An Indecisive Opinion

The Supreme Court have rendered a decisión in the case of Theodore S. Nichols, Ella E. Nichols and Lucy L. Granger vs. the Ann Arbor and Ypsilanti Street Railway Company, a full description of which case has appeared in the Argus. The main point at issue seems undetermined. Judges Long and Grant seem of the opinión that the use of steara motor power does not impose a servitude on a highway, or to translate it into ordinary English, Judges Long and Grant seem to be of the opinión that a steam motor line can be run on a public highway. Judges Morse and McGrath say that it cannot, while Judge Champlin contents himself saying that the law isn't settled. The only point that the case decides is that if the line is run it must be on the grade of the highway. After stating the various pleadings in the case and the point raised that the charter of the road was not valid, Judges Long and Grant say: We shall not, therefore, discuss the constitutional questions raised as to the act, or the proper and legal organization of the defendant company. If the defendant company is not legally and properly organized under the act, or if the company is attempting to exercise corporate franchises not conferred by the act, it is a matter between the defendant company and the state, The mere usurpation of corporate authority does not confer upon an individual the right to bring suit, to restrain an unlawful exercise of authority. If the state chooses to waive it, or permit the action, no others can complain so long as personal or property rights of the individual are not invaded or affected. The two principal questions raised Dy complainonts counsel are : 1. That the use of steam. as a motive power is an additional burden or servitude upon their lands. 2. That the mode or manner of construction of the road bed constructed by the defendant company isalso an additional burden or servitude upon their lands. The testimony shows that the motor used is what is known as Porter's Noiseless Motor; that it is operated by steam and enclosed like an ordinary street car, and about the same size, makes less noise than an ordinaTy electric street car with overhead wires. It is so arranged that the steam makes a continuous circulation, making no noise by emission of steam, and that the smoke is consumed. It was held in Detroit City Railway vs. Mills, supra, that an ordinary street railway is not an additional burden or servitude where the fee of the street is in the abutting owner, and there is almost a concensus of judicial opinión in this direction. People vs. Kerr, 27 N. Y., 183, Clinton vs. Cedar Rap. & Mo. R. R. Co., 24 Iowa, 435. New Albany & S. R. R. Co. vs. O'Daily, 13 Inn.,353. Dillon's Municipal Corporations, 723. It was also held in that case by this court that the use of electricity as a motive power did not créate an additional servitude or burden upon the lands of the abutting owners. The manner ia which the road of the defendant company is to be operated by this steam moter as it is, is no more of a burden or servitude upon the lands of the abutting owners than an electric car with its overhead wires. It is no more obstruction to the street, and no more of an object calculated to frighten horses passing and repassing upon the highway. Section 40 of the Act of 1867 above quoted, expressly provides for the use of steam as a motive power power upon street railways operated in cities whenever the municipal authorities authorize it. In Briggs vs. Lewiston & A. Horse R. R. Co., 79 Me.. 363, the use of steam as a motive power upon street railways was expressly recognized. We think the complainants are not entitled to the relief asked for by theirtbill by thereason of the use of steam as a motive power in the manner in which it is shown the defendants used it. It appears that before the defendant company was organized a company known as the Ann Arbor, Ypsilanti & Detroit Street Railway Company had procured from the township board of the township of Ann Arbor the right and privilege to construct, maintain and opérate this street railway by reason of permission granted to it in writing by the supervisor and commissioner of highways of that township, granting permission and right to lócate, establish, construct and maintain its road over that highway, and to use thereon animal, motor or electric power. Some question is raised by complainants' solicitor in this record as to the authority thus granted. Without entering upon that question at length, it is sufficient to say that we are satisfied that there was proper authorization by the township to construct, maintain and opérate this road by the defendant, and unless the complainants are in some manner effected in their private and property rights, the defendant can not be interfered with by them in the operation of its road. The second question raises the important point in this case, and that is the manner or mode in which the defendant's road is constructed in and along the highway. A street railway, the rails of which are laid to conform to the grade of the surface of the street, and which is otherwise so constructed that the public is not excluded from the use of any part of the street as a public way, carrying passengers, stopping at street crossings to receive and discharge them, is a street railway, whether it be operated by horses or electric power, or by steam motor, such as is shown to be used by the defendant in this case. The testimony shows, however, that since issue was joined in this case the defendant company has completed the construction of its road, which had been mostly completed at the time the bill was flled; that the road as constructed runs along upon the highway within two or three feet of the road fence upon complainants' land; that the road bed does not conform to the grade of the street, nor pass over and along the surface of the ground next to the fence, but that the grade for the road bed is made by cuts and filis. In some places the cuts are two feet in depth and the filis as great. Ditches are dug along the side of the road bed on either side. Upon the road bed so constructed ties are placed to the number of 2,000 to 3,000 to the mile. Upon these ties is placed a "T" rail such as is ordinarily used in the construction of a railroad for commercial purposes, except that the "T" rail is somewhat lighter. The complainants claim that this is a use of their property not warranted by the act under which the company is organized, and a taking of their private property for public uses without compensation; that it depreciates che valué of their lands in that they are unable to pass over from the highway to their lands without crossing this road bed at great inconvenience, and that they are unable to hitch horses or other animáis along the highway fence. The complainant's lands have a frontage on the highway of about 40 rods. The act under which the defendant is incorporated confers no power upon it to construct, maintain and opérate such a road without compensation to the property owners abutting thereon, and the township authorities could confer upon the defendant no such power. It is from its mode of construction in all essentials a commercial road, and not an ordinary street railway. It is not constructed as street railways, are usually constructed on a level with the surface of the street, so that vehicles maypass and repass over it. As constructed it blocks up the highway so far as the complainant's use of it is concerned, in going to and from their premises, and is an additional burden upon their lands. The rule is well established in this state that the dedication of a street to the public does not authorize it to be used for an ordinary railroad track, and the municipal authorities cannot authorize it to be so used without compensador to the adjacent owners. Grand Rapids & Ind. R. R. Co. vs. Heisel, 33 Mich., 62. Grand Rapids & Ind. vs. Heisel, 47 Mich., 393. Reidinger vs Marquette & Western Ry. Co., 62 Mich. 29. It was said by Mr. Justice Cooley in Grand Rapids & Ind R. R. Co. vs. Heisel, supra, "A street railway for local purposes so far as constituting a new burden is supposed to be permitted because it constitutes a relief to the street; it is in furtherance of the purpose for which the street is established and relieves the pressure of local business and local travel instead of constituting an erabarrassment. . . . It is enough that the use of the street for a city railway is a proper use and therefore a lawful use." Brooklyn City, etc., R. R. Co. vs. Coney Island R. R., 35 Barb., 364. Brooklyn Central, etc., R. R. Co. vs. Brooklyn City, etc, R-. 33 Barb., 420. People vs. Kerr, 27 N. Y. , 188. New Albany & Salem R. R. Co.vs.O'Dailey, i2lnd., 551. Brown vs. Duplessia, 14 La. Ann. 842. Elliott vs. Fair Haven, etc., R. R. Co., 32 Conn., 579. Hobart vs. Milwaukee City R. R. Co., 27 Wis., 194. Speaking further in that case the learned Justice said, " But we cannot say the same in the case of the ordinary railroad In such case it cannot be questioned that the laying of the railroad track in the highway without first legally appropriating the land for the purpose, and without making compensation is a legal wrong to the adjacent owner; the track to him is wrongfully laid:" In Riedinger vs. Marquette & Western R. R. Co. supra, a bilí was filed to restrain the defendant comjany from constructing a railroad over and across Front and Superior streets in the city of Marquette. The bill was dismissed in the court below and complainants appeal to this court, where, upon a ïearing, a decree was entered for jerpetual injunction against this use of the street unless within six months measures should be taken to condemn the complainant's rights in the street and compénsate him therefor. Defendant contends however, that the complainant, Theodore S. Nichols, is estopped from making this claim by reason of a release of the right of way over complainants' premises. The writing is not put in evidence, and complainant contends that it was procured by fraudulent representations; that at the time of its execution the defendant company representated to him that they were to build a street railway similar to that in the city of Ann Arbor, and upon this understanding he consented to the construction of the road in front of his premises. We think the complainant borne out by this record in that claim and that the complainants are not estopped from insisting upon their rights here to have a road - if one is to be built at all by defendants - such as was represented to him would be built; that is, an ordinary street railway conforming to the grade of the street. In view of these facts as to the mode in which the road is constructed, we are satisfied that the complainants are entitled to the injunction prayed. The decree of the court below will be reversed and decree entered in this court granting a perpetual injunction to the complainants, enjoining and restraining the defendant corporatlon from maintaining and operating its road in the manner in which it is constructed across the complainants' premises. Complainants will recover the costs of both courts. Chas. D. Long, C. B. Grant. I think this case should be reversed, but I do not think that the law, as yet, has been settled in this state that an electric street railway is not an additional burden to the highway, and I am satisfied that a steam railway is such a burden. The injunction should be granted as prayed. Allen B. Morse, John W. McGrath. I concur in the reversal upon the ground stated in the opinión of Mr Justice Long, but I do not concur in that part of the opinión which states that it is settled law in this state that a street railway operatec by steam or electricity is not an additional servitude upon a street or highway.