concurring in this opinion, we hold that under the facts alleged and the law applicable thereto, as expressed in the foregoing opinion, the complaint herein states a right of action for damages on the grounds: (1) That the operation of appellees’ roads constitutes an additional burden or servitude ■ upon the public street in ques*601tion upon which appellant’s property abuts; and (2) that she is entitled to recover the special damages which she is shown to have sustained by the operation of appellees ’ railroads. The lower court, therefore, erred in sustaining the demurrer to the complaint, for which error the judgment should be reversed.
2. 3. The majority of the court, however, have reached the conclusion, and so hold, that under the- facts averred in the complaint and the law applicable thereto, appellees’ railroads do not constitute an additional burden or servitude upon any of the public streets of the city of Indianapolis; that the complaint states a cause of action in favor of appellant only for the recovery of the special damages which she has sustained, as shown by the facts alleged, and for this reason only it is held by the majority that the lower court erred in sustaining the demurrer to her complaint. The judgment is, therefore, reversed, and the cause remanded, with instructions to the lower court to overrule the demurrer to the complaint, and for further proceedings not inconsistent with the holding of the majority of this court.
Hadley, C. J.I am of opinion that plaintiff states in her complaint facts sufficient to entitle her to recover special damages, but I am unable to agree that the operation of interurban cars, within the scope of the charter rights of the company, on the tracks and with the permission of the local street railroad company and the city authorities, is such a new and additional servitude to the plaintiff’s land underlying College avenue as will entitle her to recover compensation therefor.
The far-reaching importance of the question involved constrains me to state some reasons for the conclusion I have reached.
*6022. *601The principal question may be thus stated: Is an interurban electric railroad, such as was within the legislative *602intent when it authorized the organization and operation of such railroad over College avenue, in the city of Indianapolis, an additional servitude on the fee of the soil occupied by the street ? A public street is a public highway, and means a strip of ground set apart by condemnation, or by gift and dedication, as a public passageway, which every citizen has the right to use on the same terms. 2 Bouvier’s Law Dict. (Rawle’s ed.), 1049. Elliott, Roads and Sts. (2d ed.), §16; City of Indianapolis v. Higgins (1895), 141 Ind. 1. When ground is appropriated as a public highway, it is taken over by the State, in trust, for the common use and benefit of all the people, and in accepting the trust the State impliedly assumes the obligation to maintain it as a public way, free from unnecessary obstruction, and open to the safe and convenient passage of the public, and to its trade and commerce.
Town of New Castle v. Lake Erie, etc., R. Co. (1900), 155 Ind. 18, 23. The State, for convenience, apportions its highways among the various political divisions of the state government—that is to say, to counties, townships, cities, and towns—for construction, care and maintenance, but it has assiduously reserved to itself the right to supervise the use, management, and control of such ways, whether urban or rural.
The power of collecting revenues for the construction and maintenance of highways, for making permanent improvements of both streets and country roads, is not only conferred on the above-named governmental agents, but the mode and manner in which such power shall be exercised is specifically pointed out by legislative decree, and must be closely followed. Elliott, Roads and Sts. (2d ed.), §545, and eases collated; Town of New Castle v. Lake Erie, etc., R. Co., supra. Any obstruction or invasion of the integrity of the highway, rendering it unsafe or inconvenient for public use, is an offense against the State, and not the municipality. §2043 Burns 1901, §1964 R. S. 1881. Erecting a stable in *603the street (Boyer v. State [1861], 16 Ind. 451); maintaining a fruit-stand on the sidewalk (State v. Berdetta [1880], 73 Ind. 185, 38 Am. Rep. 117); stopping a railroad train on a street crossing (§2297 Burns 1901, §2176 R. S. 1881) ; running horses through, or shooting along, streets (Flinn v. State [1865], 24 Ind. 286) ; and running traction engines over streets (§2044 Burns 1901, Acts 1889, p. 428, §1) — are all unwarranted interferences with the public use of the streets, and are punishable by the State. For an instructive lesson as to the breadth of the powers asserted by the General Assembly over the highways of the State, and particularly the streets, see what is enjoined upon cities of the first class (Indianapolis) in the granting and regulation of rights to street railroads. The statute provides that the city shall require, by contract, of any company granted the right to operate a street railroad within the city, a definite franchise period, the rate of fare to be charged, the method of propulsion, the right to demand a change thereof to secure better service, that said company pave between its tracks, and keep the same in repair under the supervision of the city engineer, extend its tracks in the streets when required by public convenience, and permit the use of its tracks' by any incorporated interurban railroad company to some central point in the city, to discharge and receive passengers, the board of works to designate the tracks to be so used. In brief, the city is required to reserve the right to exercise such control over the operation, construction and maintenance of the city railroad lines as will secure efficient and first-class service to the public. Acts 1899, p. 260.
The public nature and legislative control of streets and other highways is clearly stated by Mr. Dillon in the following language: “Public streets, squares, and commons, unless there be some special restriction, when the same are dedicated or acquired are for the public use, and the use is none the less for the public at large, as distinguished from the municipality, because they are situate within the limits *604of the latter, and because the legislature may have given the supervision, control, and regulation of them to the local authorities. The legislature of the State represents the public at large, and has, in the absence of special constitutional restraint, and subject (according to the weight of more recent judicial opinion) to the property rights and easements of the abutting owner, full and paramount authority over all public -ways and public places. ‘To the commonwealth here,’ says Chief Justice Gibson, ‘as to the king in England, belongs the franchise of every highway as a trustee for the public; and streets regulated and repaired by the authority of a municipal corporation are as much highways as are rivers, railroads, canals, or public roads, laid out by the authority of the quarter sessions.’ ” 2 Dillon, Mun. Corp. (4th ed.), §656.
Another fundamental principle: It is the law of this State that a general grant of a highway to the public, whether set apart by dedication or condemnation, unless otherwise expressly provided, carries with it nothing more than an easement of the right to use the land in the manner and for purposes consistent with a public highway. Cox v. Louisville, etc., R. Co. (1874), 48 Ind. 178; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264. The fee in the soil over which the highway runs remains in the dedicator, or in him from whom the easement has been appropriated, and the conveyance of a lot abutting on a city street, thus acquired, carries with it the fee in the soil to the center of the street. Board, etc., v. Indianapolis Nat. Gas Co. (1893), 134 Ind. 209; Coburn v. New Tel. Co. (1901), 156 Ind. 90, 52 L. R. A. 671. It follows that the plaintiff, being the owner in fee of a lot abutting on College avenue, in the city of Indianapolis, is also the absolute owner in fee of the soil to the center of the street, subject only to such servitude as is imposed upon it by the appropriate uses of an urban'public highway. It is, therefore, perfectly clear that neither a *605corporation, nor the city, nor the legislature itself, has authority or power to subject the plaintiff’s property to any use or burden inconsistent or inappropriate to the highway easement, without rendering her compensation, as required by the Constitution. Lostutter v. City of Aurora (1891), 126 Ind. 436, 12 L. R. A. 259; Terre Haute, etc., R. Co. v. Bissell (1886), 108 Ind. 113. While the powers of the legislature over the streets, and other highways, are very broad, it must be understood that those powers relate only to the preservation, maintenance and regulation of such highways in furtherance of the original design as a common and convenient way for all the people. Elliott, Roads and Sts. (2d ed.), §22.
The plaintiff must bear all the annoyances and inconveniences incident to a proper use of the street, and has no ground of complaint until the roadway in front of her property is subjected to a use unwarranted by the dedication. What, then, were the uses contemplated by the dedication? Generally speaking, travel and transportation. It will not do to coniine them to the modes and usages known to the owner at the time of the dedication. The grant was to the public then present, and to come, and impliedly for any efficient mode or means, not materially detrimental to the abutters, that might thereafter become necessary to the free and convenient use by the public for purposes of travel, traffic and communication. Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222; Coburn v. New Tel. Co., supra; Magee v. Overshiner (1898), 150 Ind. 127, 40 L. R. A. 370, 65 Am. St. 358. Any reasonable means or modes that promote or facilitate these ultimate ends are consistent with the dedication. As we said in the case of Coburn v. New Tel. Co., supra: “In sparsely settled towns and cities public necessity requires but little of the servient owner beyond the right of unobstructed passage over the street, but as cities become populous and towns crowded with traveling foot*606men and vehicles, public necessity increases with the multitude, and whenever the necessity exists, any use of the street by reasonable structures and devices, * * * and which does not materially obstruct the ingress and egress, and light and air, to abutting property, is within the contemplated purpose of the dedication, and not a new burden upon the fee.” The doctrine of the case just cited rests upon the principle that it was foreseen, at the time of the dedication, that the population would increase, and congregate in our cities and towns till the streets would become crowded and congested with passing footmen and vehicles, and that the introduction, in such cases, of any discovery or new method that will relieve the streets, facilitate intercommunication, and diminish the dangers and discomforts of the jostling crowd, without material injury to abutters, will be a proper use of the. street as a public highway. As the uses of the village street are expected to expand to meet the exigencies of the inereásing public, new and improved modes are expected to respond to the new requirements. It was the application of these principles that brought the telephone poles and wire in to the curb line of the streets, and none will gainsay that the use of these wires, in the city of Indianapolis, dispenses with thousands of passages through the streets every day. It likewise brought the street-car, confined to a fixed track in the middle of the street, first fourteen feet long, drawn by horses, and capable of carrying a dozen passengers; then about twenty-two feet long, propelled by electricity, with capacity for twenty-five passengers, and which has been since developed into cars forty-four feet long and capable of carrying 125 passengers. The masses of the people are transported to and from the places of their employment by these cars, to the great relief of the streets. As things are, it is seldom that one is delayed, annoyed or put to inconvenience, in his passage through the streets, either as a pedestrian or in a vehicle; but what would happen to Indianapolis if the street-cars *607and telephones were removed from her public ways, without the substitution of other means of travel and communication of equal efficiency?
It is settled in this, and most other states of the Union, that the use of telephones and street-cars, being in aid of the public easement, is a proper use of the street, and not an additional burden upon the fee in the soil underlying it. Mordhurst v. Ft. Wayne, etc., Traction Co., supra, and cases cited.
AVhat, then, constitutes an interurban railroad, such as is authorized to occupy the streets of Indianapolis, and wherein does it differ from the ordinary commercial railroad authorized in 1853, and the street railroad authorized in 1861 ? The character of the legislation upon the subject, which we will briefly notice, will furnish us the most reliable answer.
It is enough to say of the ordinary railroad that it came when the population was diffused, transportation difficult and slow, and it generally contemplated large enterprises, great distances, a carriage of all kinds of freight, expensive power, and long, heavy and infrequent trains, the track to be laid upon its own independent grade with ele-, vated rails, and upon private property, and not on the streets and highways, save in exceptional cases for the convenience of urban population.
The original design of the street railroad was the antithesis of the steam railroad. It was to lay its tracks in the streets and highways, to be operated by the running of single cars at brief intervals and frequent stops, thereby constituting a new and useful mode of using the highway for convenient passage. Let us see how the General Assembly has indicated this purpose.
In the first place, the legislature of 1861 deemed it necessary to pass another and different act from that of 1853, to authorize the operation of railroads in streets and highways. The act of 1861 (Acts 1861, p. 75), was entitled “An act to provide for the incorporation of street railroad companies, ’ ’ *608It was enacted that such company may, by consent of the common council, construct its tracks, switches and turnouts upon the streets of the city or town under the conditions and restrictions that they shall conform exactly to the established grade of the street, the free passage of which shall not be obstructed beyond what is necessary in the operation of the cars, and all street crossings to be constructed so as to be passable and in as good condition as any other portion of the street.
As an evidence that the legislature did not mean to confine the street railroad to municipal limits, in 1865 (Acts 1865, p. 63) an act was passed giving to such companies the right to extend their street-car tracks beyond the corporation limits, on any state or county road, by consent of the county commissioners. This act was amended in 1879 (Acts 1879 [s. s.], p. 175), so as to give the right to build an independent street railroad outside of any city, on any public highway, to which the county commissioners would yield their consent.
In anticipation that freight-ears might become necessary, or at least a proper means of conveying property through the streets of our large cities, it was enacted in 1891 (Acts 1891, p. 337, §59, §3830 Burns 3901) that in cities of more than one hundred thousand the board of public works, with the consent of the common council, might purchase or erect street-car or other lines for the conveyance of passengers and freight.
In 1899 (Acts 1899, p. 408) an act was passed requiring all street-car companies, organized under the incorporation act of 1861, and operating a railroad in any city of more than one hundred thousand inhabitants (Indianapolis), to permit the use of its tracks by any incorporated passenger interurban railroad company to some central part of the city, to receive and discharge passengers; and, evidently to avoid further incumbrance of the street with structures, it was provided in said act “that such suburban or entering *609company shall not erect other poles or lay any additional rails in or on any such streets, alleys or highways already occupied. ’ ’
Remembering that we speak of street railroads, or railroads of the same kind, different only in name, that may do all and only the things that street railroads may do, according - to legislative intention, we come to the act of 1899 (Acts 1899, p. 378, §5468i et seq. Burns 1901), entitled “An act to authorize the consolidation of two or more street railroad companies,” etc. It provides that, upon effecting the consolidation, the new company shall cause notice thereof to be recorded in the recorder’s office of the different counties through which the road of such company may run. It also authorizes any street railroad company, organized under the laws of this State for the purpose of building a street railroad, to build such road from any point in the State to the State line, thus making it clearly manifest that' the legislature intended that the railroad authorized by consolidation to run through more than one county, and from any point in the State to the State line, was to be nothing more nor less than the street railroad, with identical powers and obligations.
A very significant act was passed in 1901 (Acts 1901, p. 461, §5468a et seq. Burns 1901), entitled “An act concerning street railroad companies, granting additional rights and powers,” etc. It provides, among other things, that any street railroad company, heretofore or hereafter organized, shall, in addition to the rights and powers already given to street railroad companies by law, have the right of eminent domain; also the right to construct and operate railroads connecting cities and towns; also the right to regulate the time and manner in which passengers and property shall be transported.
It will be noted that this act grants, not to interurban, but to street railroad companies, additional rights and *610powers; and among these additional rights and powers is the right to construct interurban roads connecting cities and towns, and to regulate passenger and property transportation. This act is a distinct recognition that a company organized under the street-car act of 1861, supra, may construct and operate a street railroad, an interurban or suburban railroad, and that any act not warranted by the charter of the street railroad company is forbidden the interurban company.. In other words, whatever, in the operation of its railroad in the city of Indianapolis, would be wrongful and constitute negligence, or ultra vires, in the city company, would be none the less wrongful in the interurban company.
While it cannot be said that authority from the legislature and city, to enter the streets of Indianapolis on the rails of the local street-ear company, will, of itself, prejudice or affect the question of additional servitude, yet, the unmistakable purpose of the General Assembly to confine the rights and powers of the interurban companies strictly within the charter rights of the street-car companies, which are declared by the courts to be in aid of the common public use, and not a new burden to the street, is of value as indicating the design of that body so to limit the operation of interurban roads, at least within the cities, as to make their presence of no greater or different burden to the streets than that of the street railroads. Indiana, etc., R. Co. v. Eberle (1887), 110 Ind. 542, 546, 59 Am. St. 225, and cases cited.
Then what may a street railroad company, organized to operate a street railroad within the city of Indianapolis, rightfully do within the limits of its charter? It may adopt any means for the transportation of persons and property, not harmful to the abutter, not inconsistent with any proper use of the highway, and useful and efficient in facilitating the passing and repassing of persons and freights through the streets. There is, in general dedica*611tions and appropriations, no limit to the number of people and vehicles that shall have the right to pass a street in a suitable manner, and no abutting lot owner has any cause of complaint or for damages on account of the number, however much the annoyance, and however much the ingress to and egress from his property is interfered with. So any mode of transportation, unattended by a countervailing nuisance, and that removes the crowd from the streets, and makes public travel freer and safer, and the abutter’s property more accessible and enjoyable, is a suitable and consistent use of the street for which it was originally taken. Briggs v. Horse R. Co. (1887), 79 Me. 363, 10 Atl. 47, 1 Am. St. 316.
We know, as a matter of history, that the street-car, from its earliest, introduction, has been, and still is, essentially a one-car system, intended as an aid to the public easement. It was designed to occupy the public thoroughfares, in populous communities, its tracks to conform to the exact grade of the street, so as to deprive no traveler of any part of the street, and no abutter of the free ingress to and egress from his property; the ears to be run at a moderate rate of speed, at short intervals and with frequent stops; to take up passengers and discharge them at their destination, without delay, and before they shall accumulate in large numbers in the streets; to run slowly and with little momentum, and'thereby enable the driver to keep it constantly under control. Any other method of operation in the streets -would be incompatible and inconsistent vdth the general highway use. Trains of cars are disallowed as being unsuitable and unnecessary to the public requirements, therefore inconsistent with highway uses. Long trains occupy long intervals in passing, cause undue obstruction in the street, and delay to those who desire to pass over the track at street crossings. To illustrate: The single car, forty-four feet long, running at the rate of eight miles an hour, will clear the roadway of a cross street *612in about two seconds, and cause the traveler on the street only a momentary pause. But a train of three ears, each sixty feet long, or one hundred eighty feet in all, such as the complaint alleges are run over College avenue, will not only occupy a large amount of space in the street, but consume several seconds in passing a given point, and thus materially and wrongfully interfering with the free use of the cross streets. Street and interurban cars may also become so numerous and frequent on certain streets as to constitute a public nuisance, but this may easily be remedied by the city authorities sending some of them to other tracks, as we shall hereafter see they have full power to do.
Undoubtedly the chief business of a street-car is the carrying of passengers, but there appears in the law of the highway no objection to its carrying light and package freight. It has, perhaps, always been the custom in Indianapolis to carry, for its passengers, hand baggage, filled and unfilled market baskets, tool boxes, baby carriages, clothes baskets, and all manner of small árticles and packages that may be conveniently handled from the platform; also, to carry, without an accompanying passenger, the United States mail from the central office to the various substations of the city; likewise a large number of packages of newspapers from downtown offices, and depots receiving consignments from St. Louis, Cincinnati, and Chicago, to the hundreds of distributing points throughout the city.
Repair and construction materials, and perhaps some private freight, are hauled through the city in the local company’s cars, and no complaint is heard, nor inconvenience manifested. .
Besides, what principle can be advanced in condemnation of the inclosed, reasonably sized, neatly constructed freighter express-car? "Was not the transportation of property over the roads and streets as deeply seated in the dedicatory *613purpose as the passage of persons? Plainly the reasons that justify the one support the other. The heavy drays and wagons employed in handling the commerce of the city are a greater obstruction to the street, and menace to the safety of those using it, than the number of pedestrians. Therefore a suitable car, comparatively noiseless, confined to a fixed track four or five feet wide, in the center of the street, to which track vehicles may be safely adjusted by keeping to the right, and which car will carry twenty fold more freight or express than a wagon occupying the same amount of space in the street, and meandering in an irregular track, cannot, for any sufficient reason, be declared a nuisance, or an improper use of the street. No use should be held improper that produces no extra hazard, and makes the way easier, safer and more convenient as a passageway for the public in common.
The further legislative purpose manifested by the foregoing enactments was to obviate the localization of street railroads. Any purely local use of a thoroughfare is inconsistent and subversive of the common public right to use it on equal terms, from end to end. The second act passed (Acts 1865, supra) was to authorize the extension of a street railroad into the country over public highways. The third (Acts 1879, supra), was to authorize the construction of street railroads, independent of, and outside of, the city limits. In the nature of things, street railroads, and no other means or modes adopted as expedients in the proper use of the public easement, can, on the same terms, be enjoyed by one class of citizens and denied to another. The State is trustee of all the highways, and holds them as a system for intercommunication and exchange for all the people of the State in city and country. All must be treated alike, without reference to his place of residence, for the privilege is a highway right that belongs equally to all citizens of the State. A street railroad is not, and can*614not 'be made local in any other sense than that it receives the principal part of its business from the residents of the city.
If a city street-ear is run out into the country and returns loaded with rural passengers, and passes over the streets in the usual manner, will anyone say that carrying the out of town passengers over the streets is an unwarranted use thereof? This is just what has happened almost daily for a year on at least two interurban railroads that send their cars in and out of the. terminal station. And what difference can it make to the dwellers on the streets traversed, in the value and enjoyment of their property, whether the car that brings the nonresident passengers into the city belongs to this company or that, if it is of the same, or of a proper, size and kind, and operated in the same manner ?
And .what about the freight- or express-car? It will be taken for granted that urban population need frequent communication with the country, and the country folk, the city. Each has indispensable wants of exchange with the other. The cities require the products of the farms, as much as the residents of the country require the markets of the city. Primarily considered, these exchanges cannot be effected without the transportation of persons and property from one section to another, over the public highways provided for that purpose. A freight- or express-ear, propelled by electricity, of reasonable size, enclosed, neatly painted, and made attractive in appearance, sent into the country ten, twenty or more miles, and loaded with milk, fruit, berries, vegetables, and other products of the country, and, while sweet and fresh, hurried to the consumers in the city, passing over the streets at a rate of speed regulated by the city authorities and allowed to the city cars of a similar size, will clear the streets of twenty or more unsightly wagons, that would be required to convey to the city the same, amount of stuff contained in one car. Assum*615ing this to be a fact, I can see no reason why the running of such a car over the streets should be adjudged inconsistent with the original design and purpose of the dedication, and a new burden to the street.
As expressed by Mitchell, J., in Cater v. Northwestern Tel., etc., Co. (1895), 60 Minn. 539, 63 N. W. 111, 51 Am. St. 543, 28 L. R. A. 310: “If there is any one fact established in the history of society and of the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. * * * Hence it has become settled law that the easement is not limited to the particular methods of use in vogue when the easement was acquired, but includes all new and improved methods, the utility and general convenience of which may afterwards be discovered and developed in aid of the general purpose for which highways are designed. ’ ’ And further in the same-opinion the learned judge continues: “It seems to us that a limitation of the public easement in highways to travel and the transportation of persons and property in movable vehicles is too narrow. In our judgment, public highways, whether urban or rural, are designed as avenues of communication; and, if the original conception of a highway was limited to travel and transportation of property in movable vehicles, it was because these were the only modes of communication then known; that as civilization advances, and new and improved methods of communication and transportation are developed, these are all in aid of, and within the general purpose for which highways were designed. Whether it be travel, the transportation of persons and property, or the transmission of intelligence, and whether accomplished by old methods or by new ones, they are all included within the public ‘highway easement, ’ and impose no additional servitude on the land, provided they are not inconsistent with the reasonably safe and practical use of the highway in other usual and necessary modes, and provided they do not unreasonably impair *616the special easements of abutting owners in the street for purposes of access, light, and air.” To the same effect see Montgomery v. Santa Ana, etc., R. Co. (1894), 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. 89; DeGrauw v. Long Island Electric R. Co. (1899), 43 Hun, App. Div., 502, 60 N. Y. Supp. 163.
A distinguished author says: “When land is taken or dedicated for a town street, it is unquestionably appropriated for all the ordinary purposes of a town street; not merely the purposes to which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use for carriages which run upon a grooved track; and the preparation of important streets in large cities for their use is not only a frequent necessity, which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving.” Cooley, Const. Lim. (6th ed. by Angell), 683.
There appears no sound reason for pronouncing an interurban railroad, organized under the street railroad law of this State, an additional burden to the street, on the sole ground that it is a commercial railroad, and therefore classed with steam roads. According to the clear weight of authority, it is the nature of the business, and manner of its authorized operation, and not the commercial character of a railroad, nor the power that propels its ears, that determines whether it is in accord with legitimate highway purposes, or a new use, 'and incompatible therewith. In the case of Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 103 Am. St. 222, in touching upon this point it was said, with the unanimous approval of the court: “This distinction does not rest upon a difference in name—one being denominated a street railroad or passenger railroad, and the other a commercial or freight railroad—nor upon the motive power employed, nor upon the kind of rails used, nor upon the length of the railroad. *617It results from the nature of the business done by each of the two kinds of railroads, and the physical agencies and manner by which and in which that business is carried on. Those of the one are consistent with the use of the street by the lot owner and the general public, and, if not directly beneficial to the abutting real estate, are not detrimental to it. They relieve the streets from some of the burdens of travel upon it, they facilitate travel between different parts of the city, and they enhance the value of abutting property by increasing the convenience of access to it. The business of the other class of ’railroads, and the means by which it is necessarily carried on, require the service of entirely dissimilar agencies and methods. Great trains of ears moving along the streets, or standing upon them, are real and serious obstructions to all other uses of the highway. Such trains make a loud noise by day and by night, and disturb the quiet of neighborhoods. Access to abutting property is rendered difficult and dangerous, and the jarring and shaking of buildings is annoying to the occupants, and often injurious to the structures themselves. If the cars are propelled by steam, then there is the additional inconvenience of smoke, cinders, sparks, the blowing off of steam, the ringing of the engine bell, and the whistling of the locomotive. There are good and substantial reason? why compensation should be paid to the owners of abutting lots when a street in a city is used for such a purpose and in such a maimer. ’ ’ To the same effect see Briggs v. Horse R. Co. (1887), 79 Me. 363, 10 Atl. 47, 1 Am. St. 316.
Country wagons, large and small, carrying almost every kind of freight, may come from an indefinite distance in the country, and pass over College avenue, singly or in trains, and no one will think of complaining, or of calling in question their right to do so. The way was acquired and set apart for that purpose, in part, and everybody acquiesces in it. If this same freight were collected and placed in a ear, and run in the streets of Indianapolis, at a speed *618authorized by the city authorities and by the franchise contract of the city company, in what sense would the plaintiff receive a new injury by the passage of the car on College avenue, in lieu of the wagons that might otherwise have passed in front of her property ? There can be no new damage without a new injury. And what difference can it make in the enjoyment of her property whether the contents have been transported by the car from the corporation line,' or from a distant point in the country ? It can only affect the plaintiff or her property in the passing; and it is as much commerce in the wagons as in the cars.
No adjudication is of value in determining a question under consideration without a knowledge of the facts upon which the case is built. Under this rule, we challenge the value, as precedents, of many of the cases relied upon by appellant. At least two of the roads referred to and adjudged to be additional burdens are but connecting links between two steam traffic railroads, and áre used in passing freight-cars from one road to another.
A very similar question to the one before us arose in Alabama. In the case of Birmingham Traction Co. v. Birmingham R., etc., Co. (1898), 119 Ala. 137, 24 South. 502, 43 L. R. A. 233, the appellant was a company incorporated as a street railroad company, and engaged in the construction of a railroad from Birmingham to Gate City, to be propelled by electricity. Appellee brought injunction to enjoin appellant from constructing its road' through a street in the town of Woodlawn, to which the town had given consent, the fee of said street being in the appellee, until appellee’s damages had been assessed and paid, as for an additional servitude. The court in summing up said: “It may be said that there is almost unanimity in the adjudications that such uses are legitimate uses of streets, by permission of municipal authority, without any right of the owner of the fee to compensation.”
In the case of Newell v. Minneapolis, etc., R. Co. (1886), *61935 Minn. 112, 27 N. W. 839, 59 Am. Rep. 303, 24 Am. and Eng. R. Cas. 298, the defendant’s railroad, beginning at a central point in the city of Minneapolis, was laid in a street, conforming to the grade thereof, for a distance of two miles to the city limits ;• thence, via Lake Calhoun and Lake Harriet, for a further distance of eighteen miles to Lake Minnetonka. The ears, thirty-seven feet long, within the city are propelled, either singly or in trains of from two to four ears, by enclosed steam-engines, twenty-one feet long, having the appearance of a short ear, except for the smokestack extending a foot above the top. No bell or whistle is used. The steam is exhausted in the engine, anthracite coal is used for fuel, they run at a speed of from four to six miles an hour, stop at street comers for passengers, and a uniform' fare of five cents is charged within the city. This occupancy of the street was held to be a proper highway use, and not an additional burden. The court said, in part: “When a street is being used for the purpose * * * 0f the passage of persons and property, but objection is made to the mode of use, the question of rightfulness depends upon whether the use objected to is consistent or inconsistent with the common public use, in which every person is entitled to share. * * * It is not every mere inconvenience or temporary hindrance to which one person, in using a street, may be subjected by the manner in which another uses it, which presents a case of inconsistency with the common public right. * * * But no merely technical or trifling interruption or obstruction is to be regarded as a substantial impairment, for common sense requires that these words should receive a liberal and reasonable construction, and it must always be borne in mind that in organized civil society the individual must necessarily enjoy a common public right with reference to the general convenience and the rights of others.”
I therefore conclude upon this point that interurban cars of suitable size., construction and finish, for the carriage *620of passengers, express packages and light freight, with permission of the city authorities, may be run singly into the city of Indianapolis, upon the tracks of the local company, laid according to the law regulating street railroad tracks in city streets, to a point within the city, and over the tracks first designated by the board of public works and common council, at a reasonable rate of speed, not exceeding that allowed by law or ordinance to the cars of the local company, and in conformity to such city regulations as the authorities may from time to time impose upon street-cars operated in the streets of the city, and with the sanction and under regulation of the city authorities, temporarily, and in times of emergency created by special occasion, such a reasonable and limited number as shall be required to meet the transient wants of the public for passenger carriage, provided such increased number, in size and manner of operation, is in substantial conformity to the authorized custom of the local company on like occasions, and does not materially increase the burden of the highway easement, nor unduty interfere with other proper and legitimate uses of the street.
For an instructive and comprehensive collation of the recent adjudications bearing on the subject discussed, reference is made to extended notes to Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 106 Am. St. 222, and 66 L. R. A. 105.
1. An answer to the assignment of errors pleaded in bar of appellant's right to maintain this appeal sets up that, since the submission of the cause, appellant has sold and conveyed the property described in the complaint, since which conveyance it is alleged she has had no interest in said property. As we understand the theory of the complaint, it is an action in the nature of an ad quod damnum to recover compensation for imposing upon the fee of her soil a new servitude and other special damages, with incidental injunction asking that the wrongs *621be enjoined until her damages have been assessed, and paid or tendered, under the doctrine announced, in Indiana, etc., R. Co. v. Allen (1888), 113 Ind. 581. The answer before mentioned is of no avail. By the conveyance of her property appellant did not part with any claim for damages against appellees for the grievance set forth in the complaint, which had accrued to her before the commencement of this action. Ft. Wayne, etc., Traction Co. v. Ft. Wayne, etc., R. Co. (1908), 170 Ind. 49. If entitled to any redress her causé should not be dismissed because not entitled to injunctive relief.
3. Let us return to the complaint, the sufficiency of which to state a cause of action being the ultimate question. It is, in substance, alleged, that the appellees run over College avenue in front of appellant’s house, cars, both passenger and freight, that are sixty feet in length, and often in trains of three cars each, or one hundred eighty feet in all, at the rate of twenty or thirty miles an hour, by reason whereof the ground is made to vibrate and shake the house of appellant, situated sixty feet from the track, so as to cause the plastering to break off and fall, and her picture frames to fall from the walls and break; that the noise and vibration disturb her sleep, frighten horses hitched in front of her house and cause them to break away, and the street is rendered dangerous to all persons traveling thereon.
If the appellant can prove these averments she is entitled to recover, not because the right to operate interurban cars on College avenue imposed a- new and additional burden on her property, but because such cars have been operated in front of her house in an unjustifiable and unlawful manner. We have seen that a company operating interurban cars over the streets of Indianapolis has no greater nor different rights or powers than the local street railway company, and that whatever is not suitable and appropriate in the local company, in the use of the street as *622a public and common passageway, is not allowed to the interurban company; that the limitation of their rights and powers within the city are precisely the’ same and drawn from the same source. We have also seen that the street-car is peculiarly and essentially a one-car system, of limited and reasonable speed, and if the appellees have exceeded these rights they have gone beyond their charter limits; and if, by the exercise of a wrongful usurpation of power, they have injured the appellant, they must respond in damages, whether the principle be called negligence in operation, or ultra vires. As was said in the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra, on page 281: “The railroad company will be liable to the abutting lot owner for any special injury to his property occasioned by the negligence of the company in constructing its railroad or in operating it. Nothing that we have said in this opinion is to be understood as denying or in any degree abridging that right.”
In my judgment, therefore, the appellant is not entitled, under the complaint, to recover from appellees compensation for a new and additional burden upon her lot, but may recover any special damage to her property that has resulted from an unauthorized and wrongful operation of appellees’ cars in front of .her dwelling. I, therefore, vote for a reversal of the judgment to enable appellant to submit to the jury the question of the special damages alleged.
Gillett, J.2. To most of the conclusions announced in the opinion of Mr. Chief Justice Hadley I unreservedly assent. The public streets within the territorial limits of the State belong to the people thereof, and the particular dominion over them which municipalities enjoy is a trust for the benefit of the people at large. It is also my opinion that the interurban car, which tends more than almost any other material influence to make the resi*623dents of country and city a homogeneous people, is a proper vehicle on the city street. Public interests point to the fact that the interurban car should be recognized as a proper me.ans of using the streets. To deny it the use of the public ways in large cities would be to take from the service a large part of its flexibility and facility. As a vehicle, the interurban car conduces to the advantage of the traveling public, by permitting passengers to enter or leave the conveyance in.the heart of the city, or at intersecting streets, and, in the transportation of property, it is thereby made possible to receive and discharge packages along the line of travel, and, at some points, to load and unload considerable quantities of freight at the merchant’s door. It is a most important fact that the interurban freight-car greatly relieves the congestion of busy streets, since it furnishes a more practical means of handling traffic that must necessarily be thereon. Between the shipper or the consignee of freight and the railroad terminal there is distance, and this implies traffic by wagon. It would involve a shameful economic waste, as well as a decided prejudice to the city, for a railroad company, of any kind, to condemn or acquire a private right of way to a central terminal, although it is evident that the location of a more remote terminal would involve a greater amount of teaming upon the streets. As the use of the interurban ear is reasonably consistent with other street uses, it is practicable to use the public ways as a means whereby such cars may reach conveniently located terminals—-in fact, it is the only means—and, figuring that the average haul would be least from a station in the exact business center of the city, it would seem to be fair to assiuue that, as between such a location and one more remote, for every block that an interurban car, carrying the equivalent of twenty wagon loads of local freight, moves, it takes off of the streets the burden of twenty wagons traveling the same distance. As this freight must be upon the streets in any event, and as it may be moved *624thereon with perhaps not more than one-twentieth of the disturbance to the public that the required number of wagons would occasion, it is plain that, so far from such ears increasing the burden of the streets—regarded collectively—they could not, in the nature of things, handle enough freight, local or otherwise, to equal the burden of additional teaming which terminals comparatively remote from the business center would occasion. It is therefore plain that while the use of the streets by interurban cars creates additional traffic on some streets, yet it greatly relieves other streets. When once a reason, founded in the local public interest, is found for admitting the interurban freight-car to the use of a street in reaching its terminal, there is, within the authorities generally, no difficulty in affirming the right to burden other streets with such cars, for the advantage is local, and it is simply a question of the power to redistribute traffic, of the authority to burden some streets with additional traffic to secure relief to congested streets in the central part of the city. As an abstract proposition, no one would doubt the existence of such a power, and I can perceive no objection to it in the concrete, since the use is not new, but is merely the ancient one of travel, by an improved means, consistent with general street uses. As has been frequently said, the easement of travel upon an urban way is very comprehensive, and as long as the use is within the assumed purposes of the appropriation, and reasonably consistent with other street uses, I do not think that the abutter can in most circumstances have ground of complaint.
As to the allegation that the ears of said companies do not stop to receive and discharge passengers between their terminal and the city limits, I have to say that, in view of the legislative history of such corporations, as well as the general nature of their vehicles and .traffic, it must be presumed that it was never intended by the legislature that, when they elected to use an urban way longitudinally, it should *625be without full obligation to be under the regulation of local laws to compel them to furnish needed service upon the street. In other words, I attempt to judge of this class of corporations by what they were designed in law to be, and by what they can by law be required to do. It is only in this manner that we can perceive their relation to the urban way. The question of appropriation cannot depend upon the existence of a local ordinance, or upon whether the company voluntarily makes necessary stops, for conditions in these respects may frequently change—they may have changed many times since this suit was brought— and the question must be determined by the fundamental relation of such lines to urban ways. If they are to be regarded by the law wholly as thoroughfares, it is doubtful whether it would be competent for even the police power of the State to compel them to serve local uses, except to the extent that steam railroads must do so. It is true that in that event the abutter might urge his claim of compensation with more reason, but I am unwilling to admit that these corporations, which owe their existence to the street railroad act, can be permitted to occupy the streets of our cities without being liable to have their lines made ancillary to street travel. If such lines are thoroughfares pure and simple, then they have acquired rights in our city streets under false pretenses, and municipalities, being unable to regulate them as conveniences upon the street, must expect to see the camel’s body follow the head into the tent. I take no such view of the relation of these lines to urban ways. They have come in as operating street-cars carrying passengers and freight, and are liable to be regulated by local ordinances, so that they shall be compelled to receive and discharge persons and property along the street to the full extent that may be necessary to make them efficiently discharge their duties as carriers upon the public ways. See Indiana R. Co. v. Calvert (1907), 168 Ind. 321.
*626As it is not to be expected that the loca-l authorities will fail, in the exercise of their police power over the streets, to see to it that adequate service is rendered by corporations which use the streets by a method which is but ancillary to the ordinary uses of public ways, I am of the opinion that the running of separate interurban cars upon a city street is not—at least under ordinary circumstances as to traffic—^an additional burden. Beasoning from the postulate that the highways of the State belong to the people at large, it is not controlling that an interurban line is not a purely local institution. The cars of such' a road, when operated in a city, do not materially interfere with the abutter, nor are they antagonistic to the rights of persons upon the street; and as they materially augment the convenience of the public—as distinguished from the carrier —which possesses the easement of travel thereon, such a line should be particularly distinguished from that of a steam railroad, the presence of which upon a city street is for the sole convenience of the carrier, besides being largely subversive of the travel thereon, and, for reasons which have often been pointed out, extraordinarily burdensome to the abutter.
With scarcely an exception, it is held by the courts of the -various states that a local, surface, electric railroad is not an additional burden. Note to Austin v. Detroit, etc., Railway (1903), 2 Am. and Eng. Ann. Cas. 530, 535; note to Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 106 Am. St. 222, 232, 244. With the fact admitted, that the streets of the State belong to the whole people, it seems to me that it must also be held that an interurban line is not per se an additional burden, since it is in aid of 'what is proper street travel and traffic. There is no substantial difference in burden between the local and the interurban car, and I perceive no ground in principle for a distinction between them.
As long ago as the year 1894, this court held, in Chicago, *627etc., R. Co. v. Whiting, etc., St. R. Co. (1894), 139 Ind. 297, 26 L. R. A. 337, 47 Am. St. 264, that a company operating an electric line some thirteen miles long, extending on streets and highways from the city of Hammond, and through the municipalities of East Chicago and Whiting, to a point on the Illinois state line, was not an additional burden to the interest of the abutter upon a city street. The editor of the Lawyers Reports Annotated observes, in reporting that ease, that although it seems to be one of first impression, yet it- is upon a very important question of railroad law. There are cases which hold that an electric line upon a rural highway is not an additional burden. Ranken v. St. Louis, etc., R. Co. (1899), 98 Fed. 479; Cincinnati, etc., St. R. Co. v. Village of Cumminsville (1863), 14 Ohio St. 523; Georgetown, etc., Traction Co. v. Mulholland (1903), (Ky.), 76 S. W. 148; Austin v. Detroit, etc., Railway (1903), 134 Mich. 149, 96 N. W. 35, 2 Am. and Eng. Ann. Cas. 530. In Mordhurst v. Ft. Wayne, etc., Traction Co. (1904), 163 Ind. 268, 66 L. R. A. 105, 106 Am. St. 222, the company was engaged in carrying passengers, mail and light express matter in interurban cars, and, after a careful consideration of the question in all of its bearings, it was held that the running of such cars on a city street, in accordance with the municipal regulations set out in the opinion, did not constitute a burden upon the fee.
It is a fact of general knowledge that millions of dollars have been invested in the development of the interurban business since the case of Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, was decided, and that no inconsiderable portion of that capital has been invested since the decision in the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra. The question therefore arises whether, as between the extremes in other states, we should not endeavor to grasp the principle upon which our own decisions rest, and, in the absence of controlling reason to the contrary, hold fast to it as a rule of property?
*628I recognize the fact that upon any question of general application the Constitution should not be subordinated to court-made law; but, in a matter of this kind, the meaning of the Constitution is not involved. The question is only as to the application of its undoubted meaning to a certain class of cases. Even upon a question so important as to the authority of congress to delegate its legislative power, as it had attempted to do by virtue of a certain statute relative to the sale of mineral lands, we find the Supreme Court of the United States saying: “Whatever doubts might exist if this matter were wholly. res integra, we have no hesitation in holding that the question must be considered as settled by prior adjudications and cannot now be reopened.” Butte City Water Co. v. Baker (1904), 196 U. S. 119, 49 L. Ed. 409, 25 Sup. Ct. 211.
It is safe to say that, with reference to the question whether cars operated on rails in a city street constitute an additional burden, there is no class.of cases in which the courts of the states have differed so widely. Judge Redfield, writing many years ago, refers to what he terms the singular vacillation of the courts on the subject, and, after speaking of the first disposition to treat steam railways merely as improved highways, and of the fact that in the process of retrocession there was an unnatural impulse to hold that all railways must equally be a burden upon the fee, he adds: “Whether the proper distinction between street railways and those occupying a distinct route and transacting mainly a distinct business will ever be clearly defined is'perhaps questionable.” 1 Redfield, Railways (6th ed. by Kinney), #312. It must therefore be evident that, unless there be some yielding of individual judgment, on a matter of this kind, to what has been decided, we will have a condition of instability in the court most greatly to be deplored. It is better for the public interest that the law upon a point of this character should be settled wrong than that it should come to be regarded as eternally unset-*629tied. One can but perceive the note of impatience with which the court, in Minnesota Mining Co. v. National Mining Co. (1865), 3 Wall. 332, 18 L. Ed. 42, disposed of the attempt again to draw into -review a question which the court regarded its own adjudications as settling. “Where questions arise,” said the court, “which affect titles to land, it is of great importance to the public that when they are once decided they should no longer be considered open. Such decisions become rules of property, and many titles may be injuriously affected by their change. Legislatures may alter or change their laws,. without injury, as they affect the future only; but where courts vacillate and overrule their own decisions on the construction of statutes affecting the title to real property, their decisions are retrospective and may affect titles purchased on the faith of their stability. Doubtful questions on subjects of this nature, when once decided, should be considered no longer doubtful or subject to change. Parties should not be encouraged to speculate on a change of the law when the administrators of it are changed. Courts ought not to be compelled to bear the infliction of repeated” arguments by obstinate litigants, challenging -the justice of their well-considered and solemn judgments. ’ ’ See, also, Lindsay v. Lindsay (1874), 47 Ind. 283.
I regard the case of Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra, as going far toward the settlement of the question at bar, and it is absolutely controlled by the case of Mordhurst v. Ft. Wayne, etc., Traction Co., supra. It must be evident, especially in view of what has already been said, that in the ease before us the fact that the use involves the carriage of property—as in the case last cited —affords no just ground for holding that thereby an additional burden is created. Montgomery v. Santa Ana, etc., R. Co. (1894), 104 Cal. 186, 37 Pac. 786, 25 L. R. A. 654, 43 Am. St. 89; Taylor v. Portsmouth, etc., St. Railway (1898), 91 Me. 193, 39 Atl. 560, 64 Am. St. 216; Howe v. *630West End St. R. Co. (1896), 167 Mass. 46, 44 N. E. 386; White v. Blanchard Bros., etc., Co. (1901), 178 Mass. 363, 59 N. E. 1025; State v. Dayton Traction Co. (1899), 18 Ohio C. C. 490; Nichols v. Ann Arbor, etc., St. R. Co. (1891), 87 Mich. 361, 49 N. W. 538, 16 L. R. A. 371; Austin v. Detroit, etc., Railway (1903), 134 Mich. 149, 96 N. W. 35; San Antonio, etc., St. R. Co. v. Limburger (1895), 88 Tex. 79, 30 S. W. 533, 53 Am. St. 730; Nellis, Street Surface Railroads, p. 5. And see DeGrauw v. Long Island, etc., R. Co. (1899), 43 Hun, App. Div., 502, 60 N. Y. Supp. 163. While it was in the transportation of passengers that the utility of street-cars was first perceived, so that we have become accustomed to regard street-cars as a means of conveying passengers, yet the use of such cars for the transportation of property upon the public streets ought not to mislead us as to the underlying principle, for such transportation is a primary use of public ways. I may further add, that the suggestion that the companies are operating commercial railways appears to me as affording no ground in principle for holding that the abutter is entitled to compensation, for all railways,- urban or otherwise, if conducted for private gain, are commercial railways. The use of this term may be justified in referring to ? class of railways w-hieh occupy the street solely fo'r their own convenience; but if an interurban railway is upon the street for the convenience of the public, it will at once be perceived that, so far as its being commercial is concerned, its presence there can be quite as abundantly justified as in the case of an ordinary street railway.
I am not at this time prepared to sanction the process of reasoning in Mr. Chief Justice Hadley’s opinion, by which he reaches the conclusion that interurban companies are limited by their charter in their operation of cars. Before passing upon this .question I should desire to study all cognate statutes and to test every link involved in the reasoning—an opportunity not now afforded me. And I *631may further add that I perceive no necessity for deciding a question of such great importance. There is more of reason for holding that, in view of their organization, when such companies elect to use urban ways, the character of the use compels them to use vehicles which approximate street-cars, because they are then indeed cars of the street; but, without expressing any ultimate opinion upon the subject suggested, I prefer to rest my opinion upon the ground that it is not shown by the complaint that these companies have extraordinary rights on the street.
If it appeared that said companies, acting within their charter and contract rights, were engaged in the operation of long trains of cars upon a city street, it would have to be affirmed that such use constituted an additional burden upon the fee. And here I may say that, in my judgment, mere acts of aggression on the part of such a company are not to be treated as amounting to an appropriation, but as wrongful acts for which another remedy should be sought. In other words, an appropriation must be by an intra vires act; an unlawful possession of a public street would in most instances be a nuisance.
At the time these interurban companies entered the city of Indianapolis, the municipality enjoyed a grant of exclusive power over the streets, and no company could enter without authority therefrom. §§3830, 5458d, 5458k Burns 1901, Acts 1891, p. 137, §59, Acts 1899, p. 260, §§2, 9; Indianapolis Cable St. R. Co. v. Citizens St. R. Co. (1891), 127 Ind. 369, 8 L. R. A. 539; Chicago, etc., R. Co. v. Whiting, etc., St. R. Co., supra; City of Indianapolis v. Navin (1898), 151 Ind. 139, 41 L. R. A. 337; Indiana R. Co. v. Calvert (1907), 168 Ind. 321. Appellant’s complaint alleges that “by the terms” of the contract of said interurban companies there is no limitation upon the number of cars or trains they may run. This, I take it, is not equivalent to an allegation that the contract per-mit-s such companies to run trains. It appears to me that this *632allegation, at the most, can only be taken as a statement of the fact that the expressed “terms” (that being the ordinary meaning of the word) of the contract are silent as to the extent of the right, and from this counsel for appellant argue that the right is unlimited. I do not think that this follows. It was said, in Indianapolis Cable St. R. Co. v. Citizens St. R. Co., supra: “A grant made by the commonwealth, or by a municipal corporation, under authority of the commonwealth, is to be taken most strongly against the grantee, and nothing is to be taken by implication against the public, except what necessarily flows from the nature of the terms of the grant.” See, also, Muncie Nat. Gas Co. v. City of Muncie (1903), 160 Ind. 97, 60 L. R. A. 822; State, ex rel., v. Board, etc. (1906), 166 Ind. 162, and cases cited. It is laid down in Vattel’s rules, which he applies to treaties, statutes and compacts, that “if * * * a manifest equity, or a great common utility requires a restriction, we ought to adhere to the most limited sense which the proper signification can admit, even in an affair that appears favorable in its own nature.” Potter’s Dwarris, Statutes, 131.
A contract is to be construed with reference to the known characteristics of the business to which it relates. Ohio Oil Co. v. Detamore (1905), 165 Ind. 243; Dill v. Fraze (1907), ante, 53. As late as 1905, a former president of the American Institute of Electrical Engineers stated, in an article in the August number of the Century Magazine, p. 512, entitled “The Electric Railway:” “Save on elevated and underground roads of short length, it has been essentially a service of single ears at frequent intervals and convenient stops.” If this may be assumed to be a fact, it may well be questioned whether such companies on entering a city should not ordinarily, as a matter of construction, be held to the requirement that they carry on their traffic in single units. In any event, without clear authority, they *633cannot encumber the streets with long trains, and upon an indefinite grant they should be held down to a means of conducting their business not substantially more burdensome than street-cars. DeGrauw v. Long Island, etc., R. Co., supra; People, ex rel., v. Newton (1889), 112 N. Y. 396, 19 N. E. 831, 3 L. R. A. 174; City of Aurora v. Elgin, etc., Traction Co. (1907), 227 Ill. 485, 81 N. E. 544; 1 Morawetz, Priv. Corp. (2d ed.), §§316, 323; 4 Thompson, Corporations, §5345; Nellis, Street'Surface Railroads, p. 5. The law will not unnecessarily construe a grant to a corporation by the public as carrying with it an extraordinary and oppressive authority. Northwestern Fertilizing Co. v. Hyde Park (1878), 97 U. S. 659, 666, 24 L. Ed. 1036.
Being compelled to carry freight in other than long trains, it appears to me that the field of interurban endeavor in the carriage of property, owing to steam railroad competition, must be limited to the carriage of light freight for comparatively short distances. It may be assumed that the city, acting under its police power, will see to it that noisome things and substances are not carried. And it should, perhaps, be presumed that,. if business develops so as to. require it, the city, acting under such power, will require the traffic to be divided with other streets. Baltimore v. Baltimore Trust, etc., R. Co. (1897), 166 U. S. 673, 41 L. Ed. 1160, 17 Sup. Ct. 696. And see Indiana R. Co. v. Calvert, supra, and eases cited. I am not prepared to say, in view of the allegations of appellant’s complaint, that the development of traffic by interurban cars might not at some time be such that it would at least interfere with appellant’s appurtenant rights; but especially in the absence of averment showing a right in appellees which, as at present exercised, is unduly burdensome to the abutter, I do not think that the present is a time to have a reckoning with the future in respect to the matters which appellant fears.
*6343. *633So far as special damages are concerned, based on the im*634proper operation of said roads, I concur in the general opinion of my associates that a cause of action is stated, and for that reason I vote for a reversal. In view of appellant’s conveyance, the question of injunction is a moot question.