The injustice to the abutting owner arising from the exercise of unrestrained legislative power over streets in cities was such that the abutter necessarily sought legal redress, and the discussions thence ensuing led to a more careful ascertainment of the nature of streets, and of the rights of the adjoining owner in respect thereof. It was seen that he had in common with the rest of the public a right of passage. But it was further seen that he had rights not shared by the public at large, special and peculiar to himself, and which arose out of the very relation of his lot to the street in front of it; and that these rights, whether the bare fee of the streets was in the lot owner or in the city, were rights of property, and as such ought to be and were as sacred from legislative invasion as his right to the lot itself. In cities the abutting owner's property is essentially dependent upon sewer, gas, and water connections; for these such owner has to pay or contribute out of his own purse. He has also to pay, or contribute towards the cost of sidewalks and pavements. These expenditures, as well as the relations of his lot to the street, give him a special interest in the street in front of him, distinct from that of the public at large. He may make, as of right, all proper uses of the street subject to the paramount right of the public for all street uses proper, and subject also to reasonable and proper municipal and police regulation. Such rights, being property rights, are like other property rights under the protection of the Constitution.1

1 That the rights of the abutters in the streets are property rights, the Court of Appeals of New York has frequently decided. We refer particularly to Gilbert's Case, 70 N. Y. 361; to the great judgment of Mr. Justice Danforth, speaking for the court in Story's Case, 90 N. Y. 122; to the careful and exhaustive judgment of the court delivered by Chief Judge Ruger, in the sequel to that case known as Lahr's Case, 104 N. Y. 268; to the still later judgment, clear and luminous, written by Mr. Justice Finch, in the New York District Railway Case, 107 N. Y. 42. Chief Judge Ruger in Lahr's Case said: "The abutter, though limited by deed to the side of the street, owns an easement in the bed of the street, which is an interest in real estate constituting property in the sense of the Constitution." Again, he said that "if the city has the fee it is a qualified fee, held in trust under the statute for a certain use, namely, for street

purposes, all other uses residing with the owner from whom the land was taken." The third proposition which the Chief Judge in that case enunciated, as derived from the prior judgments of the court, is expressed in this language: "The ownership of such an easement is an interest in real estate constituting property within the meaning of that term as used in the Constitution of the State, and requires compensation to be made therefor before it can be lawfully taken from its owner for a public use.'

In Sadler's Case, 104 N. Y. 229, the court held that the public could not take gravel below the grade line of a street to use on the street elsewhere, and that the abutter could restrain the removal of the gravel, on the principle that he owns the soil of the street and has the right to the use of it for all purposes but street purposes proper. And in the New York District Rv. Case, supra, the court distinctly decided that a

§ 656 b. Same subject. Result of the New York Cases stated. In some of the streets of the city of New York the fee is in the abutter, in others the fee is in the city; under the statute, however, it is not an absolute, but a qualified fee, viz., in trust for street uses proper. This qualification is important, and is so regarded in the adjudications. This subject of the abutter's rights has undergone in New York, in the cases relating to surface railways (both steam and horse railways), to elevated railways, and to underground railways in streets, the most thorough examination, and it is difficult, if not impossible, to reconcile the grounds of the earlier with those of the later judgments of the Court of Appeals, at least so far as the earlier cases make certain rights of the abutter to depend upon whether the bare fee of the soil is in him, or in the public in trust for street uses. To this extent the law, even in New York, cannot perhaps be said to be thoroughly settled. Certainly it is not in many of the other States. We deduce from the later decisions of the Court of Appeals of New York (which we regard as sound), the following doctrines; viz., that the abutting owners have property rights in the streets in front of them, such as the right of access, of light and of air, which are protected by the Constitution, and hence not subject to the absolute and unlimited power of the legislature. If they own the fee to the centre line of the streets, their rights therein are legal in their nature. If they only own the fee to the line of the street their rights. in the street are in the nature of equitable easements in fee, but in extent are substantially the same as where the fee is in them subject. to the public use. In either case the abutter is entitled as of right, subject to municipal and public regulation, to make any beneficial use of the soil of the street which is consistent with the prior and paramount rights of the public therein for street purposes proper. The right of the public to use the streets, not only for travel and passage, but for sewer, gas, water, and steam pipes, and the like purposes, is, of course, paramount to any proprietary rights of the abutter. The abutter may, as a logical and necessary result, it is

railway to be built beneath the surface of a street in a city is a railway within the meaning of the amendment to the Constitution of January 1, 1875, and can only be authorized to be constructed in the manner prescribed by that amendment. In McCarthy v. Syracuse, 46 N. Y. 194, which was an action against the city for flooding from a defective sewer a vault which the plaintiffs had constructed under the street in front of their store, the Court of Appeals he'd

that plaintiffs were entitled to recover, because they had a right to use the space under the street as they might any other part of their property, so long as they did no injury to the street. Post, secs. 664, 664 a, 730, note, and case of Fritz v. Hobson there cited.

Special constitutional limitation on legislative power over streets, see post, sec. 701 a.

1 See cases cited in last preceding sec

believed, whether the fee is in him or in the public, build, as of right, underground house vaults in the streets, subject, of course, to the paramount right of the public for street uses proper where the two rights come into competition, and subject also to reasonable legislative, municipal, or police regulations as to location, mode of construction, and use of such vaults.

§ 657 (519). Legislative Power over Streets. By virtue of its authority over public ways, the legislature may authorize acts to be done in and upon them, or legalize obstructions therein, which would otherwise be deemed nuisances. As familiar instances of this may be mentioned the authority to railway, water, telegraph, and gas companies to use or occupy streets and highways for their respective purposes. And it may be here observed that whatever the legislature may constitutionally authorize to be done is of course lawful, and of such acts, done pursuant to the authority given, it cannot be predi cated that they are nuisances: if they were such without, they cease to be nuisances when having the sanction of, a valid statute.2 As respects the public or municipalities, there is, in the absence of special constitutional restriction, no limit upon the power of the legislature as to the uses to which streets may be devoted. What limitations exist upon the power as respects the original proprietor of property dedicated to the public use, or the adjoining owner or others, is a subject which is elsewhere considered in this chapter.3 Statutes authorizing or legitimating acts and obstructions upon the highways which would otherwise be nuisances are strictly construed, and must be closely pursued, and the authority given must be exercised with proper care.1

tion. As to abutter's easement of access, &c., see, post, secs. 664, 665, 666, 698 a, 712, 730, 754 a.

1 The control of the streets in the city of Washington and the power to grant the use of them for other than ordinary purposes is primarily vested in Congress. District of Columbia Comm'rs v. Baltimore & Pot. R. R. Co., 114 U. S. 453.

2 See sec. 656, supra, and cases there cited; Angell on Highways, sec. 237; First Bant. Church v. Ut.ca & S. R. Co., 6 Barb. (N. Y.) 313; Clinton v. C. R. & M. R. R. R. Co., 24 Jowa, 455; Transportation Co. v. Chicago, 99 U. S. 635 (1878); Text cited and approved in Perry v. New Orleans, &c. Co., 55 Ala. 413; Atlanta ". Cate City Gas L. Co., 71 Ga. 106; Irwin v.

Great So. Telephone Co., 37 La. An. 63 ; Kirtland v. Macon, 66 Ga. 385; Cummins v. Seymour, 79 Ind. 491; Kumler v. Silsbee, 38 Ohio St. 445 (steam-heating pipes).

3 Ante, secs. 656 a, 656 b; post, secs. 712, 730, and New York Elevated Railway cases, post, secs. 723 a-723 d.

237;

Angell on Highways, sec. Hughes v. Worcester R. R. Co., 2 R. I. 493; Bordentown & S. A. Turnp. Co. v. Camden & A. R. R. Co., 2 Harr. (N. J.) 314. In virtue of its authority over highways and over streets, which are, in effect, highways, the legislature may establish a turnpike gate in the strets of a city. But as such a privilege would embarrass public trade and convenience, the intention of the legislature must be plainly expressed.

§ 658. Delegation of Power to Municipality. The legislature, instead of exercising directly this authority as to the uses of streets and public places, may authorize it to be exercised by local or municipal authorities. An act of the legislature, legalizing, for the time being, encroachments on the public streets, may be repealed at pleasure, being a mere revocable license, unless something was done or suffered in consideration of the act so as to invest it with

the qualities of a contract. How far a city can by contract or ordinance authorize an irrevocable use of its streets by others for public uses, depends upon its charter, and is a subject elsewhere considered.2

§ 659 (520). Obstruction; Remedy of Public by Indictment and in Equity. - The principle that streets and public places or the uses thereof, speaking generally, belong to the public is one of great importance. Because they are public, whether the technical fee be in the adjoining owner, in the original proprietor, or in the municipality in trust for the public use, any unauthorized obstruction of the public enjoyment is an indictable nuisance. And the proper officer of the commonwealth may proceed, in the name of the public, by bill in equity, for an injunction or relief, or by other