We find many, if not most of the rules of law affecting the property rights of street railway companies, well and concisely stated with cogent reasons to support them, in a report made to the Legislature of Massachusetts in January, 1875, and published by Judge REDFIELD as embodying the substance of his views upon that subject in 1 *Page 332 Redfield on Railways (p. 317 in notes). It was conceded in that report that the Legislature, after creating such a franchise, could not, by a direct act of legislation, either repeal the charter or take away the right of compensation by way of tolls or fare, and the same would be true as to corporations as well as individuals in this State, but for the express reservation of power to repeal, alter, or modify the charter of any corporation, whether created by special act, or organized under the general laws of the State regulating the formation of railroad corporations. (1 R.S., 600, § 8; Const., art. 8, §§ 1, 3; Laws of 1850, chap. 140, § 48.) This rule, as laid down (supra), is equally applicable whether the grant of the franchise is to individuals or a corporation. The right is a property right, subject to condemnation for public use. Upon the precise question made here, the rule is thus stated: "But they (the Legislature) may nevertheless allow other persons, either natural or corporate, to do a similar business in the same streets; or to do it upon the tracks of an existing company by making compensation to the other company, whenever, in their judgment, the public good requires it." The State, in the exercise of this power, merely asserts the right reserved to resume possession of any property necessary for public use, upon making compensation, and this compensation, when ascertained, must be regarded as an equivalent for the use, and an indemnity to the existing company for the damages sustained by loss of traffic, as well as the occupation and use of its property. No other rule would be consistent with the conceded rights of the State and the property rights of the citizen. This conclusion of the report is well supported by argument, and stands upon sound reason. It is also in accord with the reported decisions of our own courts, which clearly recognize this power in the Legislature, as well as that other rule which is contested by the learned counsel for the appellant, that the State, in the exercise of the right of eminent domain, or a corporation having the delegated power, is not bound to take the entire estate, but may take, and strictly should take, *Page 333 only such an interest and right as is necessary to be acquired to accomplish the public purpose in view. An easement merely, or a partial interest, or the right to a temporary or permanent use of property, as well as the entire estate and interest may thus be acquired as the public service may demand, and so long as the owner is compensated for the damages sustained he has no cause of complaint, but he might, if more property, or a larger estate or interest was taken than was required for public use, contend that his rights of property had been illegally invaded. (People v.Kerr, 27 N.Y., 188; Albany Northern R.R. Co. v. Brownell, 24 id., 349; Heard v. Brooklyn, 60 id., 242; In re RochesterWater Commissioners, 66 id., 413; West River Bridge Co. v.Dix, 6 How. [U.S.], R. 535.)
The law permitting the defendants to make use of the tracks of the plaintiff, upon making compensation, was constitutional, and this is the only question made by the record before us.
It was alleged in the complaint, as an additional ground for relief, that no proceedings had been taken for appraising the damages of the plaintiff. But the fact is found that proceedings had been initiated, and were at the time of the trial pending for that purpose.
It was not claimed in the complaint, or upon the trial, that ample provision was not made in the act of April, 1860, under which the defendants claim to enter upon or use the track of the plaintiff, for compensation to the plaintiff. But if made, it would not have availed. Express provision is made for the ascertainment of the damages, and this, with the payment of the amount which should be awarded, was by necessary implication, if not by express terms of the general railroad law of 1850 (supra), incorporated by reference into the act of 1860, made a condition precedent to their right of occupation and user.
The judgment must be affirmed.
All concur.
Judgment affirmed. *Page 334