The opinion of the Court was delivered by
McEnery, J.This is a suit to recover from the defendant company the value of the use of the street railroad tracks of the plaintif, on Canal street, from its terminus, on Canal street, near the Levee, up the north side of Canal street to Carondelet, and from the intersection of St. Charles street, both the Canal street tracks on the south side of Canal street to the terminus, near the Levee — total length of track, 3900 feet.
Compensation is claimed from September 8, 1881, the date the defendant company commenced using plaintiff’s track, at the rate of four cents traveled by each car of the defendant company, amounting to $15,040 50.
The plaintiff alleges that no other company has any right to use its track without its consent, for any purpose of traffic or carriage of passengers.
The defendant company filed an exception, which was referred to the merits, and then answered, denying that plaintiff had a right to demand pay for the use of its road, as demanded, and that if they had any right to demand compensation for the use of its road, four cents a mile for each car was too much, and claim that the. ordinances of the City of New Orleans point out the manner in which compensation for the use of the road must be estimated and regulated.
The defendant took several bills of exception to the introduction of testimony— some seven in number. They all go to the effect of the testimony, and it was properly admitted.
There is but one question to determine in the case:
Was the defendant company authorized by legislative provisions to use the track of the plaintiff, and in granting the permission was the mode' of compensation regulated ?
Complete authority has been granted by the General Assembly to the City of New Orleans over the streets. The City of New Orleans has *564paramount control and regulation of them. The operation of a street railway is the exorcise of the public right of way over the streets. The street belongs to the public. The proprietary right which a street railway has in its track is therefore subject to the right of eminent domain over its streets vested in the city.
The City Council may, in the exercise of the power delegated to the corporation in the control and regulation of the streets, grant to one company the right of way over them, and afterwards grant the right of way over a part of the same railway to another company.
The City Council is without power to grant the exclusive use of a street, which belongs to the public, to a railway company. It cannot thus deprive succeeding councils of the power of performing the duty of regulating the streets as may seem to them to be for the best interest of the jrablic.
There can be no doubt but that the Crescent City Railroad Company had the right to construct and operate its railway, and a part of the line covered a part of the plaintiff’s track, on Canal street, and the intersection at St. Charles street, as described in the petition. And there can be no doubt but that the defendant company had been granted the use of the plaintiff’s railway, and that with the consent of plaintiff it peaceably put its cars on plaintiff’s track and has kept them running on a part of it since that time.
Before the operation of defendant’s street railway the City Council, in 1868, passed the following ordinance:
“ Should the City of New Orleans, at any time during the existence of the contract of 6th of May, 1867, between it and the Canal and Claiborne street Railroad Company, enter into any arrangements with other companies whereby said road on Oanal street, from Claiborne street to Front Levee street; and from Front Levee street to Claiborne street, or any part thereof , may be granted, the City of New Orleans, or the road or roads to which the privilege may be granted, shall reimburse to the Canal and Claiborne Street Railroad Company, a fair cmd reasonable proportion of the value of the portion or portions of the road to be used; and should said in’oportion not be agreed upon between said Canal and Claiborne Street Railroad Company and the City of New Orleans, or the said road or roads, two disinterested persons shall be appointed, one by the City of New Orleans or the road or roads, as the case may be, and the other by the Canal and Claiborne Street Railroad Company; and in the event of a disagreement as to the said proportion to be paid, between said persons thus appointed, a third person or umpire shall be appointed by the judge of one of the district courts of the Parish of Orleans, and *565tlie decision thereby had, shall be final and binding.” Ordinance No. 1201 N. S., page 427, Jewell’s Dig., Article 151.
In this ordinance the City Council has not only granted the privilege to another company, which it may authorize to operate a street railway to use the track already constructed, but it has pointed out, and regulated, the manner in which compensation must be made.
Tiie city liad the undoubted power to grant the privilege of the right of way and regulate the manner in which one street railway using the track of another should make compensation. 28 Am., L. Reg. 765.
The plaintiff company has failed to follow the requirements of the ordinance.
Judgment affirmed.