252 HARVARD LAW REVIEW, between cases in which the fee of the street is in the abutter and those in which the fee is in the city; but this distinction is not generally approved, and it seems to be accepted that in either case a horse railroad authorized by statute is not inconsistent with the rightful uses of a street.^ Mr. Lewis, in his recent work on Eminent Domain, says : — It has been determined in numerous decisions, and without dissent, except in New York, that the use of the street by a horse railroad con- structed and operated in the ordinary manner falls within the purpose for which streets are established, and, consequently, that for any damage resulting from such use to the abutting owner he can recover no compensation, whether the fee is in the public or not.^ Mr. Lewis, however, goes on to say that in his own opinion, although the difference between the ordinary horse railway and the ordinary steam railway is obvious, yet the difference is only one of degree. The essential characteristic of both roads is that an exclusive franchise is granted in the soil of the street, and that if the principle of the horse railroad cases is sound, then a street may be so filled with tracks as practically to excjude all other travel and traffic from the streets.^ The law, however, is settled by the great weight of authority that the street railway is not in itself an additional burden, and the proviso is that it shall leave the land- owner free right of use and of access to his land. Judge Cooley, in his work on Constitutional Limitations (sect. 6%%)^ says : — When land is dedicated for a street, it is unquestionably appropri- ated for all the ordinary purposes of a street, not merely for the pur- poses for which such streets were formerly applied, but those demanded by new improvements and new wants. Among these purposes is the use of heavy carriages which run upon a grooved track ; and the appro- priation of important streets in large cities for their use is not only a frequent necessity which must be supposed to have been contemplated, but it is almost as much a matter of course as the grading and paving. Judge Dillon and Mr. Mills reach the same conclusion.* 1 Hussner v. Brooklyn City R.R. Co., 114 N. Y. 433, 11 Am. St. Rep. 679. 2 Lewis, Em. Dom., sect. 124. 3 See also the dissenting opinion of Earl, J., in Story v. N. Y. El. R.R. Co., 90 N. Y. 179-189.
- Mills on Em. Dom., sect. 205 ; 2 Dill. Mun. Corp., § 722. But if a street railway is
laid along the margin of the sidewalk so as to disturb the grade, and so as to be in fact
