Concurring Opinion.
Myers, J.I concur in the conclusion as to the right of appellee traction company to lay the track in question, but base my concurrence upon the proposition that there is no power in cities or towns to subvert the use of streets so as to render them ineffective for the purpose of their creation, and burden them in such manner as to constitute additional servitudes upon them.
Primarily, street railways were designed for local passenger transportation upon streets, to relieve congested conditions, to provide for transportation of the masses, and for rapid transportation for considerable distances, and the *180engrafting of interurban legislation upon the street railway acts evinces the primary design of these lines of communication to be for passenger travel, but a legislative purpose seems manifest in the more recent enactments upon the subject, to enlarge the primary purpose so as to include both passenger communication between independent cities and towns and freight traffic.
It will not do to attempt a distinction between steam railroads and interurban roads by the term “commercial railroads,” for that is a distinction in degree only; one is relatively as much a commercial railroad as the other. We must look for some other distinction than a classification as ‘ ‘ commercial,” and it is found in the character of the use, and therein lies the distinction, as well as the reason for it, both as to the subjects of transportation over streets of cities and towns, which may be regulated under the police power, the same as in case of ordinary railways owning a right of way, and as to the length of train, and the character and frequency of train movements, which are subject to regulation under the police power; and, irrespective of the character of the grant, if the use becomes obstructive or subversive of the primary, ordinary, reasonable or necessary use of streets as such, it would be unauthorized. Grand Trunk R. Co. v. City of South Bend (1910), post, 203. The use should be restricted to carriage over streets of persons and such property as is ordinarily or usually carried over streets.
The grant must be made in discretion, or curtailed in enjoyment. Mayor, etc., v. Baltimore Trust, etc., Co. (1897), 166 U. S. 673, 17 Sup. Ct. 696, 41 L. Ed. 1160; Dooly Block v. Salt Lake, etc., Transit Co. (1893), 9 Utah 31, 33 Pac. 229, 24 L. R. A. 610; Watson v. Robberson Ave. R. Co. (1897), 69 Mo. App. 548; Lockwood v. Wabash R. Co. (1894), 122 Mo. 86, 26 S. W. 698, 24 L. R. A. 516, 43 Am. St. 547; Delaware, etc., R. Co. v. City of Buffalo (1899), 158 N. Y. 266, 53 N. E. 44.