consent cannot be given by resolution, and insists that the municipality, in such a matter, can only act by ordinance. But the rule, according to the adjudged cases, is firmly settled the other way, and may be stated as follows: Where a statute commits the decision of a matter to the common council or other legislative body of a city, and is silent as to the method in which the decision shall be made, it may be made either by resolution or ordinance. Or-to state the rule in another form where no method is prescribed in which a municipality shall exercise its power, but it is left free to determine the method for itself, it may act either by resolution or ordinance. One method is just as effectual in point of law as the other. State v. Jersey City, 3 Dutch. 493; City of Burlington v. Dennison, 13 Vr. 165; Butler v. Passaic, 15 Vr. 171.

In view of the legislation and the action of the city authorities just discussed, it would seem to be clear, that the right of the defendant to use electricity as its motive-power stands, at least so far as the public are concerned, on a sure foundation. The poles and wires are to be used to apply electricity to the motors on the cars. They form a part of what is called the overhead system. In the present state of the art, they constitute a part of the best, if not the only means, by which electricity can be successfully used for street-car propulsion. The proof on this point is decisive. Thomas A. Edison is perhaps the highest authority on this subject in this country. He says, in an affidavit annexed to the defendant's answer, that the only method of ap plying electricity for street-car propulsion which, up to the present time, has proved successful, electrically and commercially, is what is known in the art as the overhead system, whereby electricity is supplied to the motors on the cars from wires suspended above the cars. Other electricians say the same thing. The proofs also show, that there are over two hundred electric street railways in the United States either in operation or in course of construction, and that of those in operation nearly all use the overhead system. That, according to the proofs, is the best system, and the one in general use, and the only one which, as yet, has proved successful. The facts just stated are in no way controverted, so, as the proofs now stand, the court is bound to declare, as an established fact, that the poles and wires are, in the present state of the electric art, necessary to the successful operation of the defendant's railway by electricity. The poles and wires are to be used as helps to the public in exercising their right of passage over the street. They form part of the means by which a new power, to be used in the place of animal power, is to be supplied for the propulsion of street cars, and they have been placed in the street to facilitate its use as a public way and thus add to its utility and convenience. The whole matter may be summed up in a single sentence: the poles and wires have been placed in the street to aid the public in exercising their right of free passage over the street. That being so, it seems to me to be clear beyond question, that the poles and wires do not im

pose a new burden on the land, but must, on the contrary, be regarded, both in law and reason, as legitimate accessories to the use of the land for the very purposes for which it was acquired. They are to be used for the propulsion of street cars, and the right of the public to use the streets by means of street cars, without making compensation to the owners of the naked fee in the street, is now so thoroughly settled as to be no longer open to debate. It would seem then to be entirely certain, that the occupation of the street by the poles and wires takes nothing from the complainant which the law reserved to the original proprietor when the public easement was acquired. This view is in strict accord with the uniform current of judicial opinion on this subject. The question presented here for judgment has already been considered by the Supreme Court of Rhode Island in Taggart v. Newport Street Railway Co., 19 Atl. Rep. 326, and by the Circuit Court of the United States for the eastern district of Arkansas in Williams v. City Electric Street Railway Co., 41 Fed. Rep. 556, and by local courts in Kentucky, Ohio, and Indiana, and in each instance the decision has been that the placing of the poles and wires in the street, for the purpose of propelling street cars by electricity, did not impose a new servitude on the land, nor appropriate the land to a use not within the public easement. The decision in these cases was placed upon this manifestly just principle: that the question, whether a new method of using a street for public travel results in the imposition of an additional burden on the land or not, must be determined by the use which the new method makes of the street, and not by the motive-power which it employs in such use. The use is the test and not the motive-power. And this principle exhibits, in a very clear light, the reason why it has been held that the placing of telegraph and telephone poles in the street imposes an additional servitude on the land. They are not placed in the street to aid the public in exercising their right of free passage, nor to facilitate the use of the street as a public way, but to aid in the transmission of intelligence. Although our public highways have always been used for carrying the mails and for the promotion of other like means of communication, yet the use of them for a like purpose, by means of the telegraph and telephone, differs so essentially, in every material respect, from their general and ordinary uses, that the general current of judicial authority has declared that it was not within the public easement. Massachusetts has, however, by a divided court, held otherwise. Pierce v. Drew, 136 Mass. 75. . . .

The poles and wires. . . are designed to facilitate the use of the streets as means of public passage, and thus increase their utility and convenience to the public. But I do not believe it is possible to imagine any condition of facts which would make it lawful to erect a building, to be used as a dwelling, in a public way. Such use of the land would undoubtedly be entirely foreign to the purposes for which it was acquired. There can, however, be no doubt, I think, that erections may be law

fully made in the streets of a city for the purpose of lighting them. They must be lighted at night to make their use safe and convenient, and to prevent lawlessness and crime. By the charter of Newark, power is given to its governing body, by express words, to light the streets, parks, and other public places. I have no doubt that in virtue of this power the city has the right to erect poles in the street just where the poles in question are. The poles in question are in fact to be used for the purpose of lighting the street. One of the conditions on which the city gave its consent to the erection of the poles is, that the defendant shall place on every other pole a group of five incandescent lights, of sixteen candle-power each, and furnish such light every night. This use of the poles and wires would, in my judgment, legalize their erection, but this is not their primary use. They were erected primarily and principally to facilitate the use of the street and add to its convenience as a public way, and it is upon this ground that I think it should be declared that their presence in the street invades no right of the complainant.

The averment that the use of electricity by the defendant, as its propelling power, will render the street so extremely dangerous as practically to destroy it as a public way for any other use than that which the defendant may make of it, is not supported by the proofs; on the contrary, I think it is very clearly shown, that an electric current of the volume the defendant will use, may be used with entire safety to everybody.

The complainant's application must be denied, with costs.1

1 And so Patterson Ry. Co. v. Grundy, 26 Atl. Rep. 788 (N. J. Ch. 1893); Taggart et al. v. Newp. St. Ry. Co., 16 R. I. 668 (1890); Dean v. Ann Arbor St. Ry. Co., 93 Mich. 330 (1892); aff 'g Det. Ry. v. Mills, 85 Mich. 634 (1891). See Poles and Wires, 4 Harv. Law Rev. 245; Keasbey, Electric Wires in Streets, cc. vi-xi.; Randolph, Em. Dom. s. 403.

In West Jersey Ry. Co. v. Camden, &c. Ry. Co., 29 Atl. Rep. 423, 424 (N. J., June, 1894), the court (MCGILL, CHANCELLOR), in dissolving an injunction, said: "The complainant seeks to sustain the injunction it has obtained as a protection against the invasion of its property rights which, under the Constitution, cannot be appropriated by the street railway without authority of law, and upon compensation. The rights which it deems to be threatened arise from its status, first, as the owner of the fee of land occupied by Cooper Street; and, second, as the owner of a steam railroad authorized to cross that street. The ownership of the fee in the soil in the public street is subordinate to the public use thereof for the purposes of a highway. That use is an easement of passage by every one over the highway, and every part of it, by any means which will not substantially and permanently exclude any one from the enjoyment of that common right. The means by which such use is to be lawfully had cannot be particularly defined, because, as suggested by Vice-Chancellor Van Fleet, in Halsey v. Railway Co., 47 N. J. Eq. 380, 20 Atl. 859, they will be as numerous as the improvements of the age and new wants, arising out of an increase in population or an enlargement of business may render necessary. It has been repeatedly declared by the courts of this State that the use of the public easement of a highway by a horse railway is a lawful servitude, and therefore is not a new burden of the soil for which compensation must be made to the owner, the reason being that it is a convenient and beneficial means of passage to the public which does not prevent the accustomed use of the highway by

others. On the contrary, it so accommodates and facilitates that use that it more than compensates for the slight inconvenience that its rails and the necessity of permitting it to have the right of way over ordinary vehicles occasion. It is a means of use which stands in marked distinction from the steam railway (though the difference is only in degree), whose raised rails, noise, speed, and accompanying danger have led the courts to declare it to be incompatible with the common use of the highway, and therefore an additional servitude, for which the owner of the soil must be compensated. Citizens' Coach Co. v. Camden Horse R. Co., 33 N. J. Eq. 267. The electric street railway, as now ordinarily in use, by cars patterned in style and size after the horse railway car, stands, as a means of using the highway, in degree, between the horse and the steam railways. As in case of the horse railway, its rails do not materially interfere with the ordinary use of the highway. While its motive-power, as usually applied, exceeds in capacity that of the horse railway, and the noise and danger attending its operation are greater, they do not extend to the power, noise, and danger of the steam locomotive, with its attendant train of cars. Its capacity for speed is great, but that is subject to municipal control. I do not now deal with the future possibilities of the electric railway. It may readily be conceived that the greater motive-power it possesses may some time induce an attempt to use the highways by trains of cars, or by rails and cars of such character and size as to practically work all evils of the steam railway, and that there will be inaugurated systems of through cars, in furtherance of rapid transit between distant points, which will crowd and burden the street to the inconvenience and obstruction of its other uses, without any accommodation to the ordinary local use of the street, and thus the degree of incompatibility with the common use may be so raised that the courts will be obliged to distinguish between methods of use, and declare against some as creating an additional servitude of the land occupied by the highway, the crucial test for that distinction being whether the use contemplated is compatible with the purpose for which the common highway was originally designed. But such use is not at present the normal operation of the electric street railway, and it is not claimed that any such abnormal conditions exist in the case under consideration. "Basing their conclusions upon the contemplation of the customary use of the electric street railway, the courts have regarded that, as operated by the trolley system, it is not an additional burden upon the soil in the common highway. Halsey v. Railway Co., supra; Taggart v. Railway Co., 16 R. I. 668, 19 Atl. 326; Railway Co. v. Mills, 85 Mich. 634, 48 N. W. 1007; Lockhart v. Railway Co., 139 Pa. St. 419, 21 Atl. 26; Hudson River Tel. Co. v. Watervliet Turnpike and Ry. Co., 135 N. Y. 393, 407, 32 N. E. 148; Railway Co. v. Winslow, 3 Ohio Cir. Ct. R. 425. The first cited of these cases is the utterance of this court. But it is a work of supererogation at this time to treat this question as more than an unsettled and doubtful one. It is at least that. The present application is to dissolve a preliminary injunction which will not be suffered to stand in the protection of the complainant from a use of the street by the defendant which may or may not invade its property rights. Unless the invasion be clear, the injunction must be dissolved. Citizens' Coach Co. v. Camden Horse R. Co., supra: Hagerty v. Lee, 45 N. J. Eq. 255, 17 Atl. 826.

"But it is urged that the poles, planted within the curb lines of the sidewalk to support the overhead wires, are at least an invasion of private property. The sidewalks are parts of the highway, subject to the public easement. They are set apart principally for use by pedestrians. They are defined by the curb lines beyond which vehicles may not go, and at which, experience has taught, lamp, hitching, and awning posts, shade trees, and the like, may be planted without inconvenience either to pedestrians or vehicles. At that place the lamp-post, which provides a means to light the highway and thus facilitate its use, has not been regarded as an additional burden upon the soil, and, upon similar consideration, it becomes difficult to perceive why the poles which accommodate a convenient use of the highway by a street railway are to be regarded differently. It is to be remembered, however, that the abutting land-owner ordinarily has something more of property than the ownership of the mere fee of the soil in the sidewalk. By the laws and usages of the State the sidewalk has in a degree been regarded as an appendage to and a part of the premises abutting upon it, and as so essential to the beneficial use of such premises that its improvement is prop

STREET RAILWAY COMPANY v. DOYLE.

SUPREME COURT OF TENNESSEE.

[88 Tenn. 747.]

1890.

APPEAL in error from Circuit Court of Shelby County, L. H. ESTES, J. Turley & Wright and Myers & Sneed, for Street Railway Company. F. P. Edmonson and J. P. Houston, for Doyle.

CALDWELL, J. Action of Doyle, an abutting lot-owner, to recover damages from the East End Street Railway Company for the alleged wrongful and unlawful construction and operation of its railway line along and upon the highway in front of his property. Verdict and judgment for plaintiff, and appeal in error by defendant.

On the trial below the defendant requested the trial judge to instruct the jury as follows: "If the jury find that the defendant constructed its road through a part of the city to a point five miles into the country, in accordance with its contract with the city and county, road [its cars] being propelled by a steam motor, and used only for carrying passengers, stopping at street crossings to take on passengers, then the court charges you that its construction is not an additional servitude upon the streets or public roads from that contemplated in the dedication."

The court refused to give this instruction, and his action in that behalf is assigned as error.

This presents the question reserved in the Smith case (3 Pickle, 633), namely: Whether a railway, whose cars are propelled by "a dummy steam-engine," and used for passengers only, is a burden or servitude on the public street or highway in addition to that contemplated in the original dedication of the land to public use. The resererly imposed upon the owner of the abutting land. Halsey v. Railway Co., supra ; State v. Mayor, &c., 37 N. J. Law, 415; Weller v. McCormick, 47 N. J. Law, 397, 1 Atl. 516. It follows that if such improvement of the sidewalk, or constructions under it, which the land-owner shall lawfully make in pursuance of his duty to the public, or for his own private convenience, be expensive in character, so that substantial damage will result to him from the planting of the trolley poles, a serious question will arise whether there will not be a taking of his property for which he must be compensated, and a threatened invasion sufficiently serious to induce this court's interference. But that question is not presented in this case. It does not appear that the complainant has improved the sidewalk in front of its property so that the planting of the poles will substantially or seriously damage such improvement, or, indeed, that it has improved them at all. Another consideration borne in mind is that the abutting property owner has the right of ingress to and egress from his property by means of the street in a manner which will accord with the lawful purposes to which he devotes his property, and also to a reasonably available way through the highway to the several stories of his building in cases of emergencies, like fire. He also has the right to light and air from the highway. And he cannot be deprived of either of these rights by the placing of poles or erection of wires without compensation being made to him. Railway Co. v. Grundy, 51 N. J. Eq. 213, 223, 26 Atl. 788. No question touching these rights is presented at this time." - ED.