of which right he cannot be deprived by the legislature without his consent or without compensation. We do not assume to say that this distinction, so repeatedly asserted as the essential groundwork of the judicial reasonings on this subject, is wholly overthrown. It may, however, be safely affirmed that it is, in important respects, seriously impaired, and that it seems likely, either as a result of positive provisions or of judicial reconsideration, that it will largely disappear. If in any given State or instance, the public has the absolute fee of the street or highway, and not a qualified fee for street or highway uses proper, it may well be that the legislature, as the representative of the public, may, in the absence of special constitutional restraint, authorize a railway company to use such street or highway for its road-bed without compensation to the abutter. But if the fee in the public is limited, expressly or by fair construction, to street and highway uses proper, the author's judgment is, that the scope of legislative power, as against the abutter's property rights in the street, even although these rights are incorporeal, is no greater than where the fee is in the abutter subject to an easement in the public for all legitimate street uses. If so, and in either event, since such a use of the highway or street is specially beneficial to the grantee of the franchise, or even to the public, yet as it is specially injurious to the abutting owner, it would seem to be the dictate of natural justice that for such use the latter's right to compensation should be regarded as a right of property not subject to the absolute control of the legislature. § 704 a. Same subject. Many of the adjudged cases in the different States have been made to turn upon the question whether the fee of the street was in the public or in the abutting owner, and in many instances without any close inquiry as to the exact nature of the trusts attached to the fee. If the fee in the public is absolute (which it rarely is) and is not limited to street uses proper, there may well be substantial ground for the distinction; and so there may be, if by legislation or by grant the abutter has the fee for all purposes, except for some specific and definite public use within which a proposed new use does not come. A more deliberate reconsideration of the whole subject is necessary, for on the authorities as they stand, the rights of the abutter, as affected by the question of the location of the fee, must be confessed to be in many respects uncertain, leaving the law in an unsatisfactory condition; what was supposed to have been settled has been questioned and disturbed, if not undermined. It is obvious that the law on the subject is in a transitional state, and is undergoing those stages of discus VOL. II.-13 sion and development that necessarily precede the final ascertainment of sound and true doctrines. It seemed plausible to solve the difficulties by a compendious reference to the fee; but a plausible doctrine or distinction not founded in true wisdom will not stand after the course of experience shows that it is not consonant with justice or with an enlightened view of the complex rights involved. When such injustice is clearly perceived, the slow and conservative process of judicial revision and rectification commences, and must be undergone, unless, indeed, a more speedy legislative remedy is applied.1 § 705 (558). Delegated Municipal Authority. The legislature, instead of granting, by direct act or general legislation, the power to railroad companies to occupy streets for the purpose of building and operating their roads, may delegate to municipalities the right to say when and upon what conditions, if at all, the public streets within their limits may be thus used.2 The usual and ordinary 1 Since this section was written, and as it is passing through the press, the author observes with satisfaction that the Supreme Court of Mississippi has, in a wellconsidered opinion, reached the conclusions which are expressed in the text. Theobold v. Louisville, &c. Ry. Co., April, 1889; 40 Alb. Law Jour. 335. Arnold, C. J. says: "The weight of judicial authority undoubtedly is that where the public have only an easement in the street, and the fee of the soil of the street is retained in the abutting owner, under the constitutional guaranty of private property, a steam railroad cannot be lawfully constructed and operated thereon, against his will, and without compensation. A distinction is made by some of the authorities in cases where the fee in the soil of the street is in the public, the State, county, or city, and where it remains in the abutting owner; and in the first case the right of the abutting owner to compensation is denied, and in the latter it is recognized and allowed. We perceive no well-founded difference in principle in such distinction. If the fee is in the public, it is held in trust, expressly or impliedly, that the land shall be used as a street, and it cannot be applied to any other purpose without a breach of trust. It is only where the fee is in the public, free from any trust or duty, that it may be disposed 2 Mercer v. Pittsburgh, Ft. W. & C. R. R. Co., 36 Pa. St. 99 (1859); Pac. R. R. Co. v. Leavenworth, 1 Dillon C. C. R. 393 (1871); Slatten v. Des Moines Val. R. R. Co., 29 Iowa, 148; Merchants', &c. Co. v. Railway Co., 70 Iowa, 105; Heath v. Des Moines, &c. Ry. Co., 61 Iowa, 11; Philadelphia v. Lombard & S. S. P. R. R. Co., 3 Grant (Pa.), 403; Moses v. Pittsburgh, Ft. W. & C. R. R. Co., 21 Ill. 516; Geiger v. Filor, 8 Fla. 325; Perry v. N. O. M. & C. R. R. Co., 55 Ala. 413; Tate v. O. & Miss. R. R. Co., 7 Ind. 479 ; Brooklyn Central R. R. Co. v. Brooklyn City R. R. Co., 32 Barb. 358; New York & Harl. R. R. Co. v. New York, 1 Hilton (N. Y.), 562; Hoyle v. New Orleans City R. R. Co., 23 La. An. 535 (1871); So. Pac. R. R. Co. v. Reed, 41 Cal. 256; Mathews v. Kelsey, 58 Me. 56 (1870); Wolfe v. Cov. & Lex. R. R. Co., 15 B. Mon. (Ky.) 404; Commonwealth v. Erie & N. E. R. R. Co., 27 Pa. St. 339; People's Pass. Ry. Co. v. Memphis City R. R. Co., 10 Wall. 38; Brooklyn v. B. powers of municipal corporations to regulate streets and keep them free from obstructions are not sufficient, it is believed, to empower City R. R. Co., 47 N. Y. 475 (1872); Richmond, F. & Pot. R. R. Co. v. Rich mond, 96 U. S. 521 (1877); s. c. 10 Chi. cago Leg. News, 379; Newark & N. Y. R. R. Co. v. Newark, 23 N. J. Eq. 515, 522; State v. Atlantic City Council, 34 N. J. L. 99; Paterson & Pas. H. R. R. Co. v. Paterson, 24 N. J. Eq. 158; State v. Hoboken, 35 N. J. L. 205. Charter authority to a city to authorize, with the abutter's consent, the laying of railroads on streets was held to refer to horse railways. Chamberlain v. Eliz. S. Cordage Co., 41 N. J. Eq. 43. The grant by a city of the right to use streets to lay down railroad tracks held not to be revocable after confirmation by the legislature. Nash v. Lowry, 37 Minn. 261; Harrison v. New Orleans Pac. Ry. Co., 34 La. An. 462; Burlington & Mo. River R. R. Co. v. Reinhackle, 15 Neb. 279. It is not competent for a city to authorize such use of a street, dedicated as a street, as will destroy it as a thoroughfare for the public use. Dubach v. Hannibal & St. Joseph R. R. Co., 89 Mo. 483; Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122. grant of a franchise to construct and operate a street railway is to be construed strictly and in favor of the public, as against those claiming under the grant; such a grant will not prevent the city from a reasonable regulation of the operation of the road, nor from levying a license tax upon it. Wyandotte v. Corrigan, 35 Kan. 21. The Where a city, exercising power delegated to it by the legislature, made an absolute grant to a horse railway company to use certain streets, and the company, having accepted the grant, built its road at great expense, it was held that these acts constituted a contract on behalf of the State, which could not be impaired by subsequent legislation in the way of an amendment of the city charter. Hovelman v. Kansas City Horse R. R. Co., 79 Mo. 632; ante, sec. 371. Where a railway company is, by law, authorized to mortgage its property and franchises, it may include in the mortgage its rights derived from a munici pality granting to it a right of way through streets therein, with the right to construct its railroad thereon, and such rights and franchises pass to the purchaser at a foreclosure sale, and may be exercised by him, including the right to operate the railroad and take tolls thereon. The grantee, having constructed its road under such authority, has a vested right of property which cannot be destroyed by a direct repeal, or by the grant of the same rights over the same streets and route, unless the power to do this was reserved at the time. New Orleans, S. F. & L. R. R. Co. v. Delamore, 114 U. S. 501 (1884). The grant to a railway company of the right to occupy a street whether by ordinance or by charter must plainly appear; it should not be left to implication from general language which does not clearly show an intent to give the permission. So where authority to lay such tracks 66 as may be necessary to the convenient use of any depot-grounds said company may now own, or hereafter acquire, in the vicinity of or adjoining said line of road," without specific mention of streets, it was held that no authority was conferred over streets not named in a preceding part of the ordinance. Chicago, D. & U. R. R. Co. v. Chicago, 121 Ill. 176; see also, Heath v. Des Moines & St. L. Ry. Co., 61 Iowa, 11. A city has no authority to grant a right of way over a proposed extension of a street not opened or extended. Wichita & Western R. R. Co. v. Fechheimer, 36 Kan. 45. Grant construed not to be exclusive in the grantee. Brooklyn City & N., &c. R. R. Co. v. Coney Island & B. R. R. Co., 35 Barb. 364; s. c. 18 N. Y., 160; Sixth Av. R. R. Co. v. Kerr, 45 Barb. 138; Louisville & P. R. R. Co. v. L. City Ry. Co., 2 Duvall (Ky.), 175. Effect of municipal condition that another company should have joint use of the track laid on certain streets. Jersey City & Hob. H. R. R. Co. v. J. C. & Bergen R. R. Co., 21 N. J. Eq. 550. If a railroad company is authorized to occupy the street of a city, it possesses, as a necessary incident, the power to make a "turn out" within the limits of the street, to communicate with the depot on them to authorize the use thereof for the purpose of constructing and operating thereon a steam railway, at least one between different towns in the State, since such powers are not to be enlarged by construction, and were not conferred for this purpose.1 the street. New Orleans & C. R. R. Co. v. Second Municipality, 1 La. An. 128; S. P. Knight v. Carrollton R. R. Co., 9 La. An. 284. Power to construct railroad in streets, held to include right to build sidings and branches to wharves. Black v. Phila. & R. R. R. Co., 58 Pa. St. 249; Philadelphia v. Same, lb. 253. Or to elevators. Clarke v. Blackmar, 47 N. Y. 150 (1871). In Kansas, although the fee of streets is in the county as the agent of the public, the power to provide for and regulate the passage of railways thereon is in the municipality. Atchison & Neb. R. R. Co. v. Garside, 10 Kan. 552 (1873). 1 Savannah, A. & G. R. R. Co. v. Shiels, 33 Ga. 601 (1863). In this case it was held that the usual municipal power over streets does not give the municipal authorities the right to authorize a railroad company to lay their track lengthwise on one of the streets of the city on a grade requiring deep excavations and high embankments, to the great damage of the adjoining owner. See People v. Carpenter, 1 Mich. 273; infra, secs. 706, 707. Chamberlain v. Eliz. S. Cordage Co., 41 N. J. Eq. 43; Perry v. N. O. M. & C. R. R. Co., 55 Ala. 413; State v. Hoboken, 35 N. J. L. 205; Davis v. New York, 14 N. Y. 506; Lawrence R. R. Co. v. Williams, 35 Ohio St. 168. In Kentucky the doctrine is that the municipal authorities may consent to the use of streets by railway companies. Lex. & O. R. R. Co. v. Applegate, 8 Dana (Ky.), 289 (1839); Wolfe v. Cov. & Lex. R. R. Co., 15 B. Mon. (Ky.) 404 (1854); Louisville & F. R. R. Co. v. Brown, 17 B. Mon. (Ky.) 763 (1856); Covington Street Ry. Co. v. Covington, 9 Bush, 127; Cosby v. Owensboro & R. R. R. Co., 10 Bush, 288 (1874). An act of the legislature authorized a street railway company to construct its railway along such streets of the city of Covington as "it may consider beneficial to its interest, and to which the city council may consent, authority for which is hereby given to said council to make an agreement therefor,” — Held, to authorize an agreement between the company and the city by which, among other things, the former agreed to pay to the latter an annual bonus, or compensation, for the consent of the city. Covington Street Ry. Co. v. Covington, 9 Bush, 127 (1872). The general council cannot by contract deprive itself of the power to regulate the reconstruction of railways made necessary by the changes in the character of pavement used upon the streets of the city. Louisville City Ry. Co. v. Louisville, 8 Bush (Ky.), 415 (1871); ante, sec. 97. In Iowa, it has been decided that municipal corporations have the authority to authorize the use of streets by railway companies on such grade as their councils may prescribe; and that the company is not liable for the necessary damages to adjoining lot-owners, resulting from the proper exercise of the power thus conferred. Slatten v. Des Moines Val. R. R. Co., 29 Iowa, 148 (1870). But under the statute, as construed, the right of a railroad company to occupy, lengthwise, a public street against the wish of the municipal authorities is subject to equitable control and police regulations. Chicago, N. & S. R. R. Co. v. Mayor of Newton, 36 Iowa, 299 (1873); Inghraham v. Chic., D. & M. R. R. Co., 34 Iowa, 249. See Davenport v. Dav. & St. P. R. R. Co., 38 Iowa, 99 (1873). General power to construct a railroad does not give this right to occupy a highway longitudinally. Morris & E. R. R. Co. v. Newark, 2 Stockt. (10 N. J. Eq.) 352, 362. See ante, sec. 680, note, and the cases there cited. Under the statute of Indiana, granting to cities exclusive power over streets, they may confer upon railroad companies the right to lay their tracks over, along, or across streets and alleys. Kistner v. Indianapolis, 100 Ind. 210. In Missouri if a municipality duly empowered grants to a railroad company the right to lay its track upon a street, the right is confined to lay § 706 (559). Municipality may affix Conditions to its Consent. Where, under the general statutes of a State, a railroad company was forbidden to construct and operate its road upon the streets of an incorporated city, "without the assent of the corporate authorities," these are not limited to a simple granting or denial of the right of way, but may prescribe conditions on which they will give their assent, and if these are accepted by the railroad company, they are binding upon the parties; and, accordingly, where the right of way along a street was granted by a city, on condition that the company should build a depot in a certain part of a city, and grade, rip-rap, and pave the street it used, and the company agreed to accept it on these terms, it was held that it could not hold and enjoy the grant, and not comply with the conditions on which it was made.1 ing the track upon the grade of the street. Cross v. St. Louis, K. C. & N. Ry. Co., 77 Mo. 318; Tate v. Missouri, K. & T. R. R. Co., 64 Mo. 158. The act of Congress laying off the city of Burlington, Iowa, "reserved from public sale a strip of land along the bank of a river, to remain forever for public use as a highway, and for other public uses. Held, that abutting lot-owners acquired no title thereto, but did acquire the right to have the public trusts observed; and held, also, that the city authorities, while they could not alien the dedicated property, could permit the same to be used by a railway company as a right of way for its road, or for such other public uses as would justify the exercise of the right of eminent domain. Cook v. Burlington, 30 Iowa, 94 (1870); s. c. 36 Iowa, 357 (1873); ante, secs. 648, 649. Where the common council is authorized by the legislature to permit any railroad to be laid along any street, subject to the same compensation to adjoining owners allowed under the general railroad law, the council may authorize the laying of a branch track to a private elevator, and it is not requisite that the ordinance giving the authority should provide for the compensation, as that is provided for in the statute. Clarke v. Blackmar, 47 N. Y. 150 (1871). A railway or tramway operated for carrying grain to and from a grain elevator for the proprietors thereof, held to be only a private railway, which a city has no authority to permit to be placed and operated upon its streets. Mikesell v. Durkee, 36 Kan. 97. 1 Pacific R. R. Co. v. Leavenworth, 1 Dillon C. C. R. 393 (1871); s. P. Northern Central Ry. Co. v. Baltimore, 21 Md. 93; Jersey City & B. R. R. Co. v. Jersey City & H. R. R. Co., 20 N. J. Eq. 61, 360 (1869); Indianapolis & Cinc. R. R. Co. v. Lawrenceburg, 34 Ind. 304 (1870); Richmond, F. & Pot. R. R. Co. v. Richmond, 96 U. S. 521; Detroit v. Det. Ry. Co., 43 N. W. Rep. 447; and see Fink v. St. Louis, 71 Mo. 52. A proviso in a grant of the right of way, that the horse railway shall be completed within a specified time, is a condition subsequent; the right of way vests at once subject to being defeated by the city for breach of the condition. Hovelman v. Kansas City Horse R. R. Co., 79 Mo. 632. In the same way, under a general act declaring that cities have no power to grant the use of streets to railways except upon the petition of the owners of onehalf of the frontage upon the street, it is held that the power lies dormant until the petition is made. Hunt v. Chicago Horse & D. Ry. Co., 121 Ill. 638. The Cantor Act: The New York Act of 1886 (chap. 642) provides that the municipal authorities shall sell at auction the franchise or privilege of using the streets for street railways "to the bidder who will agree to give the largest percentage per annum of the gross receipts, with adequate security." Under the act the municipal authorities may grant or withhold consent, and may impose any conditions in their discretion |