The complaint alleges the defendant's unlawful entry upon the plaintiff's land; the demurrer admits this. While we take judicial notice of the legislative authority of the defendant to operate an electric railway for the carriage of persons and property, we cannot take judicial notice of the authority of the defendant to locate its tracks on West Main Street in front of the plaintiff's premises. *Page 416 Before we can know this, the facts surrounding the location, and the defendant's compliance with the statutory prerequisites, must appear of record. "But the construction of any kind of railway in a highway, the soil of which belongs in fee to the adjoining proprietors, is a trespass upon their land, unless it has been duly authorized by law." Canastota Knife Co. v. NewingtonTramway Co., 69 Conn. 146, 160, 36 A. 1107.
Since the decision of this question is fatal to the demurrer, it is, in my opinion, unnecessary to discuss or decide the question of additional servitude. A subject of such importance ought not to be disposed of without fullest argument, upon issues joined raising the question definitely and necessarily. I cannot but regard the opinion upon this subject as obiter. The question of additional servitude was no more material to the proper decision of the Canastota Knife Co. case than is that question material to the proper decision of this case. But we have in other cases approved the doctrine of that case, and it must be accepted as settled. Inasmuch as the opinion in this case discusses, and purports to decide, the question of additional servitude in its relation to the facts of this case, I will briefly express my view.
The fundamental purpose of a street railway is the accommodation of street travel. It is a local convenience for local travel. "A street railway without a street to run on, and to serve and accommodate as it runs, would be an anomaly." BALDWIN, J., in CanastotaKnife Co. v. Newington Tramway Co., 69 Conn. 146,154, 36 A. 1107. For this reason we have treated the street railway as an improved method of using the street. Counsel for the street railway in the CanastotaKnife Co. case well said: "In a word, the street railway is for the sole purpose of carrying on the kind of public travel for which the highway was made, and the steam road is not." *Page 417
In the earlier days of the electric street-railway it was generally held that it was one for the transportation of passengers and not of goods. Elliott on Roads (1st Ed.) p. 457.
At the beginning we did not contemplate a street railway operated as a common carrier of property, nor anticipate the changes and development in its business, more and more approximating it in construction, as well as in operation, to the steam road.
We have held that the "location of an ordinary steam railroad upon a highway imposes an additional burden upon the soil, for which the owner of the fee is entitled to demand compensation"; and that the location of an electric railway in a highway does not impose such servitude upon the soil of the owner of the fee of the highway unless "either the mode of construction or of operation be such as to make it a substantial impediment to public travel or a proximate cause of special damage, of a new description, to the owner of the soil."Canastota Knife Co. v. Newington Tramway Co.,69 Conn. 146, 150, 159, 36 A. 1107.
It may be that in view of our former decisions, whether the carriage of goods by a street railway is an additional servitude depends upon whether it is serving an ordinary highway use, and must be determined in each case by its own facts. In the application of such a test there may well be left out of consideration the traffic of goods which is the mere incident of ordinary street-car passenger traffic, included in which is the hand baggage of the passenger, the light package delivered occasionally from the car platform, the mail-bag, and the newspaper bundle. Logically, under this test, the carrying of local freight and express which would otherwise be carried in vehicles over the highway, may be justified as ordinary highway use. But in practice it will be found impracticable to deliver freight or express *Page 418 from door to door along a street without impairing the use of the street for a highway for the public and the adjoining owners.
No attempt to use a street railway for the general carriage of local freight or express has, so far as we are aware, ever been made in Connecticut. To do so would require additional and frequent switches and turnouts, convert the highway along its entire length into a freight yard, cause long stops to be made which would seriously inconvenience, if not destroy, passenger traffic, and congest the streets with vehicles loading or unloading goods. Local passenger travel with frequent service and a local freight or express service cannot be conducted on the same tracks. The operation of a street railway in this manner must necessarily produce annoyance and inconvenience alike to the owners of the fee of the highway as to the public. 1 Lewis on Eminent Domain (3d Ed.) § 166.
It is difficult to conceive of a local traffic of this character which is not, of necessity, an additional servitude upon the highway. "There is no reason," as Lewis says, "why the principle of the street railway cases should be extended to include a traffic so entirely different in its nature and involving such a different use of the street." 1 Lewis on Eminent Domain (3d Ed.) § 166, p. 293.
In every case where the specific facts are either alleged or proven, the conclusion, whether these facts constitute an additional servitude, is a question of law. This case does not confine its allegations to a general complaint of the carriage of goods, and hence this question was not necessary to adjudicate in this case. The complaint specifically alleges that the defendant has entered upon the plaintiff's land for the purpose of operating its railway over the highway of which the plaintiff has the fee, "as a common carrier of property *Page 419 by means of cars which are solely designed for and which carry property exclusively and which do not stop as they run, to take on and discharge said property and have a station in the Town of Plainville and the Town of New Britain, at which they stop to take on and discharge said property."
The demurrer thus admits that (1) the cars carry property exclusively; (2) that they do not stop between the termini named to take on and discharge property; and (3) that they have two stations in the places named where they take on and discharge property.
This traffic is not incident to the passenger traffic. It is not for the mere accommodation of its passengers. It is purely a commercial traffic. Local traffic along the route is not served, nor is this intended. The cars maintain a through freight or express traffic between the points named. The street railway thus serves the same purpose as the steam road between these points. Its cars are designed to carry property exclusively, as do the steam road cars. It maintains freight stations at the termini named as does the steam road. It conveys property which formerly was conveyed by the steam road and in part by other vehicles. It diverts a part of the traffic of the steam road to the highway. It does not differ materially in its carriage of goods from the steam road save in degree, and in that the one operates on its own private way, and the other mainly on the public highway. Through freight or express traffic is the business of the "commercial railroad," as steam roads are called in the law. 3 Dillon on Municipal Corporations (5th Ed.) §§ 1257, 1258.
"If the interurban railroad carries freight as well as passengers, the analogy to the steam railroad is complete. Most of the freight so carried is such as would otherwise seek transportation on the steam railroad rather than in drays and wagons on the streets and *Page 420 1 Lewis on Eminent Domain (3d Ed.) § 165, p. 287.
The diversion of this through freight or express business to this highway does not aid or facilitate traffic on the street, but adds to it, interferes with its ordinary use and increases the burden upon the street.
The majority of the authorities support this position, among which are: Aurora v. Elgin, A. S. Traction Co.,227 Ill. 485, 496, 81 N.E. 544; Spalding v. Macomb W. I. Ry. Co., 225 Ill. 585, 590, 80 N.E. 327; Wilder v.Aurora, D. R. E. Traction Co., 216 Ill. 493, 528,75 N.E. 194; Diebold v. Kentucky Traction Co., 117 Ky. 146,149, 77 S.W. 674; Massachusetts L. T. Co. v.Hamilton, 88 F. 588, 591; Abbott v. MilwaukeeLight, H. T. Co., 126 Wis. 634, 637, 106 N.W. 523;Younkin v. Milwaukee Light, H. T. Co., 120 Wis. 477,98 N.W. 215; Chicago N.W. Ry. Co. v. Milwaukee,R. K. E. Ry. Co., 95 Wis. 561, 571, 70 N.W. 678; Note to Abbott v. Milwaukee L., H. T. Co., 4 St. Ry. Rep. 1077; Schaaf v. Cleveland, M. S. Ry. Co.,66 Ohio St. 215, 229, 64 N.E. 145.
Under these allegations of the complaint, the plaintiff's land has been subjected to a servitude other than that incident to ordinary travel, and he is entitled to compensation therefor.
The demurrer should be overruled. *Page 421