right created to ask special favors from the public in aid of a private business is not, so to speak, a float, but an actuality. It is not consistent with the dignity of a sovereignty that what it may grant is to be withheld if not applied for. For example, the privilege to demand the exercise of the right of eminent domain is as potent as though it were never exercised. Were this not so, its exercise as to one citizen ought to have no effect so far as the interests of other citizens are concerned. It hangs over the heads of all like a sword of Damocles. Our subject brings us into consideration of the things which the history of our common law shows have had attached to them. This is in return for the public benefits they have disproportionately enjoyed. The principle in the maxim qui sentit commodum, sentire debet et onus-who feels a benefit, should accept a burden-applies. This is especially true in a country, the genius of whose rule is that public law grants to no one at public expense exclusive benefits or privileges. A consideration is the irrebuttable presumption of every public grant to a private citizen. What this history shows was exacted of every beneficiary for what specially was accorded to him out of common right is a part of our common law. We deduce therefrom the conclusion of the limit of the exaction, under constitutional safeguards, in American law. Also, from the history of instances deductions will be drawn in the application of principles, underlying or specifically declared, to new enterprises, new agencies and new forces. These add to or render obsolete the old, and bring the new under the old principles because of the maxim last above stated. New discoveries have wonderfully widened activities, both in purely private businesses and in those which take on a quasi-public character. Sometimes the line of distinction between them shades almost imperceptibly to one or the other side. Statutory declaration, also, may determine where an activity may belong. If, however, there is plain invasion of private right, the statute may be deemed void. Herein it will be deemed necessary to consider the question of monopoly and its lawfulness. Monopoly would seem to be a factor in the solution of such a question, and this would be a question rather of fact than of law. Having passed the consideration of the existence of public interest in businesses privately conducted, we reach the point of the nature of the burden that may be imposed, and the obligation of its just imposition. It may be remarked, also, that franchises, in this work, will be considered in a twofold aspect, that is to say, as a privilege enjoyed by reason of a private business being affected by a public interest, and as granted to an artificial being, that is to say, a corporation. Text books and decisions often speak indistinguishably of public service corporations when they state principles applicable, purely, to the nature of businesses conducted, whether by a corporation, an unincorporated company, a partnership or an individual. Notably it may be said that in Massachusetts companies carrying on businesses affected with a public interest are seldom, if ever, incorporated. The title for this book has been chosen, among other reasons, to include businesses, whether or not they may be owned or conducted by artificial, as distinguished from natural, persons. Finally is considered an aspect which belongs entirely to our dual system of government. The states, being the ultimate owners of all property, have delegated to our general government a certain control thereover by virtue of the commerce clause in our Federal Constitution. The Congress calls this control into exercise where use does not directly interfere with the operation of that clause. For its more complete protection the Congress specifically provides. When it so provides its will is the supreme law of the land insofar as in conformity to the purpose of such clause and there is no repugnance to other federal constitutional guarantees. That will can no more be interfered with by state constitutions than by state statutes. Statutes by Congress, respecting railroads and other instrumentalities of interstate commerce, are endeavored to be fully treated, and also the control they exercise over the instrumentalities of that commerce. The regulation of public service companies and the regulation of the instrumentalities of commerce, it will be shown, have much in common, but depend on different principles, the former arising out of owners of property seeking benefits from the public, the latter from a government with delegated powers imposing a burden on property. The title selected for this work-State and Interstate Utilities-indicates that it will be attempted to state the law in an independent or separate way, where the two classes of utilities need to be distinguished. To this work is added an appendix of the operative parts of the Commission Laws of the States and Territories, and thus the principles expounded from common law times and embodied in statutory enactments are concretely applied, and the expanding effect of those principles is exemplified through rulings by administrative tribunals. PART I The Common Law as to Property CHAPTER I. EASEMENTS IN THINGS OF COMMON RIGHT 1. Monopoly against freedom of trade. 2. 3. Exclusive right not necessarily monopoly. Things of common right in their nature indestructible. 4. Grantee of easement taking with notice. 1. Monopoly Against Freedom of Trade.-From Magna Charta there has come down to us prohibition of monopoly against the freedom of trade and traffic, and, therefore, it was held in 1607 that a royal grant to a subject of the sole right to import into the realm playing cards and to be secure against others making them in England was void.1 In this case it was insisted that the grant was valid because "playing at cards is a vanity." But it was said: "It is true, if it is abused, but the making of them is neither a vanity or a pleasure, but labour and pains." Then there is a distinction drawn between monopoly and license as follows: "It is true that none can make a park, chase or warren without the King's license, for that is quodam modo (in a measure) to appropriate those 1 The Case of Monopolies, 11 Coke 84b. |