41 F. 556 | U.S. Circuit Court for the District of Eastern Arkansas | 1890
A statute of the state of Arkansas providing for the organization and defining the powers of municipal corporations provides that—
“See. 754. They shall-have power to provide for lighting the streets and alleys of the city by gas or otherwise, and to authorize the constrüction of gasworks and of street railroads. Sec. 755. For the purposeof providing water, gas,, or street railroads, the mayor and council may contract with any person or company to construct and operate the same, and may grant to such person or company, for the time which may be agreed upon, the exclusive privilege of using the streets and alleys of such city for such purpose or purposes. ” Mansf. Dig.
On the 6th day of December, 1887, the city of Little Rock, acting on the authority of the above-quoted sections of its charter, entered into a contract, in due form, with the defendant,, by the terms of which the defendant was granted the right to construct, maintain, and operate, on
“Sec. 5468. Any right of way heretofore granted by the city council of any city of the first or second-class, or tho town council of any incorporated town, to any railroad company, through the streets of such city or town, with the right to establish and maintain depots and other improvements, and facilities necessary thereto, shall be valid and binding. Sec. 5469. The city council of any city of the first or second class, and the town council of any incorporated town, shall hereafter have power to grant to any railroad company the right of way through the streets of such city or town, with the right to establish and maintain depots, and other necessary improvements, in connection therewith. Sec. 5470. If any property is injured thereby, the railroad company shall be liable for such damage, and the same shall be assessed in the manner provided by law for assessing damages for the appropriation of the right of way through lands. Sec. 5471. it shall require the written consent of two-thirds of the property in value on said street or streets; and, to arrive at said value, the last assessment of said real estate on said street or streets shall determine the value of each separate lot or parcel of land thereon. Act March 1, 1883. ”
The difference between street railroads and railroads for general traffic is woll understood. The difference consists in their use, and not in their motive power. A railroad, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise constructed so that the public is not excluded from the use of any part of the street as a public way; which runs at a moderate rate of speed, compared to the speed of traffic railroads; which carries no freight, but only passengers, from one part of a thickly populated district to another, in a town or city and its suburbs, and for that purpose runs its cars at short intervals,
The operation of a street railroad by such steam motors, when authorized by law, on a public street, is not an additional servitude or burden on the land already dedicated or condemned to the use of a public street, and is. therefore not a taking of private property, but is a modern and improved use, only, of the street, as public way, and affords to the abutting property owner, though he may own the fee of the street, no legal ground of complaint. Briggs v. Railroad Co., 79 Me. 363, 10 Atl. Rep. 47; Newell v. Railway Co., 27 N. W. Rep. 839; People v. Kerr, 27 N. Y. 204. But a steam motor may be of such construction, or operated in such a way as to create a public nuisance to the injury of the owners of abutting property; and where that is the case the-legislative authority