ances used in the propulsion or conveyance of persons and things over the highways. By some it is limited to transportation of persons and things tangible, while others extend it to communications which are transmitted unseen by electric vibrations. Some treat it as an additional burden when the fee of the highway is in the adjoining owner, and ōthers do not regard it to be such, whether the fee is in the public or the adjoining owner. In still others a distinction is made between highways in the country and streets in the city, holding that city streets have always been designed and used for purposes not appropriate to rural highways. The purpose of the highway is the controlling factor. It is variously defined or held to be for passage, travel, traffic, transportation, transmission, and communication. It is a thoroughfare by which people in different places may reach and communicate with each other. The use is not to be measured by the means employed by our ancestors, nor by the conditions which existed when highways were first devised. The design of a highway is broad and elastic enough to include the newest and best facilities of travel and communication which the genius of man can invent and supply. This theory is well brought out in Cater v. Northwestern Telephone Exchange Co., 60 Minn. 539, 63 N. W. 111, 28 L. R. A. 310, 51 Am, St. Rep. 543. It was there said: "If there is any one fact established in the history of society and the law itself, it is that the mode of exercising this easement is expansive, developing and growing as civilization advances. In the most primitive state of society the conception of a highway was merely a footpath; in a slightly more advanced state it included the idea of a way for pack animals; and next a way for vehicles drawn by animals-constituting, respectively, the iter, the actus, and the via of the Romans. And thus the methods of using public highways expanded with the growth of civilization until to-day our urban highways are developed to a variety of uses not known in former times, and never dreamed of by the owners of the soil when the public easement was acquired. 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 afterward be discovered and developed in aid of the general purpose for which highways are designed; and it is not material that these new and improved methods of use were not contemplated by the owner of the land when the easement was acquired, and are more onerous to him than those then in use." That court held that the construction and maintenance of a telephone line on a country highway did not impose an additional servitude upon it, but was to be regarded more as a newly discovered method of using an old public easement. In Julia Building Association v. The Bell Telephone Company, 88 Mo. 258, 57 Am. Rep. 398, the question was up as to whether the erection and maintenance of a telephone line along a street of St. Louis subjected it to a new servitude inconsistent with the purpose of a street, and for which an abutting owner might claim compensation. The court ruled that it was not an additional burden, and in doing so held that streets were designed, not only for travel, but to facilitate communications between the citizens of the city, and that, when the public acquired the right to a street by any method, it could be appropriated, not only for such uses as were common at the time, but to all such new uses as advanced civilization might suggest or the public good require; and, as showing that the telephone would relieve, rather than add to, the servitude of the street, it was said: "If a citizen living or doing business on one end of Sixth street wishes to communicate with a citizen living or doing business at the other end, or at any intermediate point, he is entitled to use the street, either on foot or horseback or in a carriage or other vehicle, in bearing his message. The defendants in this case propose to use the street by making the telephone poles and wires the messenger to bear such communications instantly and with more dispatch than any of the above methods, or any other known method of bearing oral communications. Not only would such communications be borne with more dispatch, but, to the extent of the number of communications daily transmitted by it, the street would be relieved of that number of footmen, horsemen, or carriages. If a thousand messages were daily transmitted by means of telephone poles, wires, and other appliances used in telephoning, the streets, through, these means, would serve the same purpose which would otherwise require its use either by a thousand footmen, horsemen, or carriages to effectuate the same purpose. In this view of it, the erection of telephone poles and wires for transmission of oral messages, so far from imposing a new and additional servitude, would, to the extent of each message transmitted, relieve the street of a servitude or use by a footman, horseman, or carriage." A leading case on this question was determined by the Supreme Court of Massachusetts in 1883. Under a statute a telegraph company was about to build a line in the streets of Brookline, and adjacent owners sought to enjoin the authorities from granting the privilege to the company, claiming that the stat ute was unconstitutional because it did not provide for compensation to the owner of the fee in the highway. The court decided that the transmission of intelligence by electricity. was a business of a public character, to be exercised under public control; that when land is once taken for a public use, and is afterwards applied to another similar public use, no new claim for compensation can be sustained by the owner of the fee; that the laud taken or granted for highways, for travel on foot, on horseback, or with vehicle, conveying either persons or property and transmitting intelligence, is an easement which should be liberally viewed, so as to secure to the public the full enjoyment of such use, and that the transmission of information by electricity was a use similar, if not identical, with the purpose for which highways were established, and therefore no additional servitude was imposed, nor other compensation required. Pierce v. Drew, 136 Mass. 75, 49 Am. Rep. 7. The Supreme Court of Michigan had before it the specific question whether telegraph poles on a rural highway constituted an additional servitude for which the owners of the fee must be compensated. In answer to the question the court said: "Public highways are under legislative control. They are for use of the public in general, for passage and traffic without distinction. The restrictions upon the use are only such as are calculated to secure to the general public the largest practical benefit from the enjoyment of the easement. When the highway is not restricted in its dedication to some particular mode of use, it is open to all suitable methods. When these lands were taken or granted for public highways, they were not taken or granted for such use only as might then be expected to be made of them by the common methods of travel then known, or for the transmission of intelligence by the only methods then in use, but for such methods as the improvements of the country or the discoveries of future times might demand." The court therefore held that the telegraph was a highway use, and did not impose an additional burden upon the land occupied. People v. Eaton, 100 Mich. 208, 59 N. W. 145, 24 L. R. A. 721. In Kirby v. Citizens' Telegraph Co. (S. D.) 97 N. W. 3, in deciding that a telephone system on the streets of a city was not an additional servitude, the court remarked: "The streets of a city or incorporated town are in contemplation of law dedicated, appropriated, or condemned for all proper street uses, and, when a street is used for any proper street purpose by permission of the city authorities, such use does not constitute an additional servitude, though such use may not have been known when the streets were dedicated, appropriated, or condemned for street purposes, and the abutting fee owner is not entitled to compensation for any damages he may sustain by reason of such use. The streets of a city are now used for many purposes unknown in former times. The telephone is but a step in advance of former methods of conveying intelligence and information, and is a substitute for the messenger and carrier of former times." Other cases cited as sustaining the same view are Magee v. Overshiner, 150 Ind. 127, 49 N. E. 951, 40 L. R. A. 370, 65 Am. St. Rep. 358; Coburn. Neal Telephone Co., 156 Ind. 90, 59 N. E. 324; Hershfield v. Rocky Mountain Telephone Co., 12 Mont. 102, 29 Pac. 883; People v. Thompson, 65 How. Prac. 407; Palmer v. Larchmont Electric Co., 158 N. Y. 231, 52 N. E. 1092, 43 L. R. A. 672; Hewett v. Western Union Tel. Co., 4 Mackey (D. C.) 424; Lockhart v. Craig Street Rail way Co., 139 Pa. 419, 21 Atl. 26; Maxwell v. Telephone Co., 41 S. E. (W. Va.) 125; Wilmot Castle v. Bell Telephone Co. (Sup.) 63 N..Y. Supp. 482; Keasbey on Electric Wires, §§ 102, 103. The telegraph used in the operation of a railroad is held to be a railway use, and not an added servitude upon a railroad right of way. In a certain sense the telephone is an adjunct of the highway, as the telegraph is of, the railway. It serves to direct travel and transportation over the highway, it keeps persons using the highway and those in authority advised of its condition, and, if necessary, they can provide for repairs, and it enables those who have sent teams and vehicles over it to learn the progress that has been made in the journey. The messages transmitted over the line are a substitute for the messengers who formerly passed over the highway, and thus to a great extent relieve it from the burdens and wear of travel. No modern invention has contributed more to commercial and social intercourse than the telephone. It is an appliance of great public utility, and is coming into general use in the country as well as in the city. Indeed, it seems to serve a more beneficial purpose and is a greater convenience to rural residents widely distant from business centers and from each other than it is to residents in cities. The question, however, is not determinable by the differences between urban and suburban conveniences and necessities, nor by the fact that the fee may be in the adjoining landowner in one instance and in the public in the other. It must be decided by the scope and purposes of the highway, and whether, in country or city, it is a means of travel and transportation; a medium of transmission - of intercommunication - be tween the people located in different places. We are aware that there are authorities holding that the telephone is not one of the purposes contemplated when the highway was established; that it is not a highway purpose; and, therefore, that it is an additional burden upon the highway, for which compensation must be made to the adjacent owners. We think, however, that the more liberal view should be taken, which is in keeping with the progress of the times, holding the easement to include the modern methods of travel and communication. The court ruled correctly in refusing the injunction, and therefore its judgment will be affirmed. SMITH, GREENE, and ATKINSON, JJ., concurring. JOHNSTON, C. J. (dissenting). I am unable to concar in the conclusion that the construction and maintenance of a telephone line on a rural highway is not an additional servitude, and am compelled to adhere to the view stated in the first opinion by Justice Pollock: "That a line of telephone, while a means of communication, is not a method of travel, and is not such a use of the property as was in contemplation of law acquired by the public when the highway was laid out; and that the landowner must, under the provisions of our Constitution and by natural right, be held to be entitled to compensation for this new burden cast on his property." It is a use which was only not contemplated when the highway was established, but is one wholly inconsistent with the purposes of a country road. In Kansas, and in nearly all of the states, a well-recognized distinction exists between the uses to which a ́rural highway and a city street may be devoted. The density of population, and the fact that nearly all of the ground in a city, except the public ways, is covered with permanent structures, requires that streets and alleys shall be used for all public purposes. They are used, not only for travel, but for light and air, and through which to lay pipes to conduct water, gas, and other materials for both public and private consumption. They are also employed for all kinds of traffic and transportation which does not unreasonably interfere with the rights of abutting owners. It is wholly impracticable to provide means for transmission, transportation, and communication in a crowded city except through the streets and alleys, and hence a dedication or appropriation of streets and alleys always contemplates every use which public necessity and convenience requires. In a city, even a commercial railroad may be located in the streets, and, if ingress and egress is afforded an abutting owner, he has no claim for damages or compensation (Railway Co. v. Larson, 40 Kan. 301, 19 Pac. 661, 2 L. R. A. 59); but no one would claim that such a use is within the scope and purpose of a rural highway. Again, the ownership of the fee in the highway not only distinguishes it from a city street, but as to the exercise of eminent domain and the maintenance of injunction it is of controlling consequence. If there is no ownership, there is nothing to condemn, and, if compensation may be had in damages for unreasonable interference with the adjoining owner's ingress and egress, injunction will not be allowed. In a city street the public has not only an easement, but it holds the fee as well. It holds the trust and every vestige of the title. The interest which the adjoining owner has in a rural highway is not unimportant or intangible, as is claimed by the telephone company. He retains a title and estate in the highway which gives him substantial rights, and of which he cannot be deprived until just compensation has been paid or secured. In Commissioners of Shawnee County v. Beckwith, 10 Kan. 604, it was said that: "The fee in the land never passes to the public, but always continues to belong to the original owner. He continues to own the trees, the grass, the hedges, the fences, the buildings, the mines, quarries, springs, water courses--in fact, everything connected with the land over which the road is laid out, which is not necessary for the public use as a highway. Angell on Highways, c. 7, §§ 301-312. He may remove all these things from the road, or use and enjoy them in any other manner he may choose, so long as he does not interfere with the use of the road as a public highway. No other person has any such rights." In respect to the rights acquired by the public it was also remarked: "The public obtains a mere easement to the land. It obtains only so much of the land, soil, trees, etc., as is necessary to make a good road. It obtains the right of persons to pass and repass and to use the road as a public highway only, and nothing more." See, also, Caulkins v. Mathews, 5 Kan. 199. This early decision, since accepted and followed, declared the purpose of a rural highway to be travel and a right of the public to pass from place to place thereon, and nothing more. The highway contemplated when the road was laid out was one equally open to the use of every one; not one where a part of it might be permanently and exclusively occupied by private parties and largely for private profit. The placing of poles in the highway is a permanent location, which necessarily excludes the owner of the adjoining land and every one else from the part so occupied. Here it prevented the plaintiff from trimming his hedge and obtaining the grass which the court said belongs to him. The theory of the law when the road was laid out was that the adjoining owner had the same rights in the easement granted as every other member of the public; but he is not free to use the telephone line, and is excluded from the ground occupied by it. The Supreme Court of New York, in speaking of the contemplated use of rural highways, said: "The primary law of the highway is motion, and whatever vehicles are used, or whatever method of the transmission of intelligence is adopted, the vehicle must move and the intelligence be transmitted by some moving body which must pass along the highway, either on, or over, or perhaps under it, but it cannot permanently appropriate any part of it." Eels v. American Telephone & Telegraph Co., 143 N. Y. 133, 38 N. E. 202, 25 L. R. A. 640. The telephone, however, is a stationary appliance, a permanent obstruction, a fixture in the soil, which necessarily involves exclusive possession. When the easement was obtained and paid for by the county, can it be conceived that the owner understood that he had surrendered to others the permanent and exclusive possession of a part of the high way, or that the public understood it was Much is said about the utility and conve- If the view taken in the majority opinion transmitting information, why may not tele- I think that the function of a telephone is In all of the cases cited in support of the supra, a street case, it is said: "There is an essential distinction between urban and suburban highways, and the rights of abutters is much more limited in the case of urban streets than they are in the case of suburban ways." The case of Castle v. Telephone Co., supra, calls attention to the fact that public easements in the streets of cities and villages are much more extensive than a country highway. The same may be said of Lockhart v. Street Railway Co., supra, where it was said that "what might be considered an invasion of private right, so far as the use of a highway is concerned, in the country, might not be so in a city." In the two cases holding that the telephone is not an additional servitude on the rural highway, the Minnesota decision was made by a bare majority, and even in that state it is held that a railroad is an additional burden on a city street. In the Michigan case there was also a strong dissent, and in the prevailing opinion it was said that under the statutes of that state any damages sustained by the adjoining owner by the erection of the poles in the highway could be recovered. It is interesting to notice the view taken of this question by authors of text-books. For instance, in Joyce on Electrical Law, p. 321, it is said: "We are of the opinion that the construction of telegraph and telephone lines upon the highways or streets is not within the original purposes of dedication or the taking of the same, and that the poles and wires constitute an additional servitude, entitling the owner to compensation." In 2 Dillon on Municipal Corporations, § 96a, it is remarked: "On the whole, the safer and perhaps sounder view is that such a use of the street or highway, attended as it may be, especially in cities, with serious damage and inconvenience to the abutting owner, is not a -street or highway use proper, and hence entitles such owner to compensation for such use, or for any actual injury to his property caused by the poles and lines of wire placed in front thereof." In Elliott on Roads and Streets, 534, it is said: "We are inclined to the opinion that such a use constitutes a new burden, for which the owner of the fee is entitled to compensation." Lewis on Eminent Domain, § 131, says: "The lines of a tele graph or telephone company are on the same footing as the steam railroad. They form no part of the equipment of a public highway, but are entirely foreign to its use. Where the fee of the street is in the abutting owner, he is clearly entitled to compensation for the additional burden placed on his land." In Crosswell on the Law of Electricity, § 110, it is said: "The use of the highway, however, for the transmission of intelligence, is a use wholly different from public travel. Incidentally, no doubt, it effects somewhat similar objects. The * nature of the use, however, is essentially different, and the courts have generally recognized this difference." In Randolph on Emi nent Domain, § 407, the difference of opinion on the question is recognized, and it is remarked that "the prevailing opinion seems to be that the plant is an additional servitude." Justices CUNNINGHAM and MASON are of the opinion that the decision first made should be adhered to, and join with me in this dissent. BURCH, J. (concurring). The Chinese have boots for the feet which prevent their natural growth and development beyond the measure of childhood days. Old decisions rendered without any possible conception or consideration of future circumstances and conditions ought not to be allowed to produce the same effect on the law of a commonwealth. Caulkins v. Mathews, 5 Kan. 191, was decided in 1869. The suit was brought to recover for the loss of a horse described as "blind of an eye," which fell into an open well on private uninclosed grounds. There was no road through the premises, and the horse was not injured upon any road. The court, however, in speculating upon what might have been the rights of the plaintiff at a place where his horse was not injured, if there had been a road there, said that it could hardly be supposed that he could make pasture fields of the public highways; that men may pass and repass with their stock upon the public highways, but that such is the extent of their right-meaning, of course, their right with respect to stock on the highway. In 1873 the case of Shawnee County v. Beckwith, 10 Kan. 604, was decided. A road was laid out which embraced a hedge within its limits. The landowner wanted damages for a total deprivation of the hedge, which was removable. The court held that his damage was the cost of removing the hedge and any depreciation it suffered by removal. Why it was not the duty of the road overseer to remove the hedge as an obstruction to travel does not appear. In the opinion it was said that nothing connected with the land passes to the public except what is actually necessary to make the road a good and sufficient thoroughfare for the public; that the public obtains a mere easement in the land; that the fee remains in the owner; that he continues to own everything connected with it which is not necessary for the public use as a highway; and that he may remove trees, grass, hedges, fences, buildings, etc., so long as he does not interfere with the use of the road as a public highway-all of which, it may be conceded, is true to-day, and perfectly true for the plaintiff in this case after the defendant's telephone poles are up. But the court, having in mind the Caulkins-Mathews Case, cited it as authority upon the rights of the public generally in a regularly laid out highway. Even if the decision were open to the interpretation that the public use of a highway is limited to travel and passing from |