Taggart v. Newport St. Et. Co.

• Decision Date: 18 January 1890
• Citation: 19 A. 326,16 R.I. 668
• Parties: TAGGART et al. v. NEWPORT STREET ET. CO.
• Court: Rhode Island Supreme Court

19 A. 326

16 R.I. 668

TAGGART et al.

v. NEWPORT STREET ET. CO.

Supreme Court of Rhode Island.

Jan. 18, 1890.

Bill for injunction.

Julien L. Baires, Arnold Green, and Patrich J. Galvin, for complainants. Francis B. Peckham and Barius Baker, for respondent.

DURFEE, C. J. This bill is brought by the complainants as abutters on certain streets in the city of Newport along and over which the tracks or rails of the defendant company's street railway have been laid. The object is to have the company enjoined from erecting or maintaining certain poles and wires in the streets in front of their estates. Said poles were erected to support said wire over said tracks for the conduction of electricity, which is used as a motor for the passenger-cars traversing said tracks. The poles are placed along the margins of the sidewalks of said streets, about 120 feet apart, and were placed so by permission of the city council of the city of Newport, given by ordinance. The case was submitted on bill and answer, no replication having been filed. The bill alleges several grounds of relief. We will consider them severally, as alleged.

The first ground is that the company did not give notice as required by section 2 of the act of incorporation. Said section provides for notice to abutters, to be given by publication and posting, at least 14 days before the locution of tracks proposed to be laid. The bill alleges that the purpose for which the notice was required was to apprise the abutters "of the nature and extent of the proposed use of the streets and highways," and to afford them an opportunity to appear before the city and town councils having power over the matter, and be heard in relation thereto. The bill admits that a notice was given in August and September, A. D. 1888, but avers that it was defective, in that it did not set forth that any other than horse-power was intended to be used. The answer states that said notice did not refer to the matter of power, and maintains that any reference to it therein was unnecessary, since section 2 prescribes notice only before action in regard to the location of the tracks. This is so. It is section 5 that relates to the power. That section provides that "said tracks or road shall be operated and used by said corporation with steam, horse, or other power, as the councils of said city and towns may from time to time direct." No notice is required before such direction. The ordinance in regard to location was passed January 24, A. D. 1889. It permitted the use of horse-power only. The ordinance permitting the use of electricity was passed March 5, A. D. 1889. It seems to us that the latter ordinance was clearly authorized by section 5, in the words above quoted. The previous location of the tracks was not affected thereby.

The second ground alleged is that the right to use electricity is not given. The language in regard to the power to be used is that above quoted, namely, that the road shall be operated "with steam, horse, or other power, as the councils of said city and towns may from time to time direct." The complainants contend that the word "steam" must be struck out, because it has been decided that steam cannot be used without compensation to the owners of the fee for the new servitude imposed, and no compensation is provided for, and because", "steam" being struck out, "other power" must be construed to mean other power similar to horse-power, i. e., other animal power. We do not find the argument convincing. Allowing that "steam" must be struck out for the reason given, it does not follow, in our opinion, that "other power" must be construed to mean other animal power. Horsepower is the only animal power which has ever been used for the traction of street railway cars in our northern cities, and it is the only animal power which could have occurred to the general assembly as fit to be used. The suggestion that "other power" may mean mules cannot be entertained. The act of incorporation was passed in the winter of 1885, when the idea that electricity might be brought into use as a motor was already familiar; and nothing seems more probable than that the words "other power" were inserted with a view to its possible employment. We do not think the second ground valid.

The third ground is that the erection of the poles on the sidewalks is, in effect, prohibited by the act of incorporation. The seventh section, which relates to the repairs of the streets where the tracks are, and to damages for negligence on the part of the company, concludes as follows, to-wit: "And said corporation shall not incumber any portion of the streets or highways not occupied by said tracks." The poles are certainly in a portion of the streets not occupied by the tracks; but do they "incumber" that portion, in the meaning of the word as it is used? To incumber, according to Webster, is "to impede the motion or action of, as with a burden; to weigh down; to obstruct, embarrass, or perplex." To incumber, as used in said section 7, doubtless means to obstruct or hinder travel, by putting things in the way of it. The poles are very slightly in the way of travel, being placed, as hitching posts, lampposts, electric light poles, telegraph and telephone poles are placed, near the front margins of the sidewalks. We are not inclined to say, however, that they do not incumber because they are placed as they are, but only that it does not follow that they incumber because they are so placed. Take, for instance, a lamp-post, or an electric light pole. It is slightly in the way, and, if it served no useful purpose in regard to the street, might justly be deemed to incumber it. But it supports a lamp or an electric light which illuminates the street at night, and so improves the street for its proper uses. It is not, therefore, an "incumbrance," in any proper sense of the word. The real question is, as it seems to us, whether the words, "and said corporation shall not incumber any portion of the streets or highways occupied by said tracks," were intended to restrain the city council of the city of Newport from authorizing the use of electricity for a motor, in the manner in which is used by the company. We have already decided that the council has power, by section 5, to authorize the use of electricity; so that the question relates only to the manner of using, and is whether the council has power to authorize the use in said manner. It seems to us that the provision that the tracks or road shall be...