Electric Railways Can Have The Right To Use Streets

Several points of great interest to our people, concerning the rights of electric street railways operating under franchises given by cities were decided for the first time in the Supreme court of Michigan, on Friday last. The case went up from Detroit and was known as the Mack Road Case. The points decided are largely those involved in the Packard street case. After first holding the act under which these street railroads are organized, constitutional the decisión continúes:, It was also urged that the City of Detroit did not have the power to permit the company to opérate its cars by electricity, because authority to use that motive power was not conferred by the law under which the company was organized. The court holds that if the city has exceeded its authority it is a matter between the railway company and ihe state. The mere usurpation of a corporate authority does not confer upon the individual the right to bring suit to restrain the unlawful exercise of authority. If the state chooses to waive it or by its silence permit the action, no others can comDlain as long as the personal or property rights of the individuals are not invaded or affected. In regard to the fact that the use of electricity is not expressly authorized by the law, the court says: "It cannot be held that the Legislature intended to limit these corporations to the use of things that were then known. This rule would be too rigid and technical to merit approval. The commonlaw is more elastic and progressive. It adapts itself to the needs of the people and the advance of science and civilization. As well might it be contended that when land is dedicated to the public use for highways its use must be limited to the then known methods of travel and transportation." It was furthermore claimed that the use of the street for street railways imposes new burdens and servitude, and that it is beyond the power of the city to authorize fheir construction without additional compensation to abutting lot owoers. The court holds that when land is condemned for streets the owner receives as damages the full raarket value of his land, and that it is now considered a weli-settled rule that the streets of a city ma'y be used for any necessary public purpose and the abutting owner will not be entitled to a new compensation in the absence of a statute giving it. It was also insisted that the electric railway poles interfered with access to abutting property and therefore constituted an invasión of public rights. It was not claimed that the poles interfered with the present occupancy of the land, but would hereafter in platting and selling lots. The court says that should this tingency ever happen the Lommon Council has ampie power to compel the poles to be so placed as to créate no such interference. "These poles are a necessary part of the system. To constitute an additional servitude they must be an injury to the owner's present use and enjoyment of his land. But they do not obstruct his light or his visión. They do not interfere with his coming or going when placed so as to give him f ree access. If it be said they are unsightly, it can well be replied that they are no more so than the lamppost or the electric tower. It is as necessary thát rapid transit be furnished to a crowded city as it is that light should be furnished to its streets. Public convenience and necessity must control in all such cases." It was also asserted that when the track was laid there was not . sufficient room for the passage of vehicles when the cars are running. The court says that if this be so it is evidently due to the condition of the street, which is neither graveled nor paved. In the absence of conclusive evidence on this point, the court lays down the following eral principies bearing on the case: "The complainant cannot lawfully construct and opérate its road in a street too narrow to admit the passage of its cars and other vehicles at the same time, nor so construct it as to interfere with the rights of the general public. Nor in a street, though of sufficient width, if its condition be such that the operation of the railway will result in the practical exclusión of others from the use of the street. A railway so operated would be a public nuisance and the courts would abate it. The roadbed and track must be built substantially with the level of the street. The poles must be so placed as to not interfere with the right of ingress and egress to abutting property."