access to the land along which they pass, and that the land-owner whose land was taken acquired more of the benefits of a public highway to his land from the use of land for such a railroad, but that in the case of street railroads it was different. In general, he said:—
The cars will stop in front of every door, and convey persons from any one point on their line to any other to which they may desire to go, and the great use or advantage of them is to those whose property is taken for the street and whose lands adjoin it. … They are but means of using the public streets to a greater advantage for the very purposes for which they were laid out, free and quick transit from one part to another; they are the best and cheapest mode yet devised, and they do not hinder the use of the rest of the street for public travel, and hardly, and in a very small degree, obstruct travel on the part occupied by the tracks except the few inches used for the iron rails.
And it was held that the State, or those to whom it has delegated the authority, has the right to set apart a certain portion of the street for a street railroad, if that road is to accommodate the public travel for which the street was designed.
It is worthy of note that before it was learned by experience that the use of the steam railroad in the streets was in fact exclusive, and was not consistent with the ordinary uses of a street, it was held in New Jersey that even this was only a new mode of travel to which the streets might be devoted. Chancellor Williamson, in his remarkable judgment in Morris & Essex R.R. Co. v. Newark,[1] in 1855, said:—
While [the land] is preserved as a common public highway, the use of it does not belong to the owner of the fee any more than to any other individual of the community. The Legislature, therefore, does not, by permitting the company to use the public highway in common with the public, take away from the land-owner anything that belongs to him. It is not a misappropriation of the way. It is used in addition to the ordinary mode, in an improved mode for people to pass and repass.
It was only when it was found that the steam railroad running through a town was not a mode of using the streets for travel within the city, that the courts held that it was not a use for which the streets had been dedicated, and that although the right to use
- ↑ 2 Stock. 352.
