Taylor v. Portsmouth, K. & Y. St. Ry.

• Decision Date: 03 January 1898
• Citation: 91 Me. 193,39 A. 560
• Parties: TAYLOR et al. v. PORTSMOUTH, K. & Y. ST. RY. MARSHALL v. SAME.
• Court: Maine Supreme Court

39 A. 560

91 Me. 193

TAYLOR et al.

v. PORTSMOUTH, K. & Y. ST. RY.

MARSHALL

v. SAME.

Supreme Judicial Court of Maine.

Jan. 3, 1898.

(Official.)

Report from supreme judicial court, York county.

Bills in equity by James Taylor and others, and by Edward S. Marshall, respectively, against the Portsmouth, Kittery & York Street Railway, heard together, upon bills and proofs, in the court below, upon prayers in the bills for a preliminary injunction, to restrain the defendant from constructing its road over and upon the highway leading through York harbor, where it was alleged the construction of the same would interfere with the plaintiffs' rights as abutting owners and owners of the fee to the center of the highway. The preliminary injunction having been denied, the cases were reported to the law court for full and final hearing. Bills dismissed.

G. M. Seiders, F. V. Chase, Frank D. Marshall, and James T. Davidson, for plaintiffs.

H. M. Heath and C. L. Andrews, for defendant.

HASKELL, J. Bill in equity by the abutting owners of land on a public way to enjoin a railway company from use of the way because such use creates a public nuisance.

Nothing is better settled in this state than that equity will not enjoin a public nuisance on the application of an individual, either in his own behalf or in behalf of himself and others of like interest who either do or do not join in the application, unless some special damage to the individual, not suffered in common with the public generally, has been sustained. Pom. Eq. Jur. § 1349, and cases cited. Equity supplements the law, and there is no need of remedy where there are no damages at law. Staples v. Dickson, 88 Me. 362, 34 Atl. 168; Holmes v. Corthell, 80 Me. 31, 12 Atl. 730.

The bill also seeks an injunction because the plaintiffs are not only abutters, but owners, of the fee of the way subjected to the servitude incident to public ways, and that the defendant's use is an additional servitude, for which they are entitled to compensation, that must first be paid before the servitude may be enjoyed; and this is the main controversy in the cause, for, if the defendant's use of the way be no additional servitude, then the plaintiffs' right in the way and its use are merged with those of the public, and the public alone, by its laws, must define, control, and regulate such use.

What servitude, then, does the public acquire by the taking of land for a public way? It is the right of transit for travelers, on foot and in vehicles of all descriptions. It is the right of transmitting intelligence by letter, message, or other contrivance suited for communication, as by telegraph or telephone. It is the right to transmit water, gas, and sewage for the use of the public. It is a public use for the convenience of the public, to be molded and applied as public necessity or convenience may demand, and as the methods of life and communication may from time to time require. Society changes, and new conditions attach themselves. The change evolves new ways of doing things, new methods of communication, new inventions for travel. When the way is constructed, the landowner has his compensation, not only for the land taken, but for the damages sustained, although usually benefits are conferred rather than injury inflicted. These damages are assessed as compensation for a surrender of his land to the public use for travel and transit, not only by the methods then applied, and for the volume then existing, but for all time and for such future use as the exigencies of the time may develop.

When the way has been created, the public controls its use, and regulates its repair by laws that the legislature shall enact. Under these laws, the use must be governed, for the people have a right to say what use will best subserve their interests. They have now said that ways shall be maintained "so as to be safe and convenient for travelers with horses, teams, and carriages." That is now the criterion, and a use that infringes upon that rule becomes an unlawful use, and may be prohibited by public prosecution. That rule may be changed, for the public, by law, may regulate the use of its public ways in such manner as the legislature may think will best serve the public interest.

This doctrine allows the public to control the use of public ways for travel and communication, as it may be pleased, from time to time, to do. The kind of use that may be permitted is of no consequence to the abutter. He must take his chance with the rest of the community in which he lives. Some cases may seem to work hardship, but it is better so than to embarrass the convenience of the people, and cripple and annoy enterprises which the present and future may recognize as necessary for the good and happiness of society.

No matter whether the way be used by the lone traveler on foot or on his wheel, by the two-horse chaise or four-wheeled carriage, by the dray, cart, or coach, or by cars that may be permitted...