Erection of poles in streets. State v. Trenton Passenger Railway Co. . IV authorize the use of poles in the streets, with wires thereon to supply the motors with electricity, and to prescribe the places in which such poles should be located. Two of these poles were located by the ordinance on the complainant's lands, on the sidewalk, inside of the curb. Holes were dug and poles were set in the ground by the company at the places indicated by the ordinance. The contention of the prosecutrix is that the setting of these poles on her lands constituted a permanent, exclusive, and continuous use of her lands, not within the customary and legitimate use of the lands of abutting owners on a public way, and was to that extent a taking of private property such as is interdicted by the constitution, except upon just compensation made, and that an ordinance authorizing the erection of poles, and the stringing of wires thereon, for the purpose of supplying the company's motors with electricity, without providing for land taken, is illegal and void. The statute which underlies this ordinance does not confer upon these companies the right to acquire private property by the exercise of the right of eminent domain. By that act the legislative purpose was to confer upon these companies the right to erect poles, and use the trolley system, so far as the public easement was concerned, and made it the duty of the municipal government to fix and designate the location of the poles with a view to the public convenience in the use of the streets; leaving the several companies, if their necessities or convenience require the appropriation of private property, to obtain the consent of landowners by agreement. In withholding the power of eminent domain, the legislature intended that, if private property was necessary or desirable, these companies should acquire rights in private property by the consent of the owners, and not take it in invito. The act, in withholding the power of condemnation, may not efectuate all that these companies, in particular instances, desire for the scheme of improvement they have embarked upon; but the act, by its imperfection in this respect, is not rendered wholly void. Injuries by vibrations caused by the weight of the cars of the company, combined with the speed at which they were run, belong to the same class of injuries as that which may arise from the setting of poles. The owner of lands abutting upon a street holds his title subject to the inconveniences and injurious consequences, including those . & Eng Cas State v. Trenton Passenger Railway Co. jury to abut occasioned by noise and vibration, resulting from a user which is consistent with the legitimate and proper use to which these public thoroughfares are devoted. But such injuries as are caused by a manner or mode of user which is not justifiable on the ground that the locus in quo is a public street will lay the foundation for, and are redressible by, action. In Beseman v. Railroad Co., 50 N. J. L. 235, and Id., 52 N. J. L. 221, the immunity of a corporation exercising public franchises from liability for incidental damages occasioned to abutting lands was limited to such damages as were occasioned by the exercise of its franchises with care and skill in all respects. Neither the act of 1893, nor the ordinance under review, purported to legalize the size or weight of cars to be provided by the company, nor the speed at which they should be run. The privileges granted were capable of being employed without an excessive or unusual injury to lands abutting upon the streets. If the privileges granted by this statute are made the occasion for unlawfully injur- Unlawful ining the owners of abutting property, such acts of ting owners. the company are ultra vires, and redressible by action at the suit of the injured party. The act of the legislature is a general law for the equipment of street railways throughout the state and the ordinance under review is, in those respects which are material to this controversy, similar to the ordinances under which many streets railways have been equipped and are operated. A decision that such ordinances, and the statute under which they were made, were invalid, for the reason that, in a particular case before the court, it should appear that these privileges have been made the occasion for unlawfully injuring private property, when such injury was not the direct product of the ordinance, would be disastrous to public interests, and not warranted in law. For such injuries the remedy of the party injured is by action. If the acts done under color of the ordinance or the statute be found to be an unlawful invasion of the rights of private property, an action will lie, in which neither the ordinance nor the statute would be a justification. Costigan v. Railroad Co., 54 N. J. L. 234, 239, 240. The remaining reason assigned for setting aside this ordinance is that it is unreasonable, so far as it authorizes and permits the construction and operation of a double-track railway to be operated by the trolley system upon West State Vol. IV. (N. S.) street between Warren and Calhoun streets. The title of the ordinance relates solely to the use of electric motors, and the erection of poles with wires thereon to supply electricity to the motors. The permission granted to the company is to use their motors and appliances "on its tracks, which are hereby authorized to be laid," enumerating certain streets, among which is State street, from the easterly limits to the westerly limits of the city. The ordinance recognizes double and single tracks, which were probably laid under the authority of the company's original charter. Be that as it may, nothing appears in the case to show that there is anything in the situation of West State street, either in its width or surroundings, that makes a double track in the street, with cars operated by the trolley system, in itself injurious or unreasonable, either with respect to the public convenience, or to private property. Nor does it appear that the track of the company's railroad next to the property of the prosecutrix has been placed so near the curb line as unreasonably to interfere with access to her property, or the enjoyment of those privileges which owners of abutting lands are entitled to enjoy in a public highway in front of their premises. The ordinance, in its second section, reserves to the board of public works the right to make reasonable regulations governing, among other things, the number of cars in a train, and in the sixth subdivision of the nineteenth section trail cars are mentioned. Under these sections the company appear to claim a right to run trains made up of a motor car and one or more connected passenger cars, called "trailers." Trains so made up were run during the state fair as through trains to the fair grounds, with instructions to the company's employees not to carry local passengers. It may be difficult to justify such a use of the streets upon the theory upon which the use of streets for street railways has been justified as a legitimate use. But there is no reason assigned which brings this part of the ordinance under review. Finding no infirmity in the ordinance, or in the statute in virtue of which it was passed, within the reasons assigned for setting aside the ordinance, I think the judgment of the supreme court sustaining it should be affirmed. NOTES Whether Trolley an Additional Burden.-It has been contended that an electric street railway, operated by what is known as the trolley system, with its poles and wires and its peculiar track, constituted a new servitude upon the land in the street; but the contention has not been sustained, and electric railways are considered to be not different from other street railways in this regard. The question whether an additional burden is imposed or not cannot be determined from the motive power employed. Halsey v. Rapid Transit St. R. Co., 47 N. J. Eq. 380, 46 Am. & Eng. R. Cas. 76; Koch v. North Ave. R. Co., 75 Md. 222, 50 Am. & Eng. R. Cas. 401; District Att'y . West Chester, 9 Pa. Co. Ct. Rep. 546; Lockhart v. Craig St. R. Co., 139 Pa. St. 419, 47 Am. & Eng. R. Cas. 57, 64, note (injunction denied); Williams 7. City Electric St. R. Co., 41 Fed. Rep. 556, 43 Am. & Eng. R. Cas. 215; Taggart 7. Newport St. R. Co., 16 R. I. 668, 43 Am. & Eng. R. Cas. 208; Detroit City R. Co. Mills, 85 Mich. 634, 46 Am. & Eng. R. Cas. 608; Nieman v. Detroit Suburban St. R. Co., 103 Mich. 256, 1 Am. & Eng. R. Cas. N. S. 174; Dean 7 Ann Arbor St. R. Co., 93 Mich. 330; People v. Fort Wayne, etc., R. Co., 92 Mich. 522; Ogden City R. Co. v. Ogden, 7 Utah 207; Tracy . Troy, etc., R. Co., 54 Pan (N. Y.) 550 Potter 7. Saginaw Union St. R. Co., 83 Mic. 295; Mt. Adams, etc., R. Co. v. Winslow, 3 Ohio C. Ct. 425; elton v. East Cleveland R. Co., 22 Wkly. L. Bull. (Ohio) 67. Where the owner of a corner lot owns the fee to the centre of the street, and the electric railway company has its track wholly on the opposite side of the centre of the street, he is entitled to no relief other than an order perpetually enjoining the company from thereafter erecting in front of his premises any poles or wires without his consent. Barber 7. Saginaw St. R. Co., 83 Mich. 299. Electric-Railway Wires Distinguished from Telegraph Wires.-In Taggart v. Newport St. R. Co., 16 R. I. 668, 43 Am. & Eng. R. Cas. 208, the court took pains to distinguish the case in hand from those relating to telegraph and telephone wires. DURFEE, J., said: "Assuming telegraph and telephone poles and wires do create a new servitude, we do not think it follows that the poles and wires erected and used for the service of the street railway likewise create a new servitude. Telegraph and telephone wires are not used to facilitate the use of the streets where they are erected for travel and transportation, or if so, very indirectly so; whereas the poles and wires here in question are directly ancillary to the uses of the streets, as such, in that they communicate the power by which the street cars are propelled." Commenting on this case, Judge Dillon observes: "The distinction mentioned is so fine as to be almost impalpable, and it suggests serious doubts whether both conclusions are sound and reconcilable. The general subject awaits further development and settlement." 2 Dillon Mun Corp. (4th ed.), § 734, c. The same distinction is made in Halsey 7. Rapid Transit St. R. Co., 47 N. J. Eq. 380, 46 Am. & Eng. R. Cas. 76. See, as to telegraph poles, 25 Am. & Eng. Enc. of Law, p. 753. 4 (N. S.) A. & E. R. Cas.-26 Crescent City R. Co. v. New Orleans & C. R. Co. . IV. (N. S.) Vol CRESCENT CITY R. Co. ย. NEW ORLEANS & C. R. Co. (Supreme Court of Louisiana, April 20, 1896.) Street Railways-Occupancy of Another's Tracks.-In order to authorize one street-railway company to occupy the tracks of another, there must be legislative permission for the same, or it must result from such necessary implication from the grant that an abandonment of the grant would necessarily result from the nonoccupancy of the roadbed of the street railway first occupying the street. APPEAL from civil district court, parish of Orleans. Affirmed. Farrar, Jonas & Kruttschnitt, for appellant. Case stated. MCENERY, J.-The plaintiff and defendant are streetrailway corporations. The latter was in position on Carrollton avenue, when a change of route was granted to the plaintiff corporation to run through the same street, on the neutral ground. This expression, "neutral ground," has occasioned some confusion in the interpretation of the grant to plaintiff. "Neutral ground" had its origin in its. application to the unclaimed part of Canal street, which was the dividing line between two municipalities. It has no significance in its application to other streets. The center of Carrollton avenue was occupied by a gravel road before the defendant's road was located thereon. On either side there was a wide space, unoccupied, but used at times as a playground. The city engineer located the plaintiff's road, under the grant to them to pass through Carrollton avenue, on what he then construed to mean the neutral ground. This location was accepted by the plaintiff, and it commenced work for the construction of its track as located. This location did not interfere with the defendant's tracks. The plaintiff, for some reason, abandoned work on its location; and about a year |