Williams v. City Elec. St. Ry. Co.

• Decision Date: 26 March 1890
• Citation: 41 F. 556
• Parties: WILLIAMS v. CITY ELECTRIC STREET RY. CO.
• Court: U.S. District Court — Eastern District of Arkansas

41 F. 556

WILLIAMS v. CITY ELECTRIC STREET RY. CO.

United States Circuit Court, E.D. Arkansas.

March 26, 1890

Syllabus by the Court

The difference between railroads for general traffic and street railroads consists in their use, and not in their motive power. A railroad, the rails of which are laid to conform to the grade and surface of the street, and which is otherwise constructed so that the public is not excluded from the use of any part of the street as a public way; which runs at a moderate rate of speed, compared to the speed of traffic railroads; which carries no freight, but only passengers from one part of a thickly populated district to another in a town or city, and its suburbs, and for that purpose runs its cars at short intervals, stopping at the street crossings to receive and discharge its passengers,-- is a street railroad whether the cars are propelled by animal or mechanical power.

Where a city is authorized by its charter to contract for the construction of street railroads, it may authorize such railroads to be operated by animal or mechanical power.

The operation of a street railroad by mechanical power, when authorized by law, on a public street, is not an additional servitude or burden on land already dedicated or condemned to the use of a public street, and is therefore not a taking of private property, but is a modern and improved use, only, of the street as a public highway, and affords to the owner of the abutting property, though he may own the fee of the street, no legal ground of complaint.

Sam W Williams, for plaintiff.

John B Jones and John M. Moore, for defendant.

CALDWELL J.

A statute of the state of Arkansas providing for the organization and defining the powers of municipal corporations provides that--

'Sec. 754. They shall have power to provide for lighting the streets and alleys of the city by gas or otherwise, and to authorize the construction of gasworks and of street railroads. Sec. 755. For the purpose of providing water, gas, or street railroads, the mayor and council may contract with any person or company to construct and operate the same, and may grant to such person or company, for the time which may be agreed upon, the exclusive privilege of using the streets and alleys of such city for such purpose or purposes. ' Mansf. Dig.

On the 6th day of December, 1887, the city of Little Rock, acting on the authority of the above-quoted sections of its charter entered into a contract, in due form, with the defendant, by the terms of which the defendant was granted the right to construct, maintain, and operate, on certain named streets in the city, 'a street railway, with iron or steel rails, to be worked by electric or steam motors, or by cable, or by other power adapted to operating street railways. ' In pursuance of this contract, the defendant constructed, and is operating by use of steam motors, a street railroad, on some of the streets embraced in its contract. The plaintiff owns a lot, with a dwelling-house thereon, on the southeast corner of block 103; and the defendant's road runs around the corner of the block, and its track is in or near the center of the streets in front and on the side of the plaintiff's lot. The plaintiff alleges that the defendant's engines emit smoke, gas, and steam, and produce loud noises, to a degree that renders them a public nuisance; that they render the approach to plaintiff's premises unsafe; and that by reason thereof the plaintiff's property has been damaged in a large sum. The prayer of the bill is 'that, unless defendant shall speedily assess and pay damage, and condemn said lot to public use, that it be enjoined from running its trains by steam along said streets, and that said nuisance be abated, and, until defendant shall so condemn and compensate plaintiff, that it be restrained from using said track to run cars over it by any sort of power, or means of locomotion. ' The plaintiff's contention is that the sections of Mansfield's Digest above quoted must be restricted in their operation to street railroads propelled by animal power, and that street railroads propelled by steam, or other mechanical power, fall within the following provisions of Mansfield's Digest, in the...