mind, is fallacious. In the nature of things, the use of a high-, way for operating a steam railway more or less excludes the j ordinary methods of travel, and is attended with other ineon-j veniences besides. But can this be said of the telegraph ? In what way does a telegraph erected on the side of a highway in the country interfere with the iffghts of the abutting owner, or with its use as a public thoroughfare? Does it exclude or obstruct travel ? On the contrary, it is obviously much less of an obstruction than travelers on horseback or in vehicles over the road usually are to one another; and as to any increased dangers or annoyances resulting from the use of streets in a *718city for the stringing of numerous wires, of which much has been said, that is not a direct hut an incidental injury, which is a matter for the legislature, and not for the courts, to consider; for nobody doubts that, in such cases, the legislature may, if it sees fit, require additional compensation to the owners of the fee to be-made.
It has never been questioned, so far as I am informed, that the legislature may authorize telegraph wires to be laid beneath the surface of a street, without additional compensation therefor; and if this can be lawfully done, the power to-authorize the wires to be put above the surface would seem to be equally clear, the difference being a mere matter of regulation, as to which, as we have seen, the power of the legislature is unqualified.
As to the ease of Warwick & Barksdale v. Mayo, 15 Gratt., 528, decided in 1860, and to which our attention' has been called, I have only a word to say. In that case Allen, P., announced the elementary principle that the right of freehold is not touched by establishing a highway, but continues in the original owner of the land, subject to the public easement, and he referred as authority to the case in 3d Randolph. But no question that arises in the present case arose in that case, or was probably dreamed of; and even if it had been decided that no mode of using the public easement is lawful, without additional compensation to the owner of the fee, than such, as was known and practiced a half a century ago, that would be no reason, if the decision is wrong, for perpetuating the error.
Until a comparatively recent period no one ever heard of an instrument under seal being negotiable, and yet, at the preseut day, there are sealed instruments, the negotiability of which is recognized everywhere, not by virtue of statutes, but because an advanced civilization and the consequent necessities of commerce require it; in other words, because the common law is expansive, or rather comprehensive, enough, to adapt itself to the wants and conditions of modern society.
*719Another illustration may be drawn from the. course of decision in admiralty. For more than fifty years after the adoption ofitlie constitution, the subordinate Federal courts, following th. English decisions defining the jurisdiction in admiralty, held that the admiralty jurisdiction of the United 8tat.es was confined to tidewater; and so the supreme court itself decided in the case of The Thomas Jefferson, 10 Wheat, 428. But in the case of The Genesee Chief, 12 How., 443, which was a case of collision on Lake Ontario, Chief Justice Taney, speaking for the court, in one of his most celebrated opinions, pointed out that while the definition of the jurisdiction, so far as it related to England, was a sound and reasonable one, because in that country there was no navigable stream beyond the ebb and flow of the tide, and that at the time the constitution was adopted, the definition was, for all practical purposes, a proper one for this country also, yet that it had ceased to be so, and accordingly the court declared that the jurisdiction extends to all waters that are in fact navigable, whether tide-waters or not, thus overruling its own previous decision on the subject, as being erroneous because not going far enough. In the course of his opinion, the Chief Justice used language which with propriety may be quoted here. He said:
“ It is the decision in the case of The Thomas Jefferson which mainly embarrasses the court in the present inquiry. We are sensible of the great weight to which it is entitled. But at the same time we are convinced that, if we follow it, we follow an erroneous decision into which the court fell, when the great importance of the question as it now presents itself could not be foreseen, and the subject did not therefore receive that deliberate consideration which at this time would have been given to it by the eminent men who presided here when that case was decided. For the decision was made in 1825, when the commerce on the rivers of the West and on the lakes was in its infancy, and of little importance, and but little -regarded compared with that of the present day.”
*720I refer to this merely to show into what errors courts sometimes fall by blindly following decisions that are not applicable to our own times and circumstances, forgetting that the world / is moving onward, and that common law is common sense / dealing by the light of experience with human affairs. And i it is into just such an error, it seems to me, that the court has fallen in the present case.
My opinion, therefore, is that the act in question is constitutional and valid, and that the judgment of the circuit court should be reversed.
Richardson, J., concurred with Lewis, P.
Judgment affirmed.